OWS and the Constitutional Right to Peaceable Assembly
The other day, I encountered an unusually poignant leftist argument, delivered in picture form. The top of the picture was a bird's-eye view of campers outside a theater, their tents haphazardly amassed in anticipation of the new Twilight film's first showing. Atop the entire scene was a single word -- LEGAL -- expressing that such an act was permissible and unchallenged by government officials.
The bottom half of the picture was virtually similar, to the point that the tents were the same shade of blue. But these campers had not gathered for Black Friday, nor for a movie, but rather had encamped themselves (mostly) peaceably for the purpose of affecting political decisions. Atop this scene was another single word -- ILLEGAL -- denoting that these protesters were threatened with removal.
Many questions quickly came to my mind, but by far the most important was whether these people indeed had a right to peaceable assembly, particularly for political purposes.
As Alexander Hamilton noted in Federalist #84, the broad wording of the Bill of Rights is easily interpreted in innumerably different ways. Nowhere does an asterisk appear within the sentence to which so many Americans cleave denoting any sort of limitation to the right to peaceable assembly, as likewise for "freedom of the press," "freedom of speech," and "free exercise of religion." The First Amendment does not say where the people may peaceably assemble, nor does it say for how long. It simply says that the people may assemble peaceably.
One does not have to spend a considerable amount of time pondering the matter to discover certain inconveniencies which, supposing the First Amendment were to be taken in its most literal sense, could easily disrupt not only civil life and commerce, but the very existence of American society altogether. Most (if not all) Americans would disapprove of any peaceable assembly taking place in nuclear submarine docks or the White House itself, and most would acknowledge that for any protester to legally obstruct street traffic would create more harm than good. And in this light, certain limitations become necessary, though they acknowledge that our Constitution is meaningful only insofar as America's judges define it -- not according to what it says, but rather by what those particular men are willing or unwilling to have it do.
It is only fair to wonder, considering the apparent subjectivity of American rights, whether a people can actually be free when unelected, nearly unaccountable officials known as Supreme Court judges determine at all times what the powers of government are. Surely, some are content with the Bill of Rights, believing that because their forefathers were free, and because their forefathers ruled according to the same piece of paper, that the same liberties must belong to the present generation as well. But one can have the form of liberty and not the substance, the sentiment without possession, like a soldier at war not yet realizing that his lover at home has left him for another man.
As stated above, it must be noted that our forefathers, though imperfect, did in fact establish and defend a functional and substantial form of liberty for quite some time. It can be seen not only theoretically in the Federalist Papers, as prophetic visions of a glorious new society, but also in the historical works of Alexis de Tocqueville, who reported to his countrymen that those visions had materialized in unprecedented democratic power -- a society not from the ruling class downward, but rather from the common citizen upward. And in both scholarly works, it was recognized that the federal government was restricted to national matters, and that the states and townships would -- out of necessity for practical living -- determine for themselves how their societies would function. And the Bill of Rights, though now believed by most Americans to have been engineered as nationally applicable, held no power in the states; it existed only to restrict the federal government from infringing upon state independence. Each state determined for itself, according to particular cultures and needs, what rights its own citizens would have.
But the practical mechanization of that liberty has been long since been disassembled, its gears stripped and worn, replaced with new parts inconsistent with the spirit by which it was engineered. And perhaps the most grievous loss experienced by the American people in that process, an introduction which essentially destroyed the practicality of American government, was effected by the 14th Amendment. This amendment, seeking to ensure the liberty of every slave by extending the rule of the Bill of Rights, instead enslaved the state and township by granting to the federal government a penetrating power which centralized control of even the minutest township actions according to an overwhelmingly subjective, impractically ambiguous code of uninterpretable laws. Before the 14th Amendment, a township, according to the enlightenment of its people, regulated what only local government could properly regulate, correlating the environment strongly with the morality of its residents. Presently, the township must act within the will of the nation for matters which concern no one other than the town's residents, save to feed distant man's nearly insatiable urge to control.
There will be countless men, undoubtedly, who prefer an impractically broad Bill of Rights to escape the tyranny of the local majority. But it would be difficult, if possible at all, to imagine a more easily escapable government than that of the township or state, and it must be recognized by all serious thinkers that the same penetrating oversight which local government is supposed to be denied by our Bill of Rights is not actually denied at all. Authority is simply transferred to men whose limited faculties render them unacquainted with the local customs, situations, and exigencies of the individual towns and states, less accountable to those towns and states, and therefore unfit to properly govern their details. And though attempting to secure liberty in consolidation and broadness, the impracticability of the Bill of Rights as shown above, and thus the need for personal interpretation, has resulted in tyrannical usurpations of local power which before the 14th Amendment would have been simply impossible, by both the culture of a Godly and independent citizenry and the proper function of their law.
The question of liberty, then, is a question not simply of whether men have a right to define municipal laws (meaning those laws peripheral to the unalienable), but also how local that definition should be. If government has the power to threaten, to endanger, to corrupt, then prudence suggests that the threatening and the danger and the corruption should be as local as possible, and power properly divided within those political units. Let men exercise their ability in self-government, not being content with subjection to vast, nearly unaccountable, and unacquainted powers, but rather learning to be wise through trial and error, exercising the faculties of democracy, and witnessing personally the visible effects of folly so they can turn from her and pursue wisdom.
It is said by a growing number of prominent media outlets that Americans are increasingly unhappy with their government, and in light of extensively empowered constitutional subjectivity, it is almost unthinkable that they could feel any other way. The most important exercises of government -- those pertaining to religion, speech, peaceable assembly, welfare, public morality, and public safety -- are no longer the people's to influence, but instead are enforced by men with whom they are not acquainted, in ways which often offend.
The issue of peaceable assembly is no different. By this one decision alone, should the issue arrive at the Supreme Court, the definition of peaceable assembly will impact every town in the entire nation. It will establish an assembly which is too long for some and too short for others, in places intolerable for some and too restrictive for others. It will further aggravate an already weary nation and strip every American town's right to self-government, tearing the scepter from the throne of democracy, the local government, and handing it to unelected national elitists.
There is a solution to this problem, and it is to reform the 14th Amendment and restore state governments to their proper liberties. And in an age when the core beliefs of Americans have never been more sharply divided, and thus the abuses of national oversight never more severe, the hour could not possibly be more advantageous.
Jeremy Egerer is a recent convert to Christian conservatism from radical liberalism and the editor of the Seattle website www.americanclarity.com.