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> Free speech isn't important because it's in the Constitution, it's in the Constitution because it's important. Actually it's in the Constitution because it's

> Free speech isn't important because it's in the Constitution, it's in the Constitution because it's important. Actually it's in the Constitution because it's important for a different reason than most people think. If you read the Bill of Rights carefully (and I mean thinking about the reasons behind them and their implications and interpretations over time, beyond what you see in school) you gradually come to realize that they were not meant to be declarations of your rights at all. (This is very much in contrast to the UN's Universal Declaration of Human Rights, which is such a thing.) Rather, they have been very much intended to be protections against the government, i.e. limitations on what the government can do. This is not obvious, and it has nontrivial implications. The 5th amendment is the clearest example of this, but this theme goes across all the amendments. The "right against self-incrimination" is not actually declaring a fundamental right. Ever think about why there would there be such a right? It's surely not the kind of thing I'd think of when writing a Constitution, and the same is probably true for you. Furthermore, if it's a right, then why does it go away once you are given immunity? And why doesn't it exist for other people (even those in your own family)? The reason that right exists is that they wanted to protect against torture, which was used to extract forced confessions, and they decided to grant this right to reach that goal. Otherwise, they did not by any means believe that it would be somehow wrong for a judge to compel you to produce testimony. That's why the right is so limited: it doesn't apply to testifying against other people, nor does it apply to yourself once you have immunity. Yet most people don't realize this and think it's there because it's somehow deemed to be a human right. The same goes for the freedoms of speech, press, association, and the right to bear arms, etc... those are, again, meant to protect against common practices of oppressive governments. They are not declarations of intrinsic human rights. It's probably a somewhat radical departure from what you've learned, but I think it's worth realizing this. In particular, it implies even more strongly that the right to free speech was NOT imagined to be something that anyone but the government should worry about.

wahern 9y ago
The right against self-incrimination enshrines a personal right that developed under English Common Law in response to Star Chamber inquisitions. It's not about oppressive governments, per se, but rather a belief that it's immoral to put someone under oath (to God) and pit himself against himself--tell the truth and face death, or lie and face eternal damnation. It's about as close to a human right as you could find in that age. Every lawyer at the constitutional convention would have been well aware of it, as at that time there weren't too many such unequivocal rights. See, e.g., http://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf http://apps.americanbar.org/abastore/products/books/abstract... The 4th, 5th, 6th, 7th, and 8th Amendments were basically lifted directly from established English legislative and common law. That Americans were regularly denied the benefit of these laws was one of the primary grievances of the colonies, so they basically just copy+pasted them into the Bill of Rights. As for the 1st amendment, I'm sure you've noticed that it's worded in the negative, and that's because the Bill of Rights originally only applied to the federal government. States were free to oppress speech and enforce religious laws. And that they did, and few thought those states inherently oppressive. At the time it was thought that such laws restricting speech, enforcing a state religion, etc, if chosen democratically, were tolerable. Protection from the tyranny of the majority hadn't yet become the predominate way to understand these newly declared individual rights. Rather, what most concerned the convention members was that the federal government not have the power to interfere with the democratic balance struck at the state level. Nonetheless, the wording of various state constitutions make it clear that freedom of speech, freedom of religion, etc were considered as much an individual right as any other. It's useful to understand that our modern notion of free speech as one of our most inviolable rights is _very_ recent. Oddly, it's perhaps one of the most recent innovations in American constitutional law, succeeded only by criminal procedural rights like Miranda rights. Until circa 1930, when Brandeis and Holmes kicked-off a reconceptualization of free speech, the right to free speech was understood much as it's still understood in Europe--highly qualified and subject to reasonable, democratically chosen restrictions. Before the modern era, states regularly (and legally) jailed abolitionists, unionists, communists, and others, simply for speaking in public or passing out literature; and not because they lacked a license, but for the actual content of their speech.
- deleted 9y ago
  [deleted]
- throwaway613834 9y ago
  Yes, the Star Chamber was exactly what I was referring to (I even wrote it but ended up erasing it). Your arguments don't follow, though. First, you say: > It's about a belief that it's immoral to put someone under oath (to God) and pit himself against himself and then you say > It's about as close to a human right as you could find in that age First, something being immoral doesn't imply that the opposite of it is a human right. Many people believe revenge is immoral but don't believe it to be a violation of their human rights. Not donating to charity might be immoral to many people but they wouldn't consider there to be a human right to take money from others. etc. Second, we're not talking about English law either. These people were fleeing from English law and establishing their religious freedom. So it's fair to assume their biggest worry in the 5th amendment wasn't religion or God, but rather the government. And third, your own source contradicts what you said. They clearly say courts relied on the the maxim (that “no man is bound to accuse himself”) as a protest against the unjust methods used to extract confessions. i.e., it wasn't that they viewed it as a human right in any sense, but that they began to invoke this maxim to avoid extracting forced (and hence potentially false) confessions. Which supports exactly what I said. (And note the use of "unjust" rather than "immoral" -- it's not about morality, but about administering justice. Religion and morality weren't new concepts then, and it's not like they avoided it initially due to moral reasons or suddenly avoided it due to feeling guilty.) I don't have time to make a longer response to the rest of what you said, but the negative wording itself is further evidence that they were worried about government behavior and not trying to declare what is considered a fundamental human right (or trying to even "advisingly" prescribe good behavior for private individuals for that matter). I'm baffled at how you say things that align directly with this and then draw the opposite conclusions. If you're going to use the state constitutions as evidence, they're not going to be evidence for what the federal Constitution says. They can of course be evidence for what they themselves say, and nowhere do I argue that state constitutions do or don't declare anything as a fundamental right.

wahern 9y ago

The right against self-incrimination enshrines a personal right that developed under English Common Law in response to Star Chamber inquisitions. It's not about oppressive governments, per se, but rather a belief that it's immoral to put someone under oath (to God) and pit himself against himself--tell the truth and face death, or lie and face eternal damnation. It's about as close to a human right as you could find in that age. Every lawyer at the constitutional convention would have been well aware of it, as at that time there weren't too many such unequivocal rights. See, e.g., http://apps.americanbar.org/abastore/products/books/abstracts/5090120chap1_abs.pdf http://apps.americanbar.org/abastore/products/books/abstract... The 4th, 5th, 6th, 7th, and 8th Amendments were basically lifted directly from established English legislative and common law. That Americans were regularly denied the benefit of these laws was one of the primary grievances of the colonies, so they basically just copy+pasted them into the Bill of Rights. As for the 1st amendment, I'm sure you've noticed that it's worded in the negative, and that's because the Bill of Rights originally only applied to the federal government. States were free to oppress speech and enforce religious laws. And that they did, and few thought those states inherently oppressive. At the time it was thought that such laws restricting speech, enforcing a state religion, etc, if chosen democratically, were tolerable. Protection from the tyranny of the majority hadn't yet become the predominate way to understand these newly declared individual rights. Rather, what most concerned the convention members was that the federal government not have the power to interfere with the democratic balance struck at the state level. Nonetheless, the wording of various state constitutions make it clear that freedom of speech, freedom of religion, etc were considered as much an individual right as any other. It's useful to understand that our modern notion of free speech as one of our most inviolable rights is _very_ recent. Oddly, it's perhaps one of the most recent innovations in American constitutional law, succeeded only by criminal procedural rights like Miranda rights. Until circa 1930, when Brandeis and Holmes kicked-off a reconceptualization of free speech, the right to free speech was understood much as it's still understood in Europe--highly qualified and subject to reasonable, democratically chosen restrictions. Before the modern era, states regularly (and legally) jailed abolitionists, unionists, communists, and others, simply for speaking in public or passing out literature; and not because they lacked a license, but for the actual content of their speech.

deleted 9y ago
[deleted]
throwaway613834 9y ago
Yes, the Star Chamber was exactly what I was referring to (I even wrote it but ended up erasing it). Your arguments don't follow, though. First, you say: > It's about a belief that it's immoral to put someone under oath (to God) and pit himself against himself and then you say > It's about as close to a human right as you could find in that age First, something being immoral doesn't imply that the opposite of it is a human right. Many people believe revenge is immoral but don't believe it to be a violation of their human rights. Not donating to charity might be immoral to many people but they wouldn't consider there to be a human right to take money from others. etc. Second, we're not talking about English law either. These people were fleeing from English law and establishing their religious freedom. So it's fair to assume their biggest worry in the 5th amendment wasn't religion or God, but rather the government. And third, your own source contradicts what you said. They clearly say courts relied on the the maxim (that “no man is bound to accuse himself”) as a protest against the unjust methods used to extract confessions. i.e., it wasn't that they viewed it as a human right in any sense, but that they began to invoke this maxim to avoid extracting forced (and hence potentially false) confessions. Which supports exactly what I said. (And note the use of "unjust" rather than "immoral" -- it's not about morality, but about administering justice. Religion and morality weren't new concepts then, and it's not like they avoided it initially due to moral reasons or suddenly avoided it due to feeling guilty.) I don't have time to make a longer response to the rest of what you said, but the negative wording itself is further evidence that they were worried about government behavior and not trying to declare what is considered a fundamental human right (or trying to even "advisingly" prescribe good behavior for private individuals for that matter). I'm baffled at how you say things that align directly with this and then draw the opposite conclusions. If you're going to use the state constitutions as evidence, they're not going to be evidence for what the federal Constitution says. They can of course be evidence for what they themselves say, and nowhere do I argue that state constitutions do or don't declare anything as a fundamental right.