Private Mythology

Feel your brain turning into mush? That's what happens when you expose yourself repeatedly to mythology that is nearly 100% fact-free.

Now we're going to leave the mythology transmitted to the average American (too burnt out from a day of work to go into an intense scrutiny of mythology, an American who spent his formative years in a public school system which did not encourage the scrutiny of mythology, but rather its absorption [on posters and what-not]).

We'll explore a different mythology, that transmitted to a "different class" of people; specifically, attorneys, judges, politicians, and law school professors, a class of people who, unlike the average American, a) have access to the information regarding everyday government operation, and b) exposure to the concepts that allow them to understand this information and its significance, and c) have the time and money to acquire this information, and d) work with this information, and who are (presumably) less likely to be deluded by opinions masquerading as facts.

The key word here is "presumably". Like the public mythology, this private restating of the Constitution and the First Amendment is also false, but at least it represents "the way things are" - in large part because the myth is seen as "the way it is".

We can find this mythology stated by legal commentators. For example, in her massive six-pound, 1060 pages long book titled Guide to the U.S. Supreme Court (2d edition), Elder Witt gives us her version of the private mythology, a mythology far more subtle, but no less inaccurate:

Although the First Amendment is stated absolutely - "Congress shall make no law . . . " - few contend that the amendment is an absolute ban on governmental restriction of the amendment's guarantees. [1]
Since the First Amendment refers to "Congress", it's surprising why anyone would contend that the Amendment refers to a ban on "governmental" (as opposed to "Congressional") regulation of speech. Still, the purveyors of the public mythology would make that contention. The purveyors of the private mythology are here to tell them they're wrong, though not about their extension of a restriction on Federal law to all law, as we'll see. They're headed down a different path.

These observations aside, note that Witt does not quantify "few" (which could mean a thousand or a million or ten million, or fewer or greater), and she cites no studies that would back up her claim regarding minority contention. But if the First Amendment is "stated absolutely", of what relevance is it that "few" or "many" would contend otherwise? Furthermore, even if were true that "few contend . . . the amendment is . . . absolute", this doesn't mean that this contention is legitimate. Rather, it could mean that "few" have read the First Amendment, or that "few" are interested in limiting Congressional power to regulate the speech or press, or that "few" have been able to resist a life-long bath in public and private mythology. Of course, we're supposed to think that if "few contend" we should obey Federal Law, it's okay to disobey it. However, Article V of the Constitution, wisely, does not allow for re-write, repeal, or violation of Federal Constitutional Law by what "few contend".

Finally, note the doublethink built on illusion. The illusion: that the amendment has a "guarantee". The doublethink: if "few contend" that the First Amendment means what it says, then there is obviously no "guarantee" that it will be observed!

The Supreme Court's job has been to balance the scales so that personal rights are restricted only so much as needed to preserve an organized and orderly society. [2]
Out there in the world is an image of a blindfold woman holding scales in her outstretched hand, presumably scales of "justice". The accuracy of this image is already in question, since the vast majority of judges and lawmakers are male. And what this image actually means is anyone's guess. It could mean that judges "weigh conflicting testimony", or that they "weigh laws against natural rights", or that they "weigh laws against the Constitution" (even though Constitutional provisions may violate natural rights) or that they "weigh the facts of the case against a plea-bargaining arrangment by the parties' respective counsel", or some other interpretation no one has thought of yet. Who can say? Perhaps it would be wise to incorporate this ambiguous image into the Constitution as text, but to date that has not been done. To date, the only laws we have on the books are textual, not pictorial, and so this image, compelling as it may be to some people, has no legal effect.

That leaves us with the words of the Constitution (that's one of the nice things about a Constitution). There we find that the Supreme Court's job description, such as it is, is contained in Article III, and you'll find no language there about balancing "scales" or preserving an "organized and orderly society" with reference to "personal rights". Here is their job description:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, [and Treaties, etc.] . . . in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact . . . under such Regulations as the Congress shall make. [3]

Here we have the jurisdiction of the judicial power, to be circumscribed by Congressional legislation. [4] No Congressional law to date has authorized the Supreme Court to "balance scales" and "preserve an organized and orderly society". You won't find those words in the Constitution, nor in 28 U.S.C. §1 et. seq., wherein lie the rules created by Congress that regulate the Supreme Court.
Unfortunately, we still don't know what is the nature of the judicial power.
To grant injunctions? To rule on political questions?
The Constitution lacks specificity on this point.
However, we can discover what the judicial power is
by starting with an analysis of what it is not, as follows:

The judicial power is not a legislative power (the power to make law), and not an executive power (the power to enforce the law). Those powers were already allocated in Articles I and II of the Constitution. So what's left? The key words we have to go on in Article III are "cases", "law", and "fact", and since the judicial power follows the other two, we must see the judicial power as the power to determine if the facts of the case warrant the application of an existing law on the books. Judges are to apply the "law" (made by the legislature) to the "facts" (as reported by the executive) of the "case" (as presented to the judge in a courtroom), and make a determination of guilt or innocence.
This concept is called the "separation of powers".

As an example, the legislature makes a law that the speed limit is "65 mph", and that violators of this law will pay a "$100" fine. One fine day on the highway, you decide to do 80 mph. The executive (the cop) enforces the law by training his radar gun on you, and gets an 80 mph readout - you broke the law! The cop gives you a ticket, and you are summoned to appear in court, where the judge applies the law (65 mph is the speed limit) to the fact as stated in the readout (you did 80 mph), and says "you broke the law. Your fine, per the law, is $100".
That's the judicial power: not to arrest you, and not to say that the speed limit "is really" 85, or "should be" 85, or that the fine "is" $200 or "should be" $200. If the law is constitutional (it is), and if you have violated that law (you have), the judge must find you guilty of violating the law: that is, under the Constitution, the law that regulates the judge's behavior.

Assuming that the law applies to the facts, here are only two possible "outs" for the accused under our system: to challenge the veracity of the facts, or the constitutionality of the law. If for, example, you can prove in court that the radar gun is broken (or that the officer failed to properly calibrate the gun as required), you have damaged the State's "case", and the judge must release you. Or, if you can show that the law is unconstitutional - that the Constitution has removed the power of the legislature to make a law concerning speed-limits - then the judge must also release you, since there is no law on the books under which you could be found guilty, the legislature not being empowered by the Constitution to legislate on that issue. You will note that judicial re-scripting of the law is not one of these "outs".

Under the Constitution, the Supreme Court is given no power to add to or subtract from their job description when it feels a little societal disorganization and disorderliness coming on. Society's order or disorder is irrelevant to the Supreme Court's role under Article III, since under another section of the Constitution, Article VI, we find that the judges of the Supreme Court take an oath of office to "support this Constitution", with no exceptions for "reasonable" oath violations. Thus, judges have no power to recognize "laws" which infringe personal rights in an unconstitutional manner (even though the society becomes disorganized and disorderly as a consequence of their decision); nor do they have the power to ignore laws which infringe personal rights in a constitutional manner (even though the society becomes disorganized and disorderly as a consequence of their decision). Judges have to obey the law like all other government officials and all other citizens, regardless of the consequences, until Article VI of the Constitution is re-written to allow otherwise.

[T]here are forms of speech that merit
no First Amendment protection whatsoever . . . [5]

Not even an electron microscope could find the language in the First Amendment which excludes certain forms of speech from its "protection". At this point, one may ask, "Ms. Witt, just what forms of speech are you referring to, and where in the First Amendment will we find mention of them?"

The Supreme Court's task has been to answer two questions raised by this guarantee: What is protected speech and when may such speech be curbed? [6]
There must be a typo in the first six words of this sentence: the word "not" was omitted from between "has" and "been". Otherwise, the First Amendment is a "has-been"! The Supreme Court's task is to obey the law, just like everybody else. Alternatively, here are two questions it is Witt's task to answer:
If speech is "protected", how can it be "curbed", and if it can be "curbed", what happened to the "guarantee"?

You'll note at this point an interesting difference between the public and private mythologies. While the public mythology seeks to expand the First Amendment protection beyond the language on the paper, the private mythology seeks to diminish the protection on the paper. This can be referred to as the "Used-Car Salesman" theory of government: you buy into the system on the promise of constitutional theory, and are nailed by the system on the fact of everyday government operation.

The Court . . . recognizes the right of government to curb pure speech that threatens the national security or public safety. [7]
If by "government" Witt means "Congress", there remains this question:
How can the Court "recognize" what is false?

Certain forms of pure speech . . . fall outside the protection of the First Amendment because they are not essential to communication of ideas and have little social value. [8]
Oh, yes, the "unessential" and "little social value" exceptions contained in the First Amendment. How could I have missed them?

Students of the Constitution - real students, those who have actually read it - will probably be a little perplexed at this point. Just where is the Supreme Court getting all this power Witt (and many others) think it has? Not from the Constitution. The power of the Court may be real in fact, but not in law. That the Supreme Court has this power in law is another myth, the Master Myth from which the private mythology flows.

The Myth of Supreme Court Omnipotence 

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1 Guide to the U.S. Supreme Court, Elder Witt (Congressional Quarterly: Washington, D.C.), p. 389.
2 Guide, p. 389.
3 Article III, Section II.
4 Perhaps Witt drew her conclusion regarding scales after noting the word "equity" after all, "equity" does mean fair. However, the Supreme Court has never drawn this conclusion, nor has Congress, which regulates the Supreme Court, and there's no reason why either body should have. This word refers to the source of cases that fall under the Court's jurisdiction, not the manner of that jurisdiction. The Constitution was written in 1787. Back then (according to The Constitution and What it Means Today, pp. 218-9), private actions were filed in regular courts, and applications for injunctions were "passed upon by the Lord Chancellor, as a matter of grace, and so were considered a suit 'in equity.' . . . By the Act of June 19, 1934, however, the Supreme Court was empowered to merge the two procedures "so as to secure on form of civil action . . .' for both." (p. 219). Fed Rule of Civil Procedure 2 states that "[t]here shall be one form of action to be known as 'civil action.'" Today there is no case in "Equity" "arising under this Constitution" or "the Laws of the United States."
5 Guide, p. 393.
6 Guide, p. 393.
7 Guide, p. 393.
8 Guide, p. 393.