Wednesday, February 2, 2011

First Amendment II: Congress

Congress shall make no law...
There are two critical points to be made in the set up of the Amendment:
1) "Congress". The party under discussion is the head of the legislative branch of the Federal Government. By implication then, the conditions laid down in the Amendment do not apply to the other entities in our federal system. While Congress may have restrictions places upon it, these restrictions do no apply to state or local governments.
2) "shall make no law" In a sense, this is both very clear and very vague language at the same time. It is a most clear statement: Congress shall make no law. What does that mean? Exactly what it says, "no law" means "no law." From a generation of people who greatly delighted in round-about phrases and in dancing around the object of contention, this is a strikingly clear phrase.
And yet, there's still the problem of application. Once one begins to ask what does "no law" really mean, we become lost in abstraction. Does it mean that Congress is never to act at all in any of the areas laid out in the Amendment? Does it mean that Congress shall make no law prohibiting the various freedoms expressed, but that it can pass laws promoting those freedoms? This is of course where most interpretations of the First Amendment founder, if not actually collapse.
Fortunately, however difficult the wording might be, the implication and general intent remain clear. Congress is to be inactive in relation to the rights enumerated in the rest of the Amendment. If there is to be litigation, if "no law" actually means "few laws", they are to be just that, few, minor, and far between. Sweeping legislation is an explicit violation of both the intent and the wording of the Amendment.

No comments:

Post a Comment