Burriss: Scalia's death ignites firestorm
Wednesday, February 24, 2016 11:22 am
By LARRY BURRISS
With the death of Supreme Court Justice Antonin Scalia, debate is suddenly raging about what the Constitution means, and how it should be interpreted.
Of course, here we're concerned about interpretations of the First Amendment, asking about the original meaning, and are the few words in the amendment open to interpretation to fit changing times and morals?
So to start, what exactly do the words "Congress shall make no law" mean?
Well, if you're a strict constructionist the words mean what they say: Congress cannot pass any laws regulating speech and press. But such an absolutist position has never held a majority of the Supreme Court. Indeed, such a position is, in practical terms, indefensible.
So of course there are some restrictions on the press. Otherwise we couldn't have any laws about child pornography, or prohibitions about revealing the names of covert government agents, or providing detailed information about spy satellites.
Now once we get past the "no law" phrase, how should the terms "press" and "speech" be interpreted.
Well, the original meaning of "press" was newspapers. Obviously radio, television, movies or the internet weren't around back in 1789, so the original intent does not apply. Unless we ask what the writers intended, and what the legislative history means.
In this case, the notion of a free press was to insure wide and robust discussion of issues of public importance. And the press, what we now call "the media", were to provide the forum for that discussion.
Likewise, in the early days "speech" meant just that, the spoken word. Now, the notion of speech has been expanded to include marches, protests, armbands and banners. Do we really want to go back to the original meaning? I think not;
In the study of jurisprudence there is something called "the law of unintended consequences," the idea that strict application of the words of the law may lead to unforeseen problems. So one must be careful of absolutes! But as my father used to say, "moderation in all things, including moderation."