Misunderstanding the First Amendment (in re: Assange and Wikileaks)

In an excellent article by Jacob Sullum of Reason Magazine, "Is Julian Assange a Journalist? For First Amendment Purposes, It Doesn't Matter"  , the author argues that the First Amendment is not restricted to journalists.


In the comments section, a lengthy dispute revolves around the applicability of a 1917 law restricting release of secret documents, and whether Assange qualifies for "protection" under the First Amendment if he's not a US citizen. This comment regarding the latter point is typical:


"Since when does the first amendment apply to those not living in the United States?"


This goes to the heart of a serious misunderstanding of the First and other Amendments making up the Bill of Rights. It's a mistake I see repeated endlessly in the press and from the lips of pols.

The First Amendment does not "apply" to specific people; it does not "guarantee" the right of free speech and press; it does not carve out an exception to the infinite power of the State; it is not a limitation that should be worked around or bypassed when inconvenient.

The First Amendment (and the other 9) is an *emphatic reminder* from the Founders that the Constitution GIVES NO POWER OR AUTHORITY to the U.S. government to exercise any control over speech and press. Period. The Constitution does not grant such power, and this amendment underlines the point, and *attempts* to block workarounds by ambitious politicians and bureaucrats. It emphasizes the point that the government "shall make no law... abridging the freedom of speech, or of the press."

If the government is granted zero authority to limit free speech and press, the question of whether the individual in question is a citizen of the U.S. is completely irrelevant, as is the question of whether he is a journalist. The First Amendment does NOT say "The government shall make no laws regarding freedom of speech or of the press -- for citizens, or for journalists as defined by the government."

Does it?

No interpretation of the First Amendment can create or invent authority for the government to make laws restricting freedom of the press or freedom of speech. If you happen to find a 1917 law that appears to say otherwise, then it's an argument for viewing that law as an unconstitutional power grab by the government -- that law does not override the First Amendment.

I am repeatedly disappointed to see conservatives and liberals alike view the Constitution as an inconvenient block to Righteous Action, one that needs to be bypassed regularly -- often by tortured interpretations of other parts of the Constitution that serve to make the Constitution and its Bill of Rights into pure nonsense (hence the "Ink Blot" interpretation of the 9th and 10th Amendments).

The Constitution is a (limited) grant of authority to the federal government, beyond which it may not go. It is not a list of citizen rights. Citizens have all rights not otherwise limited by the grant of authority (and there's an amendment that says that too, which is also generally ignored, and with which you are likely not familiar either).

Surprising article in NY Times on Ron Paul's rising star in Congress....

"Ron Paul, G.O.P. Loner, Comes In From Cold" is the headline, but they mean his appointment to the chair of the House subcommittee on domestic monetary policy, which oversees the Federal Reserve as well as the currency and the valuation of the dollar -- his favorite subjects and his bete noire combined into one handy package.

The story is both fair and richly interesting. Give it a read! (I have been a Paul enthusiast for more than a decade, long before he was anybody more than "Dr. No" of the House.)

"Governance in the Age of Wikileaks" -- TNL

A colleague, Tristan N. Louis, digs deeper into the whole Wikileaks controversy than you've likely read elsewhere -- in his three-parter (be sure to read all three parts) he considers the illegal actions of government opponents to Wikileaks:

http://www.tnl.net/blog/2010/12/12/governance-in-the-age-of-wikileaks-part-1/

Breaking the law by supporters of Wikileaks:
http://www.tnl.net/blog/2010/12/12/governance-in-the-age-of-wikileaks-part-2/

and freedom of expression in the age of Wikileaks:
http://www.tnl.net/blog/2010/12/12/governance-in-the-age-of-wikileaks-part-3/

Well worth reading all three, for a fully rounded perspective!

mac

Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies | Glenn Greenwald | Cato Institute: White Paper

Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies | Glenn Greenwald | Cato Institute: White Paper

This is important reading as California prepares to vote on marijuana legalization. Portugal made radical changes a decade ago -- how did they do it, and was it a success?

Time to Reconsider our Overseas "Defense" Commitments....

This letter appeared in the WSJ today, 8 Oct. 2010, and I agree with it entirely; my emphasis added:

Less Government Means Less Defense Spending, Too

Arthur Brooks, Edwin Feulner and William Kristol claim that military spending is not the prime driver of our current fiscal crisis, but the Pentagon accounts for 23% of the federal budget ("Peace Doesn't Keep Itself," op-ed, Oct. 4). It is inconceivable that this spending should be exempt from scrutiny in a time of soaring deficits.

Rather than Congress constantly writing a blank check, the process of military budgeting should begin with a discussion about security necessities and their costs. That isn't a discussion that Messrs. Brooks, Feulner and Kristol seem anxious to engage in—unsurprisingly, since all three support the disastrous military interventions in Iraq and Afghanistan.

Of course, cutting spending without a corresponding reduction in commitments is a recipe for overburdening service members taxed by too frequent deployments to far-flung places. But it is already obvious that most of what America spends on its military—often erroneously labeled "national defense"—really defends others who can and should defend themselves.

It's time for advocates of free markets and limited government to recognize that a vast military presence around the world is utterly inconsistent with those ideals. If we agree that government intervention domestically often has unintended, harmful consequences, we should recognize that the same principle holds true internationally, in spades. If we believe that the Constitution created a government whose most important duty is to "provide for the common defence" and "secure the Blessings of Liberty to ourselves and our posterity," we should not be so willing to deploy the sharp end of that government's power in support of those who are not parties to our unique social contract.

The Brooks-Feulner-Kristol approach to military spending amounts to another form of foreign aid, a massive wealth transfer from Americans to non-Americans, helping them finance generous social welfare systems. It is time to get our allies off the dole.

Ed Crane

Christopher Preble

The Cato Institute

Washington

Yes: "Let's Repeal Congress' Blank Check" (for war)

Barbara Lee of Oakland, California is my Congress Critter, an archtype in most ways of the California left-liberal Democrat  -- so naturally, she and I have little in common ideologically.

But as a Libertarian, I was delighted at her editorial today in Sept 30, 2010 San Francisco Chronicle, headlined "Let's repeal Congress' blank check"  -- referring to the "Authorization for the Use of Military Force," passed in 2001 in the heat of the 9/11 attacks, which is the basis for the past nine years of war around the world..

I am happy she is pressing to end the several wars we are currently engaged in -- but more delightful is a particular insight she gives:

"I was the only member of Congress who voted against [the bill] because I knew some would use it as a blank check to wage war anywhere in the world."

Well, looks like she called that one right, doesn't it?

What's wonderful about this is not just the amazing bravery she showed in voting against "broadly authorizing the president to use 'all necessary and appropriate force' " immediately after these acts of terror. That's no way to get the pundits on your side.

It's her critically important insight into how government works. Her paying attention to the long-term effects of such grants of power is in full agreement with Libertarian thinking -- and even more so with the thinking of the Founders.

Back in the 1960s, as the Vietnam problem was enticing the US into deeper involvement, a confused report of North Vietnamese ships firing on US ships "observing" in international waters just off the coast of North Vietnam was used to create an uproar, in the midst of which President Lyndon Johnson (a Democrat this time) submitted a request, the Gulf of Tonkin Resolution, similar to the more recent one mentioned above, to give the president authority to pursue the malfactors of North Vietnam with all necessary and proper force. This bill passed in the Senate 99 to 1 (who was the sole holdout, anybody remember?). This bill, now law, was used as the primary justification for everything that followed in our undeclared war in Vietnam. Just as the current authorization justifies our undeclared wars in Iraq, Afghanistan, and if we choose, future wars in Iran and Somalia (and anywhere else we claim to think is influenced by al-Qaida).

The historical parallel with Barbara Lee's statement above: Years later, when enthusiasm for the war faltered, Senator Fulbright, a staunch Democrat kingmaker, said that he regretted voting for that authorization, in hindsight. His comment, approximately, was: I forgot that I was voting this power not just to this President for this moment, but to any President at any time.

Each grant of power must be viewed in this light: Laws are rarely if ever written very narrowly, but tend to be written to grant sweeping authority to act with considerable discretion -- we tend to empower the authorities to "do what's right." Mainly because "our guy" is in power and knows what we mean by "what's right."

And then one day power changes hands and the other guy is holding the reins of power -- and, dammit, he's using that power to do what *he* thinks is right. How dare he! This is what happened when Reagan became president and tried to use the power Democrats had given Democratic presidents to Do Good, except he was doing *his* idea of good -- and of course that infuriated the liberals. Who hadn't thought that far ahead.

But politicians never think that far ahead. They think about now, and about how they can manipulate now to aggrandize their power, and their likelihood of getting reelected. And, like Scarlett O'Hara, they brush aside worries about what might happen in the future: "I shall worry about that tomorrow." 

Good luck with that.

Except for Barbara Lee -- or rather, of course, except for Barbara Lee in this instance and with this issue. Her left-wing ideology starts her on the road to resisting calls for war -- though she, unlike her many left-liberal colleagues in the House and Senate at that time, actually went down that road to its logical conclusion.

I congratulate Barbara Lee for vision -- I wish she were able to see how other grants and grabs of governmental power likewise lead to greater and lesser tyrannies over time -- and for her courage in defying hysteria the first time. Rare to see that kind of guts in national politics.

How to Decide the Powers You Should Grant a Government....

'What I have always found most extraordinary about the Constitution is that a bunch of powerful and ambitious politicians wrote a document to restrain people just like themselves. Instead of thinking, "What powers do I want when I'm in charge?", they thought, "What powers do I want that low-down skunk of an opponent of mine to have when he is in charge?" '
   --Comment posted by "bampbs" in response to a Economist article "Worshipping the Constitution." 


One of our many vices as a political, factional people is to judge something on its momentary advantage, and not think of what one's enemy might do with such power when their turn comes. It is a fatal flaw.


Senator Fulbright complained in the midst of the Vietnam War that in voting power to President Johnson war powers based on the Gulf of Tonkin incident, he had considered only what he thought this President would do with the power being granted, instead of considering what any President might do with such power. (He complained when Nixon, a Republican, became president after Johnson, a Democrat.)


I remembered this when Reagan was elected, and Democrats went into shock when it became clear that the powers they were eager to grant the Democratic president -- basically the power to "do good," the most common excuse -- was about to be exercised, not by an enlightened, liberal Democrat with values and views consonant with their own, but by a Republican with entirely different ideas of what "the good" was. (The Republicans make the same lament when the shoe is on the other foot, of course.)


Why the Constitution Is That Way
It was precisely this paradox that drove the Founders to consider and reject various schemes for ensuring that government power would be exercised wisely and properly, by the right sort of people. In the end they concluded that you simply can't ensure this, not in the long run. In the long run, somebody whose ideas you hate will seize the reins of power and proceed to 'misuse' the power you grant so eagerly to government authority when it was your people in power. 


So the Founders came to the entirely reasonable conclusion that, since power will always be abused and liberty will always be at risk, the only sensible thing to do -- the only way to ensure the liberties of the people over the long term -- was to limit the power the government could have. 


To limit it severely, in fact, and to forbid the government from taking more power (without a Constitutional amendment, made consciously hard to create). 


They were willing to sacrifice the convenience of the ruler to secure the freedoms of the people.


Our (Overly) Optimistic Founders
Sadly, they were overly optimistic; they thought that the phrase "Congress shall make no laws" could not be loosely interpreted; that a structure plainly granting specific powers could not be misunderstood as granting specific liberties -- and just to make sure, they added the 9th and 10th Amendments, hah hah. Two centuries of relentless work by those who see governmental power as a wonderful opportunity for self aggrandizement -- whether to solve problems their way, or to enrich themselves, or to impede competition, or to punish the recalcitrant, or to 'solve' urgent moral problems -- have managed to turn their whole plan upside down. And the Founders also didn't seem to realize that, in time, the people would no longer understand why the Founders had fought so hard to limit government power.


All of the arguments as to why Constitutional limits on government power should be eased, lifted, bypassed, ignored as inconvenient to the modern world are arguments against the fundamental insight of the Founders that power will always be misused. The insight, in fact, in the opening quote of this post. In effect, modern commentators want, ultimately, to brush aside the Constitution -- not amend it, not debate it, not rework it. They insist on finding arguments that will justify ignoring the inconvenience of the Constitution's impediments to their strongly felt desire to use power to do things they think they should be done. 


It's depressing. The Constitution isn't 'modern?' It allowed slavery (back when it was incapable of stopping it)? It didn't give the vote to women (in 1780)? It didn't take into account the really, really important problems we *uniquely* have today that can only be addressed by exercise of government power and authority forbidden by the Constitution because the Founders didn't realize how things have changed?


Oh please. If there is one thing the Founders *would* recognize if thy returned to modern-day Washington, it's the very familiar grasping for power -- not just by politicians, but by every rent-seeking American.


What Would You Do?
So we are left with one remaining argument to fight back: If you believe the Constitution is obsolete, that its strictures on government power should have no force, that this is a Constitutiuon of enumerated rights and not one of enumerated powers -- answer this vital question: How would you rewrite the Constitution? How would you ensure that it does not enable future tyranny? Or do you in fact not believe in the risk of tyranical exercises of power?


Or do you think only your people will ever after hold the reins of power?