Bad News about Your Constitutional Rights

Have you looked at the Bill of Rights lately? Maybe you should. You probably assume that, even under an extreme right-wing federal administration, you have constitutional rights. You assume that, even if fundamentalists have a big role in the new government, you still have freedom of religion. You assume that you have freedom of speech and of the press. But that is not what the Constitution actually says. In this essay, I will examine mainly the rights guaranteed by the First Amendment (in the Bill of Rights).

The First Amendment says, “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, and to petition the Government for a redress of grievances.”

Did you catch that? The First Amendment prohibits Congress (the Legislative Branch of the federal government) from making laws that limit freedom of religion, speech, the press, peaceful assembly, and petition. The First Amendment does NOT say that the Executive Branch cannot do so. Suppose that some future right-wing fundamentalist-endorsed federal government might wish to restrict non-fundamentalist churches, or to prohibit non-right-wing speech, etc. Such a government could do so by executive decree. If Donald Trump were to prohibit anyone from criticizing or ridiculing him, he could issue an executive order, and it would not be unconstitutional.

Or, individual states could establish religions and prohibit free speech. The Constitution does not prohibit them from doing so; only Congress.

Of course, Congress could then pass laws that prohibit such executive decrees. But would they? Would a Republican Congress get around to passing such legislation? Of course, lawsuits could reach the federal court system (the Judicial Branch), but this process could take years. It is almost impossible to imagine that the federal courts would allow restrictions on free speech and religion: even many Republican judges, such John Jones, the judge who ruled against a group of creationists, are neither extremists nor even activists. Furthermore, an executive decree prohibiting criticism of the Chief Executive would depart drastically from precedent, that is, from previous judicial decisions. But what is precedent? Precedent is simply a convention that the courts may choose to follow, or may not.

While it may be unlikely that even President Trump would issue decrees prohibiting freedom of speech and religion, there are other ways that the Executive Branch could accomplish these same goals. Consider, for example, my right as a scientist to teach about evolution and global warming. The new Executive Branch, supported by fundamentalists and energy corporations, could but probably would not try to stop me directly. But they could proclaim that any university or college that permits its faculty to teach about evolution and global warming will no longer receive federal funds. Such a threat would cause the immediate closure of any such college or university, if for no other reason than that students would be unable to obtain federal grants and loans to attend such a college or university.

So don’t be surprised if this happens. It is legal.

In contrast, the Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

That is, “the right to bear arms” cannot be restricted in any way, according to the way conservatives interpret this Amendment. This amendment prohibits not only Congress, but also the Executive and Judicial branches, from restricting arms. Imagine with me, if you will, a federal government that decided to allow unlimited access to all arms, whether conventional, semi-automatic, or fully automatic; and, hell, why not cannons and nuclear weapons too? This would, by the Constitution, be legal. If individual states restricted access to certain arms, the federal government could not stop them (since it has only delegated powers, all other powers being retained by the states) but it could deny them federal funding.

We could be looking at an imminent future of repressed speech, enforced religion, and thousands of crazy militias doing what they want, however unlikely this future scenario may actually be.

And if I’m wrong, would somebody please explain it to me.