pageok
pageok
pageok
The Simpsons v. The First Amendment:

Quick, without looking or reading on, how many of the liberties protected by the First Amendment can you name?

If you can name more than one, you're among the elite in constitutional literacy in the United States.

Says the AP:

Americans apparently know more about "The Simpsons" than they do about the First Amendment.

Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.

The study by the new McCormick Tribune Freedom Museum found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.

The survey also found that more Americans could name the three "American Idol" judges than could name three rights guaranteed by the First Amendment.

These results are amusing, perhaps disappointing, but not terribly surprising. I wonder how many lawyers could name the freedoms beyond speech and religion. And the survey doesn't really tell us much about the state of practical knowledge in the country. My sense is that most Americans know they have some sort of right to speak their minds and that even people who disagree with them do, too. They also probably understand that they and their neighbors can worship God or not, more or less in their own way. Their grasp of the Establishment Clause is probably less firm, but in that they are joined by the Supreme Court. The other three freedoms listed in the First Amendment (press, assembly, and petition) are historically important and could be valuable in theory, but have played little role independent of free speech in the Supreme Court's jurisprudence.

By the way, I count six (not five) freedoms explicitly listed in the First Amendment: no establishment of religion, free exercise, free speech, press, assembly, and petition. If we added the unenumerated freedom of association we'd get to seven. The survey designers lumped the Establishment Clause and the Free Exercise Clause together as "freedom of religion," but it seems to me the clauses serve distinct (yet complementary) roles in protecting religious freedom.

There is good news in the survey for advocates of the living Constitution:

About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.

I had thought the constitutional right to own a pet was found in the Ninth Amendment, or perhaps among the transcendental liberties protected by the Due Process Clause of the Fourteenth Amendment. Is there a more suitable constitutional home for the right to own a pet?

DK:
On the bright side, most Americans should know that the 1st Amendment Does Not Cover Burping.
3.1.2006 11:56am
Dave Friedman (mail) (www):
Well, I'm not a lawyer and I named five of the six or seven rights you mention.

And I know that the Fifth Amendment protects one from self-incrimination.

So does that mean I can practice law?
3.1.2006 11:57am
carpundit (www):
I'm depressed. I could not name more than two Simpsons.

The First Amendment thing I've got down pretty well.
3.1.2006 12:03pm
IT Guy:
How many times a day is the Constitution on TV? Seems like a rather silly survey to me.
3.1.2006 12:05pm
Richard Bellamy (mail):
Clearly the Right to Own a Pet is found in the Penumbras of the Constitutional Right to Travel (in a car, with a dog wagging its tongue out that passenger side window.)

You have to get through the Constitutional Right to Drive and the Constitutional Right to Windows, but the line of authority is pretty clear otherwise.
3.1.2006 12:09pm
Dave!:
Does this mean I'm destined for an "A" in ConLaw?!

I wish it were that easy...
3.1.2006 12:09pm
Sydney Carton (www):
There is no right to own a pet. That's why cities can ban certain pets like ferrets.
3.1.2006 12:11pm
John Jenkins (mail):
I can probably do the cast of the Simpsons. Can't do American Idol though (which is evil because it pre-empts House).
3.1.2006 12:15pm
msmith (mail):
...By the way, I count six (not five) freedoms explicitly listed in the First Amendment:...

I'm still wondering which of those rights the President of the Unted States of America thinks the Kingdom of Saudi Arabia "recognizes".

Joint Statement by President Bush and Saudi Crown Prince Abdullah
Crawford, Texas
April 25, 2005

.....The Kingdom of Saudi Arabia recognizes the principle of freedom upon which the United States was founded, including the freedoms enshrined under the first amendment of the United States Constitution.....

Still, I'm told (constantly) that freedom is on the march.

And, apparently, Mr. Bush and AG Gonzales claim certain inherent constitutional authority to do this or that. Can't say as I put much faith in their grasp of constitutional law in light of the above.
3.1.2006 12:15pm
Joshua:
Silly me, I thought, judging by the title, that the Simpsons had come out as opposed to the First Amendment. "Freedom of speech?! D'oh!"

Come to think of it, I wonder how the First Amendment rights would fare in a similar public-recognition comparison with the members of the real-life celebrity Simpsons (i.e. Jessica, Ashlee and their loutish father Joe)?
3.1.2006 12:19pm
Dave Hardy (mail) (www):
Hmmm...

But freedom of religion is actually two clauses. The establishment and free exercise clauses.

And Cruikshank (never overruled) sez that assembly and petition are essentially one right -- freedom to assemble and to petition are not separate, the protection is for assembly to petition. (It's never been overruled, altho obviously the 20th century cases do treat them as separate matters, and transmute assembly into a broader right to associate).
3.1.2006 12:23pm
farmer56 (mail):
The right to own a pet (property) is most certainly in the Constitution. Opps keep getting this wrong. Five Supremes have ruled that the govt can pay me for my dog and resell it to my neighbor.

Or...Its right there, just above the right to an abortion.
3.1.2006 12:27pm
farmer56 (mail):
I've got a son that was 1'st in his class, and a daughter that was third in hers. The educational elite are to busy sliding condoms on cucumbers, than teaching the founding documents of their own country
3.1.2006 12:31pm
HankP (mail):
Hmmm. I'm not a lawyer, but my understanding was that the Constitution and Bill of Rights grant all rights to the people, and only describes which rights are granted to the government. I think the Ninth amendment makes that pretty clear.
3.1.2006 12:32pm
Houston Lawyer:
You forgot to mention the right to dance in the (almost)nude. The first amendment has been so broadly interpreted that it's no surprise that people think it covers other things.
3.1.2006 12:32pm
Al Maviva (mail):

Is there a more suitable constitutional home for the right to own a pet?


I believe it is incontrovertible that the Second Amendment secures the right to keep and arm bears...
3.1.2006 12:34pm
The Original TS (mail):
There is no right to own a pet.

Yet.
3.1.2006 12:34pm
Tylor Nyurden:
Please place the following amendments in order:

The Third Amendment
The Fifth Amendment
The First Amendment
The Fourth Amendment
The Second Amendment
...

(Taken from America: The Book.)
3.1.2006 12:35pm
anonymous22:
First Amendment law is pretty arbitrary, as Houston Lawyer points out (by the way, Dale, we all know the Establishment Clause was not intended to protect individual rights). Most things that could get people in legal trouble in the status quo are adequately punished by private sanctions (saying naughty words at inappropriate times; libelling someone, etc.) Kids are better off knowing how to put their condoms on properly.
3.1.2006 12:38pm
Johnny Appleseed (mail):
I learned this through "GRASP": The five protected rights are Grievance, Religion, Assembly, Speech, and Press.

So far, this is the only instance where this gimmick has actually been useful.
3.1.2006 12:42pm
The Original TS (mail):
As depressing as this is, at least people are only ignorant as opposed to actively misinformed.

Think of how many people get bizzare ideas about criminal procedure and legal ethics from Law &Order.
3.1.2006 12:42pm
Brett Bellmore (mail):
I'm far less concerned about private citizens not being able to name the liberties the 1st amendment (or other amendments) guarantees, than I am about Supreme court "justices" not being willing to uphold them.
3.1.2006 12:45pm
rbj:
I got six of the five 1st A. rights (free exercise/establishment) and the 6 Simpsons. Woo Hoo, let's all go for chocolate frosty milkshakes.
Pet ownership is in the Declaration of Independence (pursuit of Happiness - as long as your dog is named Happiness and has run off with your slippers).
3.1.2006 12:46pm
Judge HeavyHand (mail):
It's too bad Sydney's imperious nature isn't matched by her understanding of sarcasm...
3.1.2006 12:52pm
Taimyoboi:
"no establishment of religion, free exercise, free speech, press, assembly, and petition."

I wasn't aware that we had a right to exercise. Guess I have to find another excuse for not getting off the couch after work...
3.1.2006 12:57pm
JohnA (mail) (www):
"[J]ust one in 1,000 people... could name all five First Amendment freedoms."

This in a country where 1 in 250 people are lawyers? Incredible!
3.1.2006 1:04pm
PersonFromPorlock:
I suppose I'm in the vast minority but I read "or interfere with the free exercise thereof" as referring to establishments of religion, not religion itself. Thus, Congress can neither establish a national church nor interfere with the various state established churches that existed at the time. However, there is no guarantee of individual free exercise in the First Amendment.

You'll notice that this is exactly analogous to the 'militia' interpretation of the Second Amendment, which is why it's so much fun to try out on Liberals.
3.1.2006 1:15pm
Robert Schwartz (mail):
You forgot freedom from religion and the right to anti-religious propoganda. They are in the First Amendment too.
3.1.2006 1:24pm
Cornellian (mail):
Assuming people were similarly misinformed in 1791, I wonder what implications that has for "original understanding." Maybe the right to own a pet really is consistent with original understanding.

Anyway, everyone knows that you do, in fact, have the right to own a pet, since a pet is property and you have a 5th/14th Amendment right to property, subject to a possible due process deprivation. Of course, one might say the right to retain a pet is not the same as the right to acquire one, but why quibble when pets can be so cute?
3.1.2006 1:28pm
Mark Hagerman (mail):
Drat, I only got four of them!
3.1.2006 1:29pm
Thales (mail) (www):
This reminds me of a survey the ACLU or a university political science department did in the 1970s. The survey involved handing out copies of the Bill of Rights to random passersby and asking if they recognized the document. The survey results were quite depressing, with something like 1 in 20 having recognition (the one was a police officer, thankfully) of what the document was. Other guesses at its identity included communist propaganda.
3.1.2006 1:37pm
Kim Scarborough (mail) (www):
I hope Dave Hardy is right about the combination of assembly and petition, because that would mean I got them all.
3.1.2006 1:49pm
farmer56 (mail):
All 10 of the bill of rights STOP the government from action. Every single one. Why is this so hard for lawyers to understand?

HankP; Go back and read the 'Bill Of Rights' These are not rights granted by the constitution and the government. They are in fact bans on the government from taking certain actions. Making a person testify against themself uder oath. Banning the government from quartering troops on you property. Banning the government from forming a church. Banning the government from stopping you from publishing a newpaper. banning the government from your religion. Banning the government from interacting in those things that are not stated in the constitution,that shall be left to the states..

All of the Bill of rights, are bans on the government.

Remember. If the government gave them to you. They can take them away. Hence, not a right. Just something those elected still dangle in front of you like a carrot in front of a mule.

I choose not to be a mule.

And I still say the right to own a pet (property) is just above the the right ti abortion.

Tylor Nyurden;

The proper order is;
Drum roll?

None, each carries equal weight.
3.1.2006 2:05pm
Lawyer K:
"The educational elite are to busy sliding condoms on cucumbers..."

My God! Imagine what would happen if they got busy studying grammar!

"Think of how many people get bizzare ideas about criminal procedure and legal ethics from Law &Order."

I paid for a fancy-schmancy legal education (and have a law license) but actually learned everything I know about criminal procedure and legal ethics from Law &Order...and The Volokh Conspiracy, of course.
3.1.2006 2:11pm
B. B.:
Darn, I really thought it included my right to bear nachos (and eat them).

I would guess that as suggested above, people could probably identify Jessica "Ricky Martin's Fraternal Twin" Simpson and Ashlee "BOOOOOOOOOOOOOOOO!" Simpson more easily than the "Five Freedoms" of the First Amendment.
3.1.2006 2:12pm
farmer56 (mail):
Lawyer K:

Making fun of my grammar is easy. But. You got the law degree. Not me. So Explain Kelo, and the use of international law in overturning the Execution of convicted crimminals with crimes committed before the age of 18.

I'm betting your strong suit is grammar. Not law.
3.1.2006 2:21pm
Porkchop (mail):
Lawyer K wrote:


I paid for a fancy-schmancy legal education (and have a law license) but actually learned everything I know about criminal procedure and legal ethics from Law &Order...and The Volokh Conspiracy, of course.

I feel so old, I got my legal education from Gilberts and Nutshells. But I had to pay some pretty hefty tuition to get to use that knowledge.

Fortunately for me, no one wants to redevelop my pets. Some of the neighbors want to kill the dogs, but that's a different fight. Fortunately, beekeeping is a favored agricultural enterprise, even in the suburbs, so my little worker girls get to fly all over the neighborhood, taking nectar and pollen without just compensation to the neighbors.
3.1.2006 2:22pm
Chukuang:
Farmer does like reminding us of how accomplished his kids are. The point of this in this post is what, exactly? The study, poll, whatever it is, is just silly. Of course people know more about something that's on TV everyday and is very entertaining. What would more interesting is asking the same question of members of congress. And Farmer, given your apparent opposition to Roe v. Wade, one day you may be thanking your kids' teachers for showing them how that condom works.
3.1.2006 2:27pm
TomMH:
Farmer -- the right to a jury trial is one affirmative right found in the Bill of Rights; it says the government has to GIVE you something, rather than banning the government from doing stuff.
3.1.2006 2:32pm
Jarhead315 (mail):
"Their grasp of the Establishment Clause is probably less firm, but in that they are joined by the Supreme Court."

HAHAHAHA.
3.1.2006 2:32pm
Sailorcurt (mail) (www):
I hope Farmer will forgive me for addressing this:

Of course people know more about something that's on TV everyday and is very entertaining. What would more interesting is asking the same question of members of congress.

I agree about asking members of congress, but you make that statement as if the fact that people place more importance on entertainment than their basic and fundamental rights is perfectly acceptable. It may be expected, but it is nonetheless disturbing and unacceptable.

given your apparent opposition to Roe v. Wade, one day you may be thanking your kids' teachers for showing them how that condom works.

I shouldn't be opposed to the murder of my grandchildren??? You can't be serious.

It's MY job to teach my kids:

a)How to use a condom(if that is within the realm of my moral and religious beliefs)

b)How to live life in a manner that will prevent them from having to worry about such things as using condoms or getting abortions

and

c)How to properly accept the consequences of their actions should they fail to practice either a) or b) above without resorting to murdering their own child.

As far as I'm concerned, teachers can stay out of those areas of my child's upbringing and stick to teaching them things like, say, the bill of rights.
3.1.2006 3:08pm
Chukuang:
you make that statement as if the fact that people place more importance on entertainment than their basic and fundamental rights is perfectly acceptable. It may be expected, but it is nonetheless disturbing and unacceptable.

You may feel it to be unacceptable, but it's probably something that has been true for as long as there has been both a entertainment industry and the notion of basic rights. Thus it doesn't seem to be something that is particularly worrisome or shocking. Your liver is far more important than your car, but unless you are a doctor you probably know more about how to fix your car and how it opperates than you do about your liver. Frankly, the fact that things are generally good enough in this country that most people DON'T have to think about their basic rights all the time is great (and I've read your blog, so I realize you probably think at least one of your basic rights is under fire, but you you get my basic point). As for the other comments, obviously we disagree on abortion and birth control. It's not worth arguing here. I was mostly being snarky after reading yet another excuse for Farmer to mention how smart his kids are in spite of the liberal conspiracy to turn them into sexually depraved Marxists. And I didn't even. Mention that he doesn't seem to understand the. Concept of a. Complete sentence.
3.1.2006 3:24pm
Pendulum (mail):
Obviously there's no right to own a pet.

Owning a pet implies the failure to sell the pet, thus affecting the prices of pets, and thus being connected to interstate commerce in pets.

So, clearly, owning a pet is subject to federal prohibition under the Commerce Clause.

Do I have this right?
3.1.2006 3:35pm
Kovarsky (mail):
No, no, no, not eminent domain! Terrorism, poverty, violence towards women, hate crime, the war in iraq, the impending war in Iran, Hamas, twenty plus violent dictatorships in the southern hemisphere, global warming, blowing stuff up because of cartoons, failure in military intelligence, tsunamis, hurricanes, potential fourt amendment violations, torture, the vice president shooting someone in the face.... it, it all seems so trivial when we're talking about EMINENT DOMAIN ABUSE.

Boy, the fact that nobody knows what the constitutional law is presents some problems for those original meaning determinism type guys, doesn't it?
3.1.2006 3:50pm
Rebecca (mail) (www):
I learned this in the eighth grade as RAPPS: Freedom of Religion, Assembly, Petition, Press, and Speech. I still remember it today, even after I've learned that the religious freedom part is two-pronged.

I did wonder, though, as a 13-year-old, how one dressed one's grievances. :)
3.1.2006 3:52pm
anonymous22:
Pet ownership is protected by First Amendment associatonal freedoms-- the right to associate with your pet. I might further point out that there is a long history of private pet ownership in the United States, and that master/pet relationships are often quite intimate and "fundamental"-- and who is to say master/pet relationships mean less than intimate human relationships? You chuckle now, but the idea that the First Amendment incorporated such a vague concept as "freedom to associate" would have been laughed off 70 years ago.
3.1.2006 3:55pm
Kovarsky (mail):
All joking aside, I'm not sure how depressing this stat really is. Isn't the important data whether people know that there is an enumerated right protecting something, not which number that enumerated right is?
3.1.2006 4:00pm
Anon Y. Mous:
The right to own a pet is located in the Tenth amendment to the U.S. Constitution.
3.1.2006 4:13pm
Pete Freans (mail):
I've considered giving out smoking monkeys and business card sponges to clients in the past, but now the above AP story confirms my suspicions. If only I can do the disappearing tie trick in court...
3.1.2006 4:22pm
Scott Scheule (mail) (www):
This is why people shouldn't be allowed to vote.
3.1.2006 4:23pm
farmer56 (mail):
Wow!

Thanks for all the replies.

I will start with the first and work down.

Porkchop: Beekeeping is favored why and by whom? The govt if it is favored today maybe not tomorrow. As for the pet thing. Do I get my property or not? You got beehives. So if your local govt decided that they could sell your bees to someone else. That would 'manage' them better. Give you your investment cost, less depreciation, and time spent. Then. Sell it to a real beekeeper that made more income, thus more taxes. What SCOTUS decision would you turn to? They can take your house. Bees are easy. Or. On your property line a giant multi-national chemical company has bought up all the ground around you, and they make organophosphate insecticides? I guess its just life. You don't have a right to be free on your own property.

Chukuang;

I will be less obtuse. My children, while smart, and can learn the most complex issues, have not a clue about the Constitution. Why? Because the educational establishment would dissolve in one generation if people would understand our founding concepts. The people with doctorates in education are scared to death that we figure out what they are up to. Roe v Wade. Give me a break! Find that part of law that SCOTUS used. Or, just a thought. Find at least one elected congressperson to simply write a law that says 'any woman shall not be denied an abortion'. See? Simple!

TomMH

No. There is a ban on the government from denying you a jury trial. Read it. Who conducts a Trial? Hummmm? The govt? Ah, well. The govt is denied the ability to stop a trial. See? Denies the Government from stopping the trial of ones peers. NEXT!

Sailorcurt

Being thoughtful and logical gets you nowhere here.
How asinine to think that you would be even capable of directing 'your' children's activities! I am glad I am not you. The NSA is going to be swooping down on you very soon. Dissention like this will not be tolerated.

Chukuang
I use my kids as an illustration. They do have good heads. But. Not because of the school system. Inspite of the school system. And, yes, the schools are trying to turn kids into sex crazed Marxist. If you don't believe that, you have not spent any time around a high school lately. Or, you teach in one.

Pendulum;
Yes. You have this right. The failure to sell something relieves you the opportunity of owning it.

Kovarsky

One at a time.

Terrorism. Well we can't fight that. No spook work. No monitoring of foreign intercepts of communications. No profiling of people that killed 3,000 of our own on our own soils. Dictatorships, Ah? Saddam? Ring a bell? Can't go into Iraq. How does the US take care of the other 20? Global warming? How many ice ages happened before the evil human walked the earth? Failure of military Intelligence? Get a grip. Talk to the 9-11 commissioner by the name of Gerelic about her official response that the FBI could not communicate with the CIA. And the huge reductions of spooks on the ground under Clinton. This is getting boring. Make a point.
3.1.2006 4:35pm
Martin Grant (mail):
This is why we have a repulic instead of a democracy.
3.1.2006 4:40pm
Kovarsky (mail):
Everybody has it all wrong.

YOU can't own a pet, but pet-owning is within the President's inherent Article II authority as commander in chief. Moreover, congress authorized the president to own pets as a lawful incident to that authority when it passed the AUMF in the wake of Sept. 11.

And even if you didn't think the AUMF authorized executive pet ownership, your interpretation doesn't matter, because the executive has the exclusive right to determine whether congress intenteded to grant him that right in making its resolution.

Although the President obtains pet-ownership rights pursuant to the AUMF, by means of that resolution he also acquired the right - no, the duty - to torture his new pets to secure America's safety.

But don't worry, the executive will not abuse its inherent pet ownership power to serve the ends of evil, because president Bush will not allow "egregious abuses of medical research," including "creating human-animal hybrids." So, in the unlikely event that such a pet should be the subject of a secret cloning chimera experiment, the executive retains exclusive inherent authority to have the Vice President shoot the Centaur in the face.
3.1.2006 4:44pm
Kovarsky (mail):
Farmer56,

Actually I was making a joke, so your "make a point" remark is a bit out of place. And to the extent that my joke could be construed as both a joke and a "point," it most certainly was not the "point" to which you seem to have responsed in your post. From the tone of your posts, I suspect you are not particularly interested in what a point "is" so much as whether or not the identity of the person making it likes donkeys or elephants, so I'll resist the temptation to engage you on your string of irrelevant, incoherent remarks.
3.1.2006 4:54pm
Kovarsky (mail):
"responded."
3.1.2006 4:55pm
Kovarsky (mail):
Can I just rewrite that post?

Farmer56,

Actually I was making a joke, so your "make a point" remark is a bit out of place. And to the extent that my joke could be construed as both a joke and a "point," it most certainly was not the "point" to which you seem to have responsed in your post. From your tone, I suspect you are not as interested in what a point "is" so much as you are interested in whether the person making it likes donkeys or elephants, so I'll resist the temptation to engage you on your string of irrelevant, incoherent remarks.
3.1.2006 5:03pm
Kovarsky (mail):
"responded."

o never mind.
3.1.2006 5:03pm
farmer56 (mail):
Kovarsky

Terrorism; What to do? cant invade. cant use spooks on the ground cant intercept foreign communication. You figure it out.

The weather/climate; How many ice ages and why? Explain.

A very few people understand the Constitution. Why? Because, I've done this once, The Government has no desire, and, yes a fear, that in a single generation the people would revolt against the educators.

Go ahead and tell me about my grammar and punctuation. It is way easier than addressing the issue of this post. Which I am still waiting for your analysis.
3.1.2006 5:12pm
Kovarsky (mail):
farmer56,

I never said anything about your grammar or punctuation. I think you have me confused with somebody else. I corrected my own mistakes. I would never comment about someone's grammar or usage unless they invite it by commenting on mine or deriding someone else's first.

That being said, I'm not being goaded into silly argument about what the frequency of ice ages has to do with modern global warming trends. Suffice it to say that the two are not statistically related phenomena. If that's not good enough for you, well, I suggest joining the administration's science team.

Furthermore, I have no idea what this means:

A very few people understand the Constitution. Why? Because, I've done this once, The Government has no desire, and, yes a fear, that in a single generation the people would revolt against the educators.

I've skimmed my last several posts in order to try to understand what you're saying here, but it's just lost on me.

Please forgive me.
3.1.2006 5:21pm
Xrayspec (mail):
I imagine if a cartoon show about the constitution had aired every Sunday night for 13 years, Americans would be better informed.
3.1.2006 5:42pm
farmer56 (mail):
Plain language. Again, the educators have no desire to inform the kids, the next generation, about the Constitution. Because the educators are in league with the lawyers, and are fast achieving the goal of controlling our culture.
3.1.2006 5:54pm
Kovarsky (mail):
William Jennings Bryan, nee Farmer56,

Um, let me get this straight - the lawyers and educators are in league to keep the common man uniformed about the constitution because they're scared of a revolt? Exactly whom are the evil teachers battling against in their wicked crusade to keep the "knowledge" from the children?

I know the solution! We should let all the not-teachers do the teaching, because the not-teachers will convey information without trying to suppress the pending generational revolt. But wait, when not-teachers start conveying information, they become teachers, and are therefore by definition part of the vast left-wing conspiracy to keep AK 47's away from 8 year olds!

Ok, well don't let me keep you from your meeting with Gozer the Gozerian.
3.1.2006 6:09pm
Frank Drackmann (mail):
What about the right to keep and arm bears..
3.1.2006 6:12pm
Chukuang:
Gozer the Gozerian, that's good stuff.

I think Farmer might be a Scientologist who's slightly off the res.
3.1.2006 6:49pm
Guest2 (mail):
I'm probably going to regret doing this, but. . . .

TomMH wrote at 2:32: "Farmer -- the right to a jury trial is one affirmative right found in the Bill of Rights; it says the government has to GIVE you something, rather than banning the government from doing stuff."

Then Farmer56 wrote at 4:35: "No. There is a ban on the government from denying you a jury trial. Read it. Who conducts a Trial? Hummmm? The govt? Ah, well. The govt is denied the ability to stop a trial. See? Denies the Government from stopping the trial of ones peers. NEXT!"

Confused by this, I went back and read the Sixth Amendment. It says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." This certainly sounds to me like a requirement that the government provide us with something (a speedy and public trial). Farmer seems to be trying to keep his original point alive by saying that what this actually means is that the government is prohibited from not providing a speedy and public trial.

But, Farmer, you could say that about any right. Your right to a 15-minute coffee break is actually a restriction on your employer, requiring him not to penalize you for taking the break. Your right to self-defense is actually a restriction on judges, requiring them not to punish you when you shoot an attacker in self-defense. And so on.
3.1.2006 7:06pm
Apu (mail) (www):
DOH!
3.1.2006 7:36pm
Kovarsky (mail):
The positive/negative rights distinction is nice when you're painting in broad libertarian rhetorical strokes, but is fairly useless in practice. This is a fairly mundane exercise:

Amendment 1: the free exercise clause; but wait, this requires public schools to afford access to religious groups if they seek to use facilities open to secular projects

Amendment 2: the right to bear arms (for the purposes of preserving a militia) is free from government interference; but wait, some have used it to require the government to furnish gun licenses.

Amendment 3: ok, ok, I'm not a 3d amendment scholar. I admit it.

Amendment 4: right to be free from unreasonable searches and seizures; but wait, the government must get a warrant

Amendment 5: there's two much here to name, but the just compensation clause is an affirmative right on its face

Amendment 6: uh, if you think this is a "negative right," read the amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

amendment 7: same reasoning as 6: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

amendment 8: no cruel and unusual punishments; but wait, penry claims require certain types of jury interrogatoris be delivered

SO PLEASE, spare us the the theory that the Bill of Rights is a list of restrictions rather than entitlements. Furthermore, please refrain from rebutting the argument that the positive/negative distinction is pointless by saying that "the positive right to an apple is the same as the negative right to be free from government interference with the acquisition of apples." that tack hurts, not helps, your point. it reveals the distinction to be one without significance.
3.1.2006 7:44pm
arbitraryaardvark (mail) (www):

38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found

The 38% were right. The right to speak includes the right to remain silent. Wooley v Maynard, Talley v California, McIntyre, Watchtower. When Lillian Hellman was being questioned by HUAC, she said, I decline to answer under the First Amendment.
Bart Lisa Maggie Homer Marge Grandpa Snowball Santa's Little Helper.
The issue of whether assembly and petition are one right or two is a tricky one with no indisputable answer.
Personally, I am more concerned with people not knowing that they have rights to speech and press and assembly under their state constitutional bills of rights.
- arbitrary aardvark
3.1.2006 8:13pm
Thomas Roland (mail):
Al Maviva: "I believe it is incontrovertible that the Second Amendment secures the right to keep and arm bears..."

Damn, you're silly!! Cut it out. You're dyslexic on the second. It supports at least partial nudity: The right to bare arms.
3.2.2006 12:48am
Kovarsky (mail):
It is impossible to capture into words the cognitive dissonance going on while I try to read second amendment posts while watching Cialis commercials and Neil Cavuto.

I'm not sure how to spell Cavuto's name, by I earnestly hope I just got it wrong.
3.2.2006 1:32am
Kovarsky (mail):
It is impossible to capture in words the cognitive dissonance going on while I try to read second amendment posts while watching Cialis commercials and Neil Cavuto.

I'm not sure how to spell Cavuto's name, by I earnestly hope I just got it wrong.
3.2.2006 1:32am
John Stossel (mail) (www):
Cavuto putting his 1st amendment right to be an idiot to good work:

All-Out Civil War in Iraq: Could It Be a Good Thing? and
"Civil War" in Iraq: Made up by the media?
3.2.2006 1:39am
Kovarsky (mail):
John,

I know - it's so stupid it practically chases its own tail. Not only is it stupid, but it's worse than those headlines convey. I saw several reporters/journalists on fox today tacitly advocate the position that not only was the media fabricating civil war, but that it was fomenting it.

I continue to be flabbergasted at how fervently our country can defend the right and duty to print cartoons in defense of free speech while it simultaneously denounces debate over warfare as seditious.

I'm now watching fox just to see how long they can go without mentioning the Katrina bombshell. It's been 2 hours. On the bright side, Norman Mailer was on Hannity and Colmes.
3.2.2006 3:00am
Prof. Giraffenstein (mail):
I believe the right to own a pet is found in the Doo Doo Process Clause.
3.2.2006 7:31am
Aultimer:
Prof. Giraffenstien is right, there's a clear petnumbra of "life, liberty and property" in the doo-doo process claws that the people (unless PETA members) have property, which includes pets.
3.2.2006 9:12am
farmer56 (mail):
Kovarsky

You are a lawyer. It is obvious by your parsing. The Bill of rights restricts what the govt can do. debate if you must. But you will never win.

Rights given by the govt can be removed by the government.
Repeat...If the government GIVES YOU THE RIGHT. The government can take it. It is a Simple concept to grasp. if you spend 10 seconds thinking about it.

The 'right to a trial? Who does the trial? If the trial By the govt, and, the govt does not want to hold a trial. Whats to stop the govt from denying a trail? Well. The Constitution. It stops the govt, ie, the people that run the courts, from not having a trial.

Jeesh, and you went to law school.

The Bill Of Rights in the briellence of its written word ALWAYS restricts the action of the government
3.2.2006 9:16am
farmer56 (mail):
Just a short example on being faulted for my restrictions on the govt v the rights of the people.

We will change fields of study.

A 'forced air furnace' Most all understand the term. Just,,,It is not forced air. Talk to any engineer worth their salt, and you will learn, that although you feel warm air moving out of the heat duct. What you really have, is a vacuum. created by the heat source and the result you feel is the the escape of the air created by the vacuum.
3.2.2006 9:33am
BT (mail):
Ahhhhhhhh, it's nice to see the classic "forced-air furnace" rope-a-dope has been revived. Classy.


I have a feeling Ginsberg wouldn't fall asleep if Farmer56 were talking.
3.2.2006 9:41am
Guest2 (mail):
I'm sorry, I just can't resist. . . .

Farmer56 writes: "The 'right to a trial? Who does the trial? If the trial By the govt, and, the govt does not want to hold a trial. Whats to stop the govt from denying a trail? Well. The Constitution. It stops the govt, ie, the people that run the courts, from not having a trial."

Farmer, how are these two concepts different:

1. The Constitution stops the government from not giving you a trial.

2. The Constitution requires the government to give you a trial.
3.2.2006 10:51am
Guest #42:
Three cheers for Al Maviva.
3.2.2006 10:51am
farmer56 (mail):
Get It Straight people. If the government gives it to you...The government can take it away. Spend a year or so to think about it. A few hours ain't working for you.

BT; Plug up your cold air registers and drop me a note when you thaw out!
3.2.2006 1:14pm
farmer56 (mail):
BT; How 'bout this. Those very tall radio towers you see? How come they got all those cables anchoring them to the ground?
3.2.2006 1:19pm
farmer56 (mail):
Guest 42;

I shoot my neighbors dog I said I did it. Can the mayor fine me if I want a trial? If not why not? (because the 'government cannot deny me a trial) See?
Cops grab you with a bag of loot at a tellers window at a bank you just robbed? Get a trial? Hey your caught! But, somehow the government cannot deny you a trial! Wow! The constitution denies the government from not granting you a day in court! HEE! Restrictions on the government! Wow.
If we are not restricting the govenment? Who are we protecting ourselves from? Talk to you in a year or so.
3.2.2006 1:40pm
Guest2 (mail):
Farmer56 -- I think you're confusing me with Guest #42.

You wrote, "If the government gives it to you...The government can take it away."

According to our founding documents, sovereignty rests ultimately with the people. The people set up state governments and the federal government to provide them with certain services. Among those services is the court system, where we can have our disputes resolved.

Whether the Constitution says that the government has to give us a trial, or that the government cannot fail to give us a trial, it still means that we're entitled to a certain service from the government (a trial). Either way you phrase it, it has no effect on the ultimate source of our rights -- the rights originate with the people, and we've simply agreed that one of the things our government will do is give us a trial under certain circumstances.
3.2.2006 2:15pm
PersonFromPorlock:
Incidentally, re pets and the First Amendment: if I want to 'peaceably assemble' with a dog or cat, why can't I? The animals don't have the right, but surely part of my exercise of it is determining who I 'assemble' with.
3.2.2006 3:14pm
BTBTBTBT (mail):
Because the wacko liberal marxists ate all the contractor's fruit by the foot?
3.2.2006 3:16pm
farmer56 (mail):
Christ! Why is this so hard???? It is the Bill Of Rights. To protect the people. Protect the people from who? To protect the people from the Government.
3.2.2006 3:27pm
Guest2 (mail):
Farmer -- What I don't understand is why it makes a difference whether the Sixth Amendment means that the government has to give us a trial, or it means that the government cannot fail to give us a trial. To me, it doesn't seem to make a difference. But your comments above indicate that you think there is a difference and that it's very important. I'm trying to understand why.
3.2.2006 3:34pm
farmer56 (mail):
Guest2
sorry if I confussed you with another poster. But, the constitution does not establish the court system. If I am wrong, you are going to have to quote that part of the constitution that mandates setting up the court system. The constitution sets up the the Supreme Court. Then, it leaves the elected to set up other courts. If Needed.

Sovereignty is protected from the people by the constitition. OR. we would be a democracy. not, a representitivive republic founded under the constitution.
3.2.2006 3:40pm
farmer56 (mail):
I will try again. The bill of rights assures us of eneumerated rights, they are protected. Protected from who? right to open a newspaper? I'm protected against Japan shuting me down? Right to start a church? Big bad govt of the USA is going to stop Iraq from shutting me down? Right to own a gun? I guess The EU is going to stop that. Cant get a trial? I bet the United Nations will be right there for me. Get a good flogging for my confession? South Africa is at my side. General Nimrod wants to put 10,000 troops at my farm? I bet Switzerland is there to take up my case.

Get my gist?

The Bill of rights it to protect me...From ...My...Government
3.2.2006 4:38pm
Kovarsky (mail):
farmer56 will be teaching "a dukes of hazzard theory of constitutional interpretation" in my hometown this fall.
3.2.2006 7:21pm
Guest2 (mail):
This I don't have a problem with (assuming that "Government" here refers to the federal government):

"The Bill of rights it to protect me...From ...My...Government"

But this I can't figure out:

"Sovereignty is protected from the people by the constitition."
3.2.2006 7:51pm
farmer56 (mail):
And back to the point. Why people dont know the constitution? Because no one teaches the constitution. It appears from self proclaimed persons with a law degree, not even law schools teach it. But I guess when some go to that 'dukes of hazard' seminar, anything you would learn would be better than blissfull ignorance.

We are a sovereign people because we are a represenitive republic. Pure democracy is anarchy. sorry for the short hand version of my thoughts.
3.3.2006 9:15am