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Date Posted: 12:04:08 03/24/03 Mon
Author: Equity
Subject: First Ammendment (Meaning)

Dear Mr. Liberty,

You make a large point on the issue of the wording of the 1st Amendment “Congress shall make no law...”. I would respectfully submit that the situation is not as clear as you seem to suggest.

I am sorry if the following seems a bit like teaching-you -to-suck-eggs but if we are talking about Constitutional law then it is important to clarify some details.

Common Law jurisdictions like the United States (in all except Louisiana) and the United Kingdom (in all except Scotland) rely on the interpretations of Law and Equity given by the Judiciary. I am less familiar with United States jurisprudential interpretive practice but in the United Kingdom the approach is either to follow what is termed the “Black Letter” method of interpretation or the “Mischief” method.

The first looks at the black letter of the law and makes a judgement accordingly the other is to determine the mischief that the measure was designed to deal with.

I would suggest that given the necessary imprecision of a constitutional document (such a document having to survive a great deal longer than non-entrenched legislation which can be altered far more quickly than an amendment) the Mischief method is a far more valid method of determining constitutional law.

It is important to note that in no part of the original Constitutional document is the power to decide on the establishment or otherwise of religion given to Congress. Indeed I would argue that section 8 of the First Article of the Constitution can be, broadly speaking, divided into three area: those referring to issues of war, to taxation and to ensuring uniformity of trade, currency between the states. The issue of religion does not arise.

It is therefore easy to conclude that the Bill of Rights was not so much a limitation on the Federal government per se but rather a general statement about rights within an Enlightened country. I would consider that the Bill of Rights being more-or-less contemporaneous with the Declaration of the Rights of Man (26th of August, 1789) issued by the other Enlightened regime of the period (although, in an amended form, yours has lasted longer).

So to simply say that this is a restriction on that which can be enacted by Congress is a slight missing of the point.

I would suggest that the wider ‘mischief’ rule has been used with regard to interpretation of the second Amendment. I have not done a statistical survey but I would suspect that the percentage of those private citizens who have enrolled into a militia well regulated or otherwise would be small. (This paragraph should not be construed as to suggest that I am anti-gun - at the moment I am ambivalent on the subject).

I would say that I agree with you on the issue of rights being accompanied by responsibilities. We have here, and I suspect you in the United States also, the Tort of Slander. I can say that which I choose but if I impugn your reputation inaccurately then I am liable to be sued in court for restitution. There is, I believe, a more potent sanction in that the more an idea is bought into the open, discussed, analysed and assessed the more its merits or otherwise can be known. To this end I am impressed with your statement: “I dare ya to disagree” which encourages some of the ideas out into the open.

I am unfamiliar with the work of the Dixie Chicks - for me C & W died with Patsy Cline. I suspect that the banning of their work had more to do with a punitive measure. People can like, or dislike, someone’s work whist fervently (dis-)agreeing with their views. Though I think I have gone for far too long.

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