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Constitutional rights - 27 March 1998

Swishing through the rain in a cab one evening last week I saw an American flag flapping, in the dark and the wet, above a museum and the little old lady by my side said, "Oh-oh, won't do, isn't there a penalty for that?"

"Right," I said, "$1,000." By Act of Congress 1942, amended 1976. So it was and so it would be, if, as with every other act of Congress, somebody had not decided that this Act violated one of his precious freedoms laid out in the 1787 Constitution of the United States.

There was such a challenge, we'll come to it, which was taken all the way to the Supreme Court, from, as always, a single incident involving a single human being. Because the Constitution, remember, is the sovereign protector of the rights of individuals, not cities or states or companies or women or children, whites, yellows, gays, vegetarians or any other group that maintains it's being put upon.

You look back on what they call the landmark decisions of the court and you find that, for instance, the institution of slavery turned on the question of whether a particular black slave was a person, as the Constitution always calls individuals, or was he a piece of personal property the Constitution couldn't touch?

The court decided that this black man and hence all others, was a person, entitled to what the Constitution calls, "the equal protection of the laws" and slavery was doomed.

A man got on a public bus and objected to the band music coming over the public address system. He took his case to court, it was rejected. So, onwards and upwards, through appeals courts and eventually to the Supreme Court and it decided, yes, his Constitutional right stated in the First Amendment, the right "peaceably to assemble", had been denied.

At one point, almost a century ago, the court gravely decided that a child, provided it was over the age of 12, had a constitutional right to work 14 hours a day and subsequently the court ruled that an employer had no right to make anybody work 14 hours a day.

Does the Constitution say that you can own stock in an insurance company if you run an undertakers? Somewhere in the limpid prose of the Constitution they found a phrase that could be interpreted to say, no, you can't. The one phrase, the one clause, of the Constitution that everybody pretends to understand is the first of the ten amendments to the original document.

The First Amendment, very simple, sounds clear enough, listen, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble."

That single sentence has brought more cases to the court for judgment, I should guess, than any other clause in the Constitution because it specifies three different rights. It's caused preposterously complicated arguments.

Let's just take the first two. First, the right not to have a state religion, hence to be free to practice your own religion or none at all. The argument never ends about what place is public and what private. Number two – abridging the freedom of speech. Apart from allowing the free exercise of the vocal chords, there is nothing like a consensus on a definition of free speech or its limits.

It was agreed long ago that speech meant opinion, whether spoken or printed, but the first big hassle over what is meant by free as distinct from restricted, came during the First World War. Shortly after the United States declared war on Germany, a man, a socialist, distributed thousands of anti-war leaflets to men drafted into the army. The socialists claimed their right to freedom of speech under the Constitution.

Congress had, however, passed an Espionage Act against obstruction of recruitment and the question was whether that Act by itself stifled the expression of speech opposed to the war. The ruling was given by Mr Oliver Wendell Holmes, the most distinguished and forbidding of American jurists.

He said it was necessary to distinguish between speech, opinion, however violently expressed, that did not incite to any form of insurrection and speech that, as he casually put it, might create a clear and present danger that will bring about the evils that Congress has a right to prevent. He had in mind desertion, mutiny, some provocation that might endanger the war effort. The court held that freedom of speech was not, in this special case in wartime, not abridged. The socialists were convicted.

Ever afterwards, the phrase "clear and present danger" has been used as a mantra or acid test of what can constitute traitorous speech or speech apt to provoke violence. But since the Second World War and the rise of at least two generations that don't learn about or study the Constitution in school or college, the First Amendment, right to free speech, has been seized upon, exploited, stretched as a sort of natural blanket right by every sort of eccentric, theorist, ideologue, pornographer, even by individuals and groups dedicated to bringing down their enemies.

But in the everyday business of First Amendment protests – and they have become everyday – we have for instance a case of the mayor of New York City who has issued an order to get scores of pornographic shops and mini theatres away from residential districts whose inhabitants, parents mainly, have protested long and loud about the sleazy atmosphere their children must grow up in, when the neighbourhood has turned into a hard-porn circus, a night camp for the homeless, a shopping mall for drug pushers.

The owners of the pornographic shops, needless to say they're a very powerful combine, have sued on the grounds that their right to freedom of speech is being violated. Now, of course, they can't sue as a body. The individual whose free speech is being denied is, surprise, surprise, a topless dancer.

It could take months to go through state and federal appeals courts and then, if ever, up to the Supreme Court, and though some of us believe we know what limits the founding fathers would have put on free speech, today there's no saying whose side the court is likely to come down on.

Meanwhile, on at least three television channels seen nationwide, the most colourful, often brilliantly photographed and hardest of hardcore porn films are shown 24 hours a day. Long ago, it appears, the Supreme Court, like the courts of Europe, gave up on striking a permissible balance between obscenity and free speech.

But how about that flag flapping in the rain on a dark night that my old lady friend complained about? Well, she was right, there is an Act of Congress that formalised a code of etiquette for display and use of the American flag that was invented practically with the invention of the republic. Violation can bring a thousand-dollar fine or a gaol sentence.

It's a very long and detailed code of instructions and prohibitions and would take me about half an hour to read rapidly. The flag may never touch the ground, must be folded a certain way, flown according to 16 different directions, then only between sunrise and sunset, must never be used as decoration on any article such as cushion, ornament, drapery, advertisement or used as a receptacle for carrying anything and on and on and on.

The armed services observe this code and all government offices are supposed to, but the rest of us no longer need to pay it any heed since the Supreme Court, in June 1990, voted by five to four that a new Act of Congress, making it a crime to burn or deface the flag, violates that good old guarantee of free speech.

That vote, or rather the vote of one justice, overturned the flag desecration laws of 49 states that had them, a victory for the flag abusers, as a few years ago the court, on First Amendment rights, approved the freedom to photograph and display a crucifix in a basin of urine. Honestly, the wisdom, the foresight of those men composing that all-seeing Constitution in the 1780s.

Here's a guileless sentence I came on in a bed book I've been reading, "The British, with their famous unwritten constitution, have always preferred tradition to legislation. We Americans, who have always been weak in tradition, have felt safer with clearly written laws."

There isn't much truth in that except for the placid phrase, "clearly written laws". They may have been clear in the 18th Century, but such flowing, lucid phrases as "the equal protection of the law", "cruel and unusual punishment" and a dozen others, have been fought over, teased and strangulated by literally scores of Supreme Court justices ever since the fateful day in 1803 when the first Chief Justice laid down, to everybody's applause and satisfaction, that it is emphatically the province and duty of the judicial department to say what the law is and that established a general agreement that the court, and the court alone, would decide the meaning of the Constitution.

Sharpen the point by a simple sentence from another chief justice this century, "The Constitution is what the judges say it is". You might add rather, what five judges out of nine say it is.

In another bed book that I read on alternate nights – it must be a divine coincidence – I came on a rejoinder. Winston Churchill, half-American remember and a great and knowledgeable admirer of many American institutions, wrote that "when an American gropes his way down the dark alley of truth, he is liable to get caught in the rat trap of the Constitution". Want a written Constitution anybody?

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