The Right to Dissent

{1} " ….there shall be a new election of the members of the Grand Council every three years; and, on the death or resignation of any member, his place should be supplied by a new choice at the next sitting of the Assembly of the Colony he represented."
--Ben Franklin; Albany Plan of Union; 1754

There was a lot of tension in the colonies in the 1750s. There was the series of battles that are known as the French and Indian, including the Seven Year’s War. These had to do with the control of trade, and the ability to exploit the natural resources of the Native American people. As a result, the people of the colonies began to think of ways to protect their rights.

Franklin used the concept of a Grand Council, which came directly from the Haudenosaunee, or Six Nations Iroquois Confederacy. He had experience in dealing with the Iroquois, as would several of the other Founding Fathers, including Jefferson and Madison. The Iroquois Confederacy was a method for rational people to deal with the tensions that always arise in society in a rational manner that attempts to exclude violence.

After the conflicts between France and England subsided, the tensions between the colonists and the crown increased. Those tensions led to the Declaration of Independence, which remains one of the most powerful revolutionary statements in modern history. It is so powerful, that although Americans are encouraged to celebrate it every July 4th, it is rarely read in its entirety.

{2} "The Articles provided for a unicameral Congress with no separate executive or judiciary. Congress, which could act only on the states, not on individuals, was to be elected annually in a manner to be determined by each state legislature."
--The Oxford Companion to United States History; 2001; page 51

The Articles of Confederation and Perpetual Union was the first constitution of the United States. It was drafted in 1777, adopted by the 2nd Continental Congress that same year, and ratified in 1781.

Almost immediately, there were tensions associated with it. These were the serious disagreements between those who favored a stronger central government, and those who opposed that concept. There were also conflicts between states regarding the amount of representation each state would have in the federal government, because of the differences in population from state to state.

In 1786, there was a move to revise or even replace the Articles of Confederation. There continued to be significant disagreements between the federalists and the anti-federalists. The more enlightened among the Founding Fathers wanted to avoid making the new nation into a carbon copy of England, but there was also tensions brewing about the ability to tax. There were also different interests looking to control commerce, not only between states, but between the US and other nations.

The Constitution of 1787 remains the central document in American government. It strikes a balance between federal and state powers. More, it divided the federal government into three co-equal branches: the legislative, the executive, and the judicial. By its nature, the Constitution recognizes that there will be on-going tension, both between the state and federal levels, and within the three federal branches. Tension can be a good thing, when all parties agree to go by the guidelines provided by the Constitution to resolve the various problems that arise.

{3} "I believe that the great mass of the people who opposed (the Constitution), disliked it because it did not contain effectual provision against encroachment on particular rights, and those safeguards which they have long been accustomed to have interposed between them and the magistrate who exercised sovereign power: nor ought we consider them safe, while a great number of our citizens think these securities necessary."
--James Madison

Within a year of the Constitution being ratified, some of the progressive Founding Fathers began to point out that much of the promise of the Declaration of Independence was lacking from the document. They were focused on another level of tensions in society: those between the government and the individual.

In 1789, James Madison began to draft a dozen "articles" which were considered for additions to the Constitution. The first two were removed (#2 resurfaced later as the 27th Amendment), and the other ten became the Bill of Rights. They were ratified in 1791.

These rights, which are sometimes said to be tiered (with the most important being found in Amendment #1), indicate an understanding that there are times when the tensions in society can cause the government to try to restrict citizens’ rights.

In "The Imperial Presidency," historian Arthur Schlesinger Jr., documented how the executive branch of the federal government has attempted to expand its powers during times of war. The presidents from both parties have attempted to exploit international tensions to grab powers that the Constitution has deemed belong to the congress, or even the judiciary.

Likewise, it is in times of international tension when the federal government tends to attempt to deny groups and individuals of their Constitutional rights found in Amendment #1. This does not mean that these rights are not infringed upon in times of relative peace, because they certainly have been. And, in fact, other rights have been infringed upon by the federal, state, and local governments.

However, some of the most important areas of Constitutional law involve cases decided by the federal courts, which pit the government against the individual.

{4} "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 of the people peaceably to assemble, and to petition the Government for a redress of grievances." –Amendment #1

For the sake of this discussion, I want to concentrate on the last four rights found in Amendment #1: (a) free speech, (b) a free press, (c ) the right to assemble in public, (d) and the right to petition the government. As Associate Justice of the US Supreme Court Abe Fortas noted in his 1968 book "Concerning Dissent and Civil Disobedience," these are the rights that not only guarantee citizens’ right to disagree with the government, but they outline how that dissent is to proceed for the benefit of the individual and society.

Freedom of speech implies freedom of thought. More, it allows free-thinkers to submit their ideas to what Justice Oliver Wendell Holmes called "the marketplace of ideas" (Abrams v United States). Freedom of speech is also referred to as freedom of expression, and involves more than a person’s right to speak their mind with words. It also applies to other ways that creative people communicate their beliefs, including high school students wearing tee-shirts with political messages.

Freedom of the press has to do with the right to have people (groups or individuals) who gather information, report the news, and provide opinion pieces. In the days of the Founding Fathers, it involved the printing press. In time, it came to include the radio and television airwaves. Today, it has expanded to include the internet.

The right to assemble and the right to petition the government with grievances are so closely related that they are often mistakenly assumed to be one right. Public assembly can be a way to get the attention of elected officials, but it is also an important way to communicate ideas to the public at large. And petitioning the government includes everything from an anti-war rally in Washington DC, to a high school student taking up a petition, to an elderly person writing a letter to a senator, to a person sending an e-mail to the White House.

Ultimately, as Fortas pointed out, these freedoms are ways for citizens to have an impact upon the single most powerful form of protest that we have, which is the ballot box. We can use our free speech, the free press, political rallies and petitions to encourage elected leaders to be responsive to our demands, or we will work to have them replaced.

{5} "Freedom does not mean license." -- Erich Fromm; foreword to "Summerhill: A Radical Approach to Child Rearing"; page xiii.

The freedoms guaranteed by Amendment #1 are not without restriction. The best-known restriction comes from Justice Holmes noting that a person does not have the right to falsely yell, "Fire!" in a crowded theater. There are other examples of limitations of free speech that include sedition, slander, and as Scooter Libby found out, lying to police investigators or while under an oath in a court setting.

The freedoms of the press have some related limitations. The 1917 Espionage Act has been used to discourage those who would engage in "spying" to benefit another country. An example of this is found in the neocon/AIPAC espionage case, where a group of intelligence operatives attempted to use the free press as part of an effort to pass highly classified military secrets to a foreign country.

The right to hold peaceful public assemblies can be restricted by permits, and the right to petition the government with grievances is restricted by free speech zones. In one of the most important cases of the civil rights movement (Walker v Birmingham; 1967) the US Supreme Court ruled against Rev Martin Luther King, Jr., after he violated an order restricting what Martin felt was an obligation to assemble and participate in a march to express grievances.

The majority of the overt attempts by the government to restrict citizens’ rights guaranteed by Amendment #1 are found during times of international tensions. As noted, our history shows that it is during times of war that the executive branch has frequently attempted to grab power from the other branches of government. This isn’t a coincidence. It is important that informed citizens are aware that times of war have always been, and continue to be, when our nation risks losing the very things that make us a Constitutional democracy.

{6} "It is the courts – the independent judiciary – which have, time and again, rebuked the legislatures and executive authorities when, under the stress of war, emergency, or fear of Communism or revolution, they have sought to suppress the rights of dissenters. In the famous case of Exparte Milligus, the Supreme Court held that President Lincoln’s suspension of the civil courts and the writ of habeas corpus were unconstitutional.

"Although we were in a desperate war against Nazi Germany, the Supreme Court in 1943 reversed the conviction of persons who distributed literature condemning the war and the draft and opposing the flag salute. (Taylor v. Mississippi, 319 US 583)

"Time and again, the Court has rebuked and rejected efforts to deprive people of their jobs in state and federal government for their mere beliefs or mere membership in unpopular or even essentially subversive groups."
--Abe Fortas; Concerning Dissent and Civil Disobedience; pages 46-47.

The famous "shouting fire in a crowded theater" statement came from Schenck v United States, a case involving anti-war fliers during WW1. In the 1919 case of Debs v United States, political activist Eugene Debs’s conviction was upheld, not because he presented any "clear and present danger," but because his ideas had a "natural tendency" to convince others to refuse to serve in the military when placed in that marketplace of ideas. And there are numerous other examples of cases that define our Constitutional law which restrict our ability to exercise the rights guaranteed by Amendment #1.

The Bush-Cheney administration has taken the concept of an imperial presidency to new lows, and their attempts to subvert the Constitution have made this the revolutionary presidency that Schlesinger warned of. The congress has shown no evidence of the will or ability to confront the administration in any meaningful way. Instead, they focus attention on attacking a MoveOn.org ad.

The federal courts have been the source of the only limitations on the executive branch’s abuses of power. I say that with a full awareness of the imperfections of today’s federal courts, which too often represent the corporate interests of the republicans who have appointed the judges to their positions.

Henry David Thoreau wrote that we must be human beings first, and subjects afterwards. To do this, we risk having those stuffed shirts in Washington DC question our patriotism. "As I have already told you," Camus reminds us, "if at times we seemed to prefer justice to our country, this is because we simply wanted to love our country in justice, as we wanted to love her in truth and in hope."

Fromm warned that "human history began with an act of disobedience – it is likely to end with an act of obedience." It is our duty to say, "Not on our turn." We need to exercise those Amendment #1 rights that guarantee that we keep our Constitutional democracy alive, even against the aggression of the executive and the cowardice of the legislative branch.

"In a democratic society law is the form which free men give to justice. The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law." – Robert F. Kennedy