War and Peace and the Freedom of Speech
“To hold a pen is to be at war,” wrote Voltaire. (But, he also wrote, “No opinion is worth burning your neighbor for.”)
An important aspect of war that we teach the people who fight our wars needs to be better taught to students (and others) who believe they are fighting their own war by protesting or demonstrating (on any side of any issue), as well as those who oppose them. Even in actual war and warfare, limits are imposed by the law.
The people who physically fight to keep this nation and its people free and safe are preemptively educated about how the law of war limits what they are allowed to do—even when desperate measures might seem warranted in defense of self, others, cause or country. They also are educated about an important reason for the rules: the law and our own conduct (and what others know about our conduct) protect us and our fellow fighters. We do unto others as we would have them do unto us.
No one (students or officials who would restrain or punish them) should believe that they have any right to physically injure, harass, threaten or otherwise intimidate any other person or infringe on students' pursuit of education because of the mere political, physical or social power to do so. Educational institutions exist for the important public purpose of educating our citizens to exercise their rights and fulfill their responsibilities under our Constitution. All speech on campus—including all restriction or punishment of student speech—should serve that purpose.
It seems that more citizens exercising their First Amendment rights and freedoms and more public servants exercising their power to restrict or punish excesses need more education about the limits of their respective rights and powers.
The most important parts of our Constitution are its two firsts: the Preamble and the First Amendment. The first words of the Preamble are the most important and imposing words of the entire Constitution: “We the People.” Our Constitution begins with those words to emphasize (with the first, biggest, boldest words) that, in America, the citizenry is sovereign. We have no rulers. Even so, we are and we must be ruled by the law. Everything anyone does under the Constitution must further the purposes stated in the Preamble, including “establish Justice” and “secure the Blessings of Liberty” but also “promote the general Welfare” and “insure domestic Tranquility.”
James Madison very likely was the very best thinker and writer of his day about our Constitution. He had extraordinary intelligence and integrity, and he was the consummate public servant. For very good reason, he was called the Father of the Constitution and he was the primary writer of our Bill of Rights. That is not to say that the Constitution was reared exactly as Madison wished. Far from it. But Madison knew and wrote about our Constitution and our people (relevant to our freedom to think and speak) with far greater insight and integrity than perhaps anyone else. A accomplished artist and poet once characterized the writing of constitutions as “painting for eternity.” He could have been speaking about Madison.
In the 1760’s and 1770’s, the most vital questions in the colonies were about who was sovereign and what sovereignty meant. The answer to those questions was the very essence of the American Revolution, the Declaration of Independence and our Constitution. In Britain, Parliament was sovereign and the people were mere subjects of Parliament and the crown (king or queen). In America, no part of government is sovereign, and the people are citizens, not subjects.
In 1800, Madison reminded Americans why the Constitution’s Preamble and the First, Ninth and Tenth Amendments say what they say: “The people, not the government, possess the absolute sovereignty.” “The truth declared” by the plain text of much of the original Constitution (and the First, Ninth and Tenth Amendments) is “the sovereignty of the people over constitutions” and “[t]he authority of constitutions over governments.” Public officials are public servants.
The First Amendment merely declared explicitly what was obviously implicit in the original Constitution: sovereign citizens clearly have the “right of freely examining” both the “characters and [the] measures” of their public servants, “and of free communication among the people thereon.” The reason is crucial: such freedom has been “justly deemed the only effectual guardian of every” American “right.” “But,” Madison also emphasized, “it is the reason, alone, of the public, that ought to control and regulate the government. [Our] passions ought to be controlled and regulated by the government.”
The First Amendment (extended to the state and local authorities by the Fourteenth Amendment) confirms that no public servant has any power to abridge “the freedom of speech” of sovereign citizens (or any people). But the express acknowledgment of “the freedom” never did mean that such freedom was absolute. Trespassing, assault, harassment and threats are what they are, regardless of whether they are part of a protest. The time, place and manner of speech certainly can be restricted if such restraints are reasonable. But the best restraint and the best reason for restraint on every side of every issue is to do unto others as we would have them do unto us.