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Lessons for Israel in American Constitutional Law Freedom of Expression: Part I February 28, 2009

Posted by Daniel Downs in Constitution, family, Freedom of Speech, marriage, pornography, Supreme Court.

If there is one thing that characterizes America apart from pop and pizza, it’s pornography. Pornography in the United States is a multi-billion dollar business. It’s an engine that corrupts youth.

Pornography graphically reduces the human to the subhuman. It transforms love into lust. It undermines marriage and the family. It lowers not only the moral but also the intellectual level of a society. Pornography therefore undermines a nation’s security. A ruling of former Supreme Court president Aharon Barak indicates he does not know this.

But then he does not know that phonograph fosters self-indulgence, hence undermines public spiritedness or dedication to the common good and therefore erodes Israel’s ability to withstand her enemies Similarly, pornography corrodes the sense of shame, hence of honor. A nation without honor cannot long endure.

The flood of pornography or “porn” in the United States began in the late 1950s as a direct consequence of its Supreme Court’s libertarian interpretation of the First Amendment of the Constitution, which states, in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” (Unfortunately, Israel’s Supreme Court has adopted American jurisprudence on this issue, and with the same predictable consequences: pornography is thriving in the Holy Land. Let’s pause and open our eyes.

The First Amendment prohibits only the Congress, not the States, from abridging freedom of speech and press. In fact, the first eight amendments of the Constitution, which comprise the Bill of Rights, were meant to limit the powers of the national government, not those of the state governments.

This was the ruling of Chief Justice Marshall in the case of Barron v. Baltimore, decided in 1833. The ruling was affirmed even after the ratification of the Fourteenth Amendment in 1868. Thus, in Hurtado v. California decided in 1884, the Supreme Court rejected the contention that the due process clause of the Fourteenth Amendment applied to the States the restrictions the first eight amendments applied to the national government.

This ruling was reaffirmed as late as Twining v. New Jersey in 1908. Not until Gitlow v. New York in 1925 did the Court hold that, “For present purposes we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by he due process clause of the Fourteenth Amendment from impairment by the States.”

The original Constitution must be understood before the amendments to the Constitution can be properly interpreted. Thus, the constitutional principle of federalism, affirmed by the first ten amendments, stands on the distinction that the Constitution imposes different restrictions on the powers of the national and state governments. For example, whereas only the States are constitutionally prohibited from impairing the obligation of contracts, only Congress is constitutionally prohibited from abridging freedom of speech and press (leaving open the possibility of such action, under emergency conditions, by the Executive).

Besides, the First Amendment ought not be interpreted in abstraction from the Constitution as a whole. An amendment may alter, but it does not nullify, the Constitution. Accordingly, the words “Congress shall make no law … abridging the freedom of speech, or of the press” may not be construed in such a way as to nullify Congress’s authority “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [enumerated in Article I, Section 8].” Virtually any one of these powers may necessitate certain limitations on freedom of speech and press.

Consider, for example, the power of Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Or consider the power of Congress to “provide for the common Defense.” Contrary to prevailing opinion, there can never be a simple opposition between the common defense and freedom of expression. For to defend the nation is to preserve its way of life, a most important aspect of which is freedom of expression.

Conversely, if certain kinds of expression endanger national defense, then they also endanger freedom of expression. Thus, by virtue of its power “To provide for … disciplining the Militia,” Congress may establish a code of military law making punishable any speech or publication causing insubordination in the armed services (and in peacetime no less than in times of national emergency).

This illustrates the organic principle of political life, one formulation of which may be stated as follows: Absolutizing the value of any part of a whole is destructive of the whole, hence of the part as well. If, therefore, the First Amendment is to function as a part of an organic whole whose parts reinforce and not obstruct each other, the injunction “Congress shall make no law … abridging the freedom of speech, or of the press” must be construed in such a way as to protect this freedom without undermining other constitutional values on which that freedom ultimately depends.

Two general alternatives are possible. Either certain kinds of expression must not be included under the category of freedom of speech and press, or, certain kinds of restraints on freedom of speech and press must not be included under the category of an abridgment thereof. I shall discuss these two alternatives in the next article.

(to be continued)

By Prof. Paul Eidelberg, President of The Foundation for Constitutional Democracy



1. Mike - March 1, 2009

Just passing by.Btw, you website have great content!

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