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ValSmith | 5 reseñas más. | Aug 17, 2008 |
ValSmith | 5 reseñas más. | Aug 17, 2008 | (Full review at my blog)
War excites passions.
The nation itself may find itself in peril; thousands, perhaps millions of lives are at risk. It is often thought that dissent during wartime is tantamount to being disloyal. This view puzzles libertarians. They view it as patriotism's highest manifestation.
During wartime, the line between dissent and disloyalty is cloudy. The First Amendment, prohibiting Congress from enacting any law abridging freedom of speech, is put to the test.
Some judges and legal scholars reason the First Amendment is essential to self-government. They argue the First Amendment promotes character traits that are essential to a robust democracy: skepticism, personal responsibility, curiosity, distrust of authority and independent thinking.
“The best test of truth is the power of the thought to get itself accepted in the competition of the market,” wrote one of my favorite Supreme Court justices, Oliver Wendell Holmes, Jr.
Geoffrey Stone, the former dean of law provost at the University of Chicago, identifies six periods of widespread free-speech repression, dating back to the administration of the nation's second president, John Adams, and continuing through the Vietnam era. He identifies three principals that shape the Supreme Court’s understanding of the First Amendment.
1. No government paternalism in the realm of political discourse.
2. Punish the actor, not the speaker.
3. Differentiate between low- and high-value speech.
This is a book about Americans struggling with the responsibilities of self-government during times of war. It is about the presidents who struggled balancing liberty and security. It is about the justices of the Supreme Court who attempted to define the difference. More importantly, it is about those individuals who had the courage to dissent during perilous times. Some were fools; others were villains; some were individuals of great moral courage.
Geoffrey Stone has written a timely masterpiece about individual Americans who struggled to preserve our liberties.
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In thinking of those changes, I remember when, probably in the late 50's and early 60's, television censors made sure that offensive language couldn't be used, that risque behavior would never be aired, even married couples wouldn't be shown in bed together, and certainly there'd be no nudity shown in film or TV. In everyday life, obscenity laws were strictly observed, there was no birth control pill, gays were isolated and shunned, and abortion was only done in illegally dark alleys, much to the detriment of a woman's health. This was a reflection of a conservative time in polite society based on "accepted christian" values.
Today, things are much different. Geoffrey Stone, a University of Chicago Law Professor, takes us through the steps which changed these conservative Christian beliefs and Victorian era norms regarding male/female behavior. Today's laws and acceptible norms of society give individuals much greater freedom of expression in these private matters. In exploring how views have been changing, Mr. Stone explores the basis of the earlier Victorian, puritanical laws that had been in place during the 19th and 20th Century.
You'll be hard pressed to find specific mentions or prohibitions of sexual practices in the Constitution. To examine the background of rules governing "normal" sexual behaviors, Mr. Stone takes us through evolving social attitudes from ancient to recent times, starting with the Greek and Roman empires. Many may have heard stories of Greeks competing naked in the original Olympics, or of Greek soldiers being accompanied by young men during battle campaigns for sexual partnership, and have seen how the naked form of both men and women were celebrated in Greek sculpture. These stories provide some insights as to how these civilizations viewed nudity and sexual practices. Mr. Stone points out that many practices including birth control, abortion, fornication, same-sex sex, etc., were common and "normal" in ancient times. There were few or no laws or condemnations of these activities.
Prohibitions involving sexual activities seemed first to appear in Church teachings based on the writings of St. Augustine, who himself appeared to have had a weakness of the flesh as a young man. Eventually, he tried to correct his earlier prediliction for multiple female partners, and ended up believing and teaching that sex is a weakness, and should be practices only for procreation. This became accepted Church teaching, but rules governing sexual practices were not generally incorporated into secular law.
Jumping forward, when North American colonies were being established, conservative religious groups became established, especially in the colonies of New England, and brought a strict form of puritism with them. Life in their colonies were quite intolerant of deviations from dictated religious practices. One can think of the Salem witch trials as one example of intolerance from established norms. In some cases, intolerance was at such a level that the practices of those revered Pilgrims had parallels to some of the most conservative Islamists today. Both might condemn, ostracize, or even kill those accused of blasphemy, adultery, or not strictly following religious teachings and social mandates. But in those early colonial days, these practices remained governed by religious beliefs, and were not initially mandated under civil law.
Mr. Stone points out that many of these conservative religious beliefs became established to some extent in the New England colonies, but still argues against the idea that the U.S. was founded as a Christian Nation. Religious beliefs remained mostly separate from secular laws, and points out that many of the founding fathers more likely to be deists at best vs. conservative Christian zealots.
As far as the Founding Fathers establishing the Country as a "Christian Nation", not only were they careful to establish separation between church and state, but Mr. Stone pointed out that one of the first Treaties made by our country addressed this very issue. Article 11 of the Treaty of Tripoli establishing shipping rights between the United States and Tripoli declared "the Government of the United States of America is not, in any sense, founded on the Christian religion." This treaty was ratified by the Senate without dissent, and signed by President John Adams in 1797.
Despite an attempt to keep church rules separate from secular law, Christian values did begin to creep into State Laws during the Victorian Age in the early to mid 19th Century, primarily at the prompting of religious activists. Anthony Comstock was one of the key actors in this movement, and politicized the ideas of Victorian morality. Under his influence, the Comstock Act was passed during the Grant Administration, and outlawing indecent and obscene materials, including teaching about birth control. The belief of these conservative social and religious leaders was that if women were allowed to use birth control, it would lead to them becoming promiscuous. Even today, there are politicians who push sex ed programs based on abstinance versus providing education about birth control in order to keep young women "pure".
At any rate, strict rules against obscenity, birth control, abortion, same-sex sex, etc. became part of the legal code at this time. Following enactment of the Comstock Act, one couldn't even say anything dealing with sex, much less teach or inform people about the body, sexual practices, contraception, or abortion. Opponents of these laws fought a losing cause. For example, Margaret Sanger, a social activist who fought to teach women about birth control and abortion, was periodically prosecuted and jailed under Comstock Act regulations.
Eventually, especially after World War I and the Roaring Twenties, social norms evolved, and judicial rulings dealing with Comstock Act violations began to change, ultimately leading to a number of judicial appeals and Supreme Court reviews. The book goes into some detail in the latter sections discussing a number of recent Supreme Court decisions affecting birth control, gay rights, and especially about abortion over the years. Mr. Stone provides an excellent review of these issues, explaining how laws loosening the old rules came to be enacted despite religious objections to the changes. It's interesting to note that, if the public surveys referenced in the book on these issues can be believed, the majority of Americans gradually came to favor teaching about birth control, allowing a woman's right to choose, passing gay right legislation, etc. However, pressure from conservative religious groups (e.g., people who vote) opposed these initiatives, resulting in a Congress reluctant to pass more liberalized legislation.
Mr. Stone provides ample discussion on both sides of these many issues, and the rational for how many of the current court decisions have been made. He also explains that the law may not yet be settled on many of these issues, and that future Supreme Court cases may change how laws are interpreted.