Where are all the high-school civics teachers when you need them?
During the past few weeks, we have been treated to an absolute bonanza of constitutional ineptitude: we’ve had Dr. Laura explaining her departure from radio as an effort to get her First Amendment rights back; continuation of the ugly, ginned-up controversy over Muslims building a community center three blocks from Ground Zero; and an equally retrograde proposal to eliminate portions of the 14th Amendment, among other embarrassments.
Dr. Laura (whose doctorate, we should recall, is in physiology—not logic, and certainly not law) seems to equate the disapproval of her sponsors with denial of her First Amendment rights. Someone should gently explain to her that the First Amendment, like the rest of the Bill of Rights, is a limit on government action. It prevents the government from censoring her. Unfair as it may seem to her, her sponsors also have First Amendment rights—and in this case, they have evidently decided to exercise them by disavowing her message.
That’s the problem with those darn constitutional rights—people who disagree with us have them too.
Aside from the southern Congressman who questioned whether Islam is “really a religion,” those who oppose allowing Muslims to build a community center and mosque three blocks from Ground Zero have generally conceded that the Constitution gives them the right to do so. Instead, they have fallen back on what First Amendment lawyers call the “heckler’s veto” argument. The “heckler’s veto” was most prominently used in the 1950s, during the Civil Rights movement. When Martin Luther King would ask for a permit to make a speech in a public venue, the city or town would argue that allowing the speech was likely to cause a civil disturbance and thus the permit should be denied in order to protect the public’s safety. Courts weren’t receptive to the notion that some people’s rights should be held hostage to other people’s hostility; nevertheless, opponents of the mosque argue that it is “insensitive” and “offensive” to build near the neighborhood where the Twin Towers went down (and just down the street from the Pussycat Lounge strip club).
When we come to proposals to amend the 14th Amendment, there’s good news and bad news. The good news is that some of our dimmer political actors have noticed that it exists. It wasn’t all that long ago that a Georgia governor denied that the Bill of Rights applied to the states—a rather clear signal that he hadn’t encountered this particular Amendment. On the other hand, there is something surreal about watching people who claim to revere the Constitution when their own rights are at issue blithely proposing to shred that document when other people are its beneficiaries.
It’s hard to know whether these folks are really constitutionally illiterate or simply playing cynical political games. As one pundit has wryly noted, there are two ways we can understand the meaning of the word “base” in the phrase “playing to the base.”