How about a break from politics so we can talk about law.
Six Supreme Court so-called justices tell us they’re nothing to worry about because they are literalists calling balls and strikes.[1]
So here’s the First Amendment: “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.”
Here’s what the standard Thesaurus on my computer gives us for synonyms which mean the same thing as the terms in the 1st Amendment:
“Congress” is a “conference” or “meeting;”
“Establishment” includes the “creation” of “buildings” and “organizations” which then can’t be regulated;
“Exercise” includes “bodybuilding;”
“Speech” includes all forms of “language” or “communication,” and so “freedom of speech” no doubt includes cheap porn, obscenity, scams and fraud;
“Press” includes “crush,” “crowd,” “swarm” or “force;”
“Assemble” includes “manufacture” or “construct;”
Grievance includes “gripes,” “grumbles” and “moans.”
So apparently the First Amendment prevents a conference or meeting from regulating creation of buildings, prohibiting bodybuilding, or abridging inexpensive pornography, obscenity, scams, fraud, or of the crush, or the right of the people to manufacture or construct from pieces, and to beg or plead for the redress of gripes, grumbles or moans.
I’m not sure I trust six justices or, as the Constitution describes them, judges, with a thesaurus, but it’s literal.
Just in case the First Amendment wasn’t a good example, let’s try another. Here’s the text of the 2nd Amendment: “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.”
The Thesaurus gives us synonyms meaning the same things as the terms in the 2nd Amendment:
“Regulated” includes “synchronized;”
“Militia” includes “mercenaries,” “guerrillas,” or “soldiers of fortune;”
Security includes surety and collateral which to an attorney like me prominently includes mortgages, or shares of stock.
And since starboard means the right side,
The literal meaning of the Second Amendment is:
Synchronized mercenaries, guerrillas, or soldiers of fortune, being necessary to the mortgage, or shares of stock, of a free State, the starboard of the people to keep and bare their upper limbs, shall not be abridged.
Since the Second Amendment applies to people, it includes children – oh Susie – who play games at which they shoot, kill, wipe out, blow up or annihilate folk, nice folk, and they do it fast, bang, bang.
But we are such a peace-loving people who regularly “shoot,” “blast” or “fire off” our messages. So, let’s all take a relaxed Canadian vacation!
One more example. The Fifth Amendment contains many clauses but let’s focus on its protection for “life, liberty and property.” Liberty as described in the Declaration of Independence seemed to include slavery, especially Tom Jefferson’s freedom to enslave his children and others. The Declaration even complained that King George removed some of the slaves in violation of their owners’ property rights.
So, watch out for that-balls-and-strikes umpire when he calls the Amendments. Plus, some very widely respected historians concluded that the original meaning of freedom was the franchise, that is, the ability to vote[2] – yet that is precisely the freedom that the literalists on the Roberts Court despise.[3] We’ve already had way too much of THEM.
May Thanksgiving clear the air. All the best to you.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.
[1] Chief Justice Roberts Statement - Nomination Process, https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
[2] Gordon S. Wood, The Creation of the American Republic 1776-1787 (1969, Institute of Early American History and Culture).
[3] See Stephen E. Gottlieb, Supreme Court - Ditch it, WAMC.org (March 26, 2024).