Oh goodness, this is just silly. Any high school civics student can understand what Justice Thomas is saying about originalism even though the author of this article plainly cannot. All you need to do is actually read the First Amendment. Notice those first 5 words? "Congress shall make no law"? Notice that it does not say that "States shall make no law"? Notice that it does not say that "School boards shall make no law"? It's pretty clear who the First Amendment was aimed at. Congress. And it's pretty clear that our Constitutional understanding has never changed, since that word, "Congress" is still the only word in the First Amendment that tells us to whom the right of free speech runs against. And, as Sen. Leahy, repeatedly reminds us on the Senate floor, the First Amendment has never been amended. It still says, "Congress". Not school boards. So that is really not too hard to understand, from an originalist's point of view is it? You just read the text.

And as for the article's claim that the First Amendment was somehow magically amended at the time of the adoption of the 14th Amendment, just after the Civil War (despite the inconvenient fact that the 14th Amendment makes no reference to the First Amendment or to the Bill of Rights), well, that claim is simply daft. Even the most liberal members of the Supreme Court have never claimed that. As late as the 1920's and 1930's, the Court was handing down decisions repeating the common understanding (because it tracks the actual language of the Constitution) that the First Amendment only applies to Congressional enactments. It is only with the Warren Court, nearly a century after the adoption of the 14th Amendment, that the claim that the later Amendment amends the earlier one was propounded by the Supreme Court. That is of course the prevailing view of Constitutional jurisprudence now, but you can hardly charge an originalist with inconsistency for simply following the understanding -- based on the actual language of the Constitution -- that prevailed for all of our nation's history except the last few decades.

“Congress shall make no law . . . abridging the freedom of speech” + “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of . . . liberty . . . without due process of law” = No State shall abridge the freedom of speech.

School boards are agents of their respective States + No State shall abridge the freedom of speech = No school board shall abridge the freedom of speech.

Hmmm. I don't understand your rejoinder. If the drafters of the 14th amendment had intended the result of their amendment's adoption to be that "Congress shall make no law" suddenly meant "States also shall make no law", surely they would have said so. Somewhere? Preferably in the text of the First Amendment, while they were in an amending mood? They did not.

And if I am wrong why did it take the Supreme Court nearly a century to discover this pretty fundamental change to the First Amendment?

Again I say, "Congress" means "Congress", not "State" or "school board". It's not rocket science. If the drafters of the 14th amendment had had any intent to alter that they would have amended the First Amendment to insert those words which you read into it. They did not.

Now you're the one who's guessing at their intent. Since it's plainly clear through incorporation that the 14th DOES cover the 1st, why would they hack apart the Bill of Rights?

And, incidentally, the study of this area of the law has been done for YEARS prior to your appearance here today. Sadly, you have not just "discovered" the solution to the conundrum of the 14th Amendment. I know it feels that way--every student in con law class thinks they've figured out what you state here--but sorry, this is not how it works.

"But it's so obvious" is not a very strong debating point. Jascob nailed it on the head and instead of a logical retort (there are some, by the way) you've decided that "they just wouldn't have done it that way" is the best argument?

So, you are saying that any student can verbally denigrate the teacher - and the teacher cannot punish him? That's a new one...

If you strictly adhere to the words, then yes.

Fortunately, reasonable and intelligent people realized long ago that mechanically applying rules without regard to circumstances creates absurd results. That is why we have courts and legislatures.

The hard part is getting people to agree and act reasonably about when to deviate from strictly applying the rules.

In your example, yes, teachers should be allowed to discipline students who are verbally disruptive. Not coincidently, this is an exception to the strict rule carved out by the courts some time ago.

Did the people who wrote the Constitution believe that the teachers have the right to punish students for disruptive speech? The answer is obvious - "Yes".

Are you saying this is the argument that Justice Thomas actually made in this or any other case? If so, please quote that part of his opinion.

So the framers were concerned about the ability of all those teachers in the public school system that wouldn't exist for another 70 years to contain "disruptive" speech? This is so idiotic on so many levels that you can't take refuge in your "I'm not a native English speaker" defense.

Even if your historically ludicrous conjecture were remotely accurate, can you point to any Supreme Court decision in the history of the U.S. upholding a restriction on "disruptive" speech?

If you knew anything about First Amendment jurisprudence, you'd know that any restriction on speech -- a core Constitutional right -- must be narrowly tailored, must serve a compelling government interest, and must not be so vague and broad as to vest arbitrary authority in the government to determine what speech falls within the prohibition. Even a Regent University alumnus could have told you that.

Agane Jonnnny us po blap folk need smart peepol like yous to korec our gammar and spellin.

Dusn't yo first sentance in pragraf 2 hav an errorr in subjec and verb agreemeant?

So the framers were concerned about the ability of all those teachers in the public school system that wouldn't exist for another 70 years to contain "disruptive" speech? This is so idiotic on so many levels that you can't take refuge in your "I'm not a native English speaker" defense.

Aha. So, there were no government run schools in the USA for 70 years after the Constitution was signed. That's an interesting point of view - even though it contradicts the facts. For example, there were public schools in the New England colonies of Massachusetts, Connecticut and New Hampshire way in 1600s - somewhat before the US Constitution was written. Moreover, "after the Declaration of Independence, 14 states had their own constitutions by 1791, and out of the 14, 7 states had specific provisions for education." But these are facts - and you are not interested in facts. Right? After all, why cloud your thinking with the truth?!

Come on, bitch, you know you are wrong.

Even if your historically ludicrous conjecture were remotely accurate, can you point to any Supreme Court decision in the history of the U.S. upholding a restriction on "disruptive" speech?

This is hardly an argument against the view that the judges should follow the meaning of the Constitution which was decided by the people who wrote it. You should re-read the article which critisizes Thomas...

If you knew anything about First Amendment jurisprudence, you'd know that any restriction on speech -- a core Constitutional right -- must be narrowly tailored, must serve a compelling government interest, and must not be so vague and broad as to vest arbitrary authority in the government to determine what speech falls within the prohibition. Even a Regent University alumnus could have told you that.

Of course, this claim has nothing to do with the US Constitution, or US laws. You just state your personal opinion. Anyway, this is quite funny, coming from the guy who wants to prohibit the radio stations with the right-wing hosts. Yap, Makes perfect sense...

Thx for an excellent clarification.

Gerry

johnnyb:

Even if your historically ludicrous conjecture were remotely accurate, can you point to any Supreme Court decision in the history of the U.S. upholding a restriction on "disruptive" speech?

You mean besides Morse v. Fredrick, 127 S. Ct. 2618, i.e., the case being discussed? How about Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, which you would know about if you had read the Morse opinion.

johnnyb:

If you knew anything about First Amendment jurisprudence, you'd know that any restriction on speech -- a core Constitutional right -- must be narrowly tailored, must serve a compelling government interest, and must not be so vague and broad as to vest arbitrary authority in the government to determine what speech falls within the prohibition. Even a Regent University alumnus could have told you that.

And if you had read the Morse opinion, or practically any other case dealing with the First Amendment in schools, you would know that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." (478 U.S. at 682.)

But instead of informing yourself, you choose to glibly throw insults like you are some kind of know it all. Try remaining civil in the future.

"Of course, this claim has nothing to do with the US Constitution, or US laws. You just state your personal opinion."

"n4 There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth...

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities ...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."

United States v. Carolene Products Company, 304 U.S. 144 (1938)

So your argument is that the Bill of Rights doesn't apply to State governments? Interesting.

Does that mean that every decision based on 14th Amendment jurisprudence should be overturned?

I will assume that your argument about the relatively recent provenance of this jurisprudence is not damaged by the fact that you overlooked that in 1938, long before the Warren Court, Justice Stone wrote: "...a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth...."

I also assume you'll join me in proposing and fighting for a new amendment that does exactly what you claim the 14th fails to do, so as not to eviscerate the principles that the framers intended to reserve for all Americans by letting State governments nullify the Bill of Rights.

I mean, you're pro-Bill of Rights, right?