“Freedom of speech” does not equal “freedom to be free of the consequences”

Mozilla’s CEO Brendan Eich resigned after complaints that he was a supporter of the anti-gay marriage campaign, and now certain conservatives are in an uproar.

You see, when they boycott businesses and TV shows they believe have anti-Christian messages, they are exercising their free speech in a totally American and patriotic way.  But when others do it against issues they support, they are suppressing anti-Christian ideals and trying to silence people in the same way the Nazis did.   boycott

I mean, it’s only logical, right?

Look, this guy has every right to his opinion.  What he doesn’t have is the right to the job.

As the NY Times pointed out:

Mozilla competes in two markets. First, obviously, it wants people to use its products instead of its rivals’ stuff. But its second market is arguably more challenging — the tight labor pool of engineers, designers, and other tech workers who make software.  When you consider the importance of that market, Mr. Eich’s position on gay marriage wasn’t some outré personal stance unrelated to his job; it was a potentially hazardous bit of negative branding in the labor pool, one that was making life difficult for current employees and plausibly reducing Mozilla’s draw to prospective workers.

This company has a policy that supports gay rights, and their guy in charge is working against that policy. It hurts the business’ image with the public, and therefore he has made himself unqualified for the position.

Suppose he had supported the KKK or some other group whose main purpose it was to deny rights to others?  Do you think the company should just look the other way, knowing it would hurt their business and their reputation?

Part of the problem too is that equality for gays and lesbian is indeed a new issue, and hard to understand for some people.  Most who are against it are not necessarily evil or mean, just ignorant or unwilling to take that step yet.  They don’t see themselves as bigots.

However, this was also what it was like at the start of the civil rights movement in the 60s.  Many whites just could not conceive of equality with blacks, and some churches even preached that equality was against God’s will — therefore to allow equality meant you were doing the Devil’s work.  Doesn’t that sound like what some who are against gay marriage are saying these days?

Bigotry is objective.  Are you in favor of denying rights to people over things they do not control?  You’re a bigot.  Sorry if that makes you angry, but that’s the definition, no matter how you may justify it to yourself.

A company has the right to say “We don’t hire bigots.”

I cannot deny that there is a “slippery slope” argument to be made here, where a company can fire you simply because you have a political position they don’t like.  I hold that there is a difference when (a) you are the CEO or someone who speaks for the company and represents its image;  and (b) when your position specifically says “I will be treating some of our employees as second-class citizens and advocating discriminating against them.”    In a sense, his position on that issue directly affects his job, in the same way a nun could be fired for saying “I don’t believe in God.”

This is not the same as an employee saying “I dislike Obama.”  Or even a low level employee who has no control over the company saying “I am against gay marriage.”  I agree that firing someone for those things would be absolutely wrong.

Strict Scrutiny (part two): Constitutional Compromises

The Constitution is a series of compromises, and not a document of Wisdom Handed Down from Our Elders.

In order to get the Constitution ratified, certain concessions had to be made.  In part one, I mentioned how many parts were written purposely vague because that was the only way to get agreement on them. Let’s now look at some more clear-cut examples.constitution_quill_pen

The most obvious may be “The Virginia Compromise.” (Look, it even has “compromise” in its name.) The smaller states wanted each state to have an equal vote so that they wouldn’t be ignored. The larger states wanted it to be based on population which would obviously benefit them. In the end, we got both — a Senate where each state gets the same representation no matter how small, and a House where the states with more people get more representation.

Then there are the first ten amendments themselves (the “Bill of Rights”). Many states refused to ratify the Constitution without these protections, and it’s a good thing they demanded them.

But the clearest example of compromise in the Constitution has to do with slavery. Most of the northern states had already abolished it and wanted the entire country to do the same, but the southern states refused. The south was worried that as soon as this Constitution was passed, the northern states would outlaw slavery completely. Without some provisions to prevent this, the south refused to agree to the Constitution.

Rather than split the country within the first ten years of its existence, a series of compromises were worked out. (Sadly, postponing this only led to the bloodiest war in American history a hundred years later.)

First, there’s Article I section 9 which specifically prohibited Congress from passing any law outlawing the importing of slaves before 1808 (twenty years from the Constitution’s signing). Why 1808? Was there something magical about that year? No, that was just the number that compromise produced. (And as soon as 1808 came about, Congress did exactly what the south was worried about and banished the importation of any more slaves.)

Second, there’s the ridiculous 3/5ths clause. The south demanded that when determining how many representatives they would get in the House, that slaves should be counted as “people” even when they were property in every other respect under the law. The north rightly pointed out how stupid this was, but the south insisted and there was another compromise made. We ended up with a provision that held that 3/5ths of every slave would count. No mention as to which 3/5th of the slave counted, though, but apparently it didn’t include the head since the views of the slaves mattered not.

Third, there’s the 2nd Amendment, which allowed the southern states to keep their state “militias” which were basically armed gangs whose only job it was to intimidate slaves and capture ones who escaped. (More on this later.)

So whenever some Constitutional fundamentalist tries to argue with you that the Constitution is concise and “the will of the Founders,” just point out how many compromises there are in it, thus clearly indicating that there is no “will of the Founders.” It’s all agreements and compromises needed to get the thing passed.

Next: A clear, exact 1st Amendment which doesn’t provide for any exceptions, and then all the exceptions there are to it.

Strict Scrutiny (part one): Constitution Fundamentalists

There are religious fundamentalists out there who are convinced that they know exactly what the Bible says.  They take it absolutely literally and have no doubt in their mind what it all means, and anyone who disagrees with their interpretation is simply wrong.  And, amazingly, what the Bible says matches their own personal views perfectly!

There are Constitutional fundamentalists who have the same view — they treat the Constitution like it was written on stone tablets and handed down by the gods.  Sadly, at least one of these fundamentalists is on the Supreme Court.

The problem with this simplistic view is that it fails to take into consideration Constitutional history and common sense.  The Constitution was written by men, not gods, and they did not all agree on the meaning of the words or what should be in there.  constitution_quill_penThere is no more of a “founder’s intent” than there is a government intent on any bill.  Will people years from now claim that the entire Congress agreed unanimously on Obamacare?  Of course not.  So why do people insist on believing that for the Constitution?

The Constitution is a series of compromises, just like everything done by government.   It was written very broadly, with purposely vague words, because that was the only way it could get passed.  It’s meant to be our guidelines for how the laws will be written — our goals, if you will.  It was not meant to be taken literally to the point where there is only one interpretation.

Those who say that there is just one way to interpret it need to explain why, within a few years, there were Supreme Court decisions about it.  These were the exact same people who wrote the damn thing — why would they need to go to court to have someone explain it to them?

One of the first and most important Supreme Court decisions in those early years was Marbury v. Madison, in which the Supreme Court said that they have the right to review laws to determine whether they were Constitutional.  Makes sense, right?  Who else would do that?  But those words aren’t anywhere in the Constitution.  The founding fathers had to interpret them from the overall document.  And clearly, not everyone agreed.  And these were the people who wrote it!

After all, if everyone agreed on the meaning, there would be no need for a Supreme Court at all.

You’d think people would get that, but Constitutional fundamentalists (who, like religious fundamentalists, are always very conservative) cannot accept this.  Justice Scalia, for instance, chides his fellow Justices all the time for getting it “wrong” when they refuse to acknowledge he has super powers to read the minds of the Founding Fathers and know exactly, for instance, what their views were on internet regulations.

Part two:  Examples of compromises made by the Founders

He’s not the Messiah!

Some people just name their kids really stupid things that can haunt them for lives.

But when someone in Tennessee named their kid “Messiah,” that was too much for a judge. “The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” she said.

Good thing that judge wasn’t around in 1958 when Madonna’s parents were deciding on a name.

So the judge, over the parent’s objection, changed the child’s name, like a magical fairy.

I mean, while I certainly don’t want parents naming their kids “Hitler” or “Asshole,” I also don’t like the idea of the government coming in and deciding for the parents what the child’s name should be.

And it’s especially true here, where the reason for the name change was religion. That judge just didn’t want her personal religion made fun of, apparently.

Hey, wait, wasn’t there a Constitutional Amendment prohibiting this sort of thing? Like, the very first one?

Do the Words “Well Regulated” Mean Anything?

See, here’s the problem.

The words “gun control” make the radical gun owners’ heads explode. Despite the fact that the vast majority of gun owners agree with things like background checks and licensing and other controls to help keep guns out of the hands of criminals and the insane, the radicals see the mere thought of even the slightest bit of regulation as a violation of the Constitution greater than any other.

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And this is despite the fact that the Constitutional amendment in question is the only one that uses the words “well regulated.”

Go figure.

The First Amendment clearly says that “Congress shall make no law” concerning freedom of speech and the press and religion and so on. Yet, there are all sorts of regulations on our speech which do not violate the Constitution at all. There are restrictions on the time, place, and manner of the speech (Can’t yell “fire” in a crowded theater); there are restrictions on speech that can cause a “clear and present danger” (you can’t incite a riot and then claim as a defense that you were simply exercising your First Amendment rights); there are restrictions on obscenity, military secrets, and laws against libel and slander.

And that amendment doesn’t even carry the words “well regulated.”

So what does that mean in the 2nd amendment? Why would the founders have added those words if they were meaningless?

Some will point out that it says “well regulated militia” and therefore the law only applies to the military. Well, by that definition, only the militia can have guns.

And even so, I wouldn’t object if non-military persons had to follow the same rules as our military when it comes to guns. No one joins the army and is handed a machine gun on the first day. No, first you have to be cleared to even be in the military in the first place to make sure you’re not a felon or insane. Then there is training to go through; there are safety courses; and there are many people overseeing you at first. You know — the same kinds of restrictions many of us feel are reasonable for anyone wanting to own a gun.

I have friends who are gun owners. Not one of them would be prohibited from owning their guns with these restrictions. Yet a few of them seem to think that any restriction is equivalent to “the government taking their guns away.” No, it’s more like the government taking cars away from people who don’t know how to drive, have no license, and/or are criminals or insane.

Sounds nice and “well regulated” to me. No Constitutional problems there. (And, once more, although the radical gun owners always point out the recent Supreme Court decision that says that citizens have the right to own guns, they ignore the parts of the decision that allow for the exact kinds of regulations I’m talking about here.)

Everybody is a Tyrant!

Senator McCain today predicted broad support in Congress to require universal background checks for gun purchases.

Oh my God!  Do you realize what this means?  Not only is Obama a tyrant, but so are most of the people we elected through our democratic process!

To make matters worse, so are the vast majority of Americans, including the vast majority of NRA members!  Tyrants, all of them, out to destroy our way of life!  We must gather our guns, hide in our shelters, and get ready for the tryants to come after us and install military law!

gun

The only other possibility is that background checks in order to purchase guns is completely Constitutional, that democracy works, and that there is nothing wrong with doing everything we can to prevent criminals and the insane from getting guns.

But no — that would be crazy!

The Constitution as Our Bible

Some people view the US Constitution in the same way fundamentalists view the Bible, as if it were written on stone, never changing, and can never be questioned.constitution_quill_pen

These Constitutional Fundamentalists have something in common with their religious counterparts:  They believe there is only one interpretation of their holy book and — here’s the amazing part —  that interpretation is always exactly in line with their own personal views!

Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods.  We know that the Constitution was written by politicians, who made compromises and made sections deliberately vague because that was the only way they could get the damn thing passed.

Those who “know” the intent of the Founding Fathers need to acknowledge that the only thing we can really say is that it was the intent of a majority of them to pass the Constitution as a whole, and they did not necessarily agree on what the words meant at the time.  After all, within a few years, there were cases before the Supreme Court to determine its meaning and its application.  The Founding Fathers themselves were still around and they could not agree!  To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.

(NOTE:  This is the first real post for this blog.  There is a lot more I could say on this issue;  in fact, entire books have been written on this topic.  However, my goal with this blog is just to throw out one basic idea per post, to stir discussion, and then to follow up on this with other similar ideas in follow-up posts.  For instance, a future post will discuss whether the interpretation of the Constitution should change as society changes, so hold your comments on that issue please.)