For people, the citizens of the United States, laws are directed at prohibited acts. Citizens assume, and rightly so, that unless something is explicitly outlawed--it is legal. Two sections of the Constitution ensure this ideal. The first is an outright ban on Ex Post Facto legislation. Congress may not pass a law retroactively to punish a citizen for an act committed before such legislation. Therefore, citizens performing unregulated acts, no matter how immoral or unethical, have immunity from future legislation. The second protection is the Ninth Amendment, stating that the rights guaranteed by the other amendments ‘shall not be construed to deny or disparage others retained by the people’. The fear was that by simply listing some of the rights of the people, other rights would be denied for their lack of mention.
For the government however, it is the exact opposite. The government, supposedly, can only act within the powers explicitly granted, by the people, in the Constitution. Therefore, unmentioned powers are unconstitutional if acted upon. As many know, the federal government is broken into three separate branches. Each of the three branches has its own article clearly defining the power and purposes of that branch. The legislative branch is defined by Article I, and Section 8 lists the specific seventeen powers which Congress is granted. Only within those enumerated powers is Congress supposed to provide, regulate, and legislate.
However, Congress is not unlimited within the Article I Section 8 powers, further restrictions exist to limit congressional powers. Article I Section 9, and several amendments place those additional limitations on the enumerated powers. This is where the First Amendment is often misinterpreted. The First Amendment does not give rights, it simply limits congressional actions. The first five, often forgotten, words of the amendment make that intention clear--“Congress shall make no law...”. Such amendments were placed into effect because it was feared that legislators would improperly regulate using their own interpretation of powers granted in the Article I Section 8. Essentially, if a legislator believes that eliminating free speech may be “necessary and proper” to “regulate commerce”, they may not do so because of the limitations imposed by the First Amendment. Therefore, the First Amendment does not give any power to anybody, instead, it further restricts a legislature that may incorrectly assume it had such powers granted to it.
So, to be clear, the First Amendment does not grant rights to anybody. It is by limiting congressional actions that de facto rights are, in turn, assumed by everybody. By limiting what Congress may legislate, the people are free to exercise those unregulated acts.
Very unpopular decisions arise from such a system. Frequently, the Supreme Court is tasked with the burden of striking down popular laws which, on technical grounds, overstep restrictions imposed by the First Amendment. For instance, cases like Snyder v. Phelps (2011) and Citizens United v. FEC (2010) show that the Supreme Court will deny government powers of regulation in anything deemed limited by the First Amendment.
In Citizens United v. FEC (2010) the Supreme Court was asked whether Congress had overstepped constitutional limitations by passing the “Bipartisan Campaign Reform Act” (BCRA), better known as “McCain-Feingold”. One of the main reasons for the BCRA was to prohibit unlimited corporate, foreign, and not-for-profit donations to American political campaigns. The fear of potentially unlimited influence coming not only from a corporation, but a foreign one, caused Congress to act. The problem is, donating to political campaigns has been classified as free speech under the First Amendment, and because of such a classification, no laws can exist to prohibit such actions. The Supreme Court was simply asked whether the act was an unconstitutional law.
So, the Supreme Court was not asked whether citizens would benefit benefit from the BCRA, or the popular opinion on the matter. The Supreme Court was tasked with ‘upholding’ the Constitution of the United States--which they did, by striking down the BCRA.
Public outrage ensued, often citing that the First Amendment ‘does not give protection to corporations, let alone foreign ones’. Well, that is correct, foreign corporations receive just as little protection under the First Amendment as citizens of the United States do. That is because, again, all protections offered by the First Amendment are de facto through Congressional limitations.
This misinterpretation of the First Amendment is cause for much debate. A majority of justices, all having gone to law school, correctly understand how the Amendment applies. Unfortunately, though, most people in the United States do not identify the distinction between interpretations. Therefore, much of the debate surrounding Citizens United was based on factually incorrect understandings of the Constitution.
If the First Amendment had included text prohibiting Congress only in the case of ‘citizens’, they could have properly exercised their Article I Section 8 powers to prohibit, limit, and regulate corporate donations. But, since the First Amendment makes no such distinction, Congress is prohibited from forbidding any political donations, foreign or domestic, corporate or individual.
In the United States, the rights of the people are assumed, therefore congressional powers are granted. Nowhere are rights given to people, because that would imply that the government has the authority to not only grant freedom, but take it too.
For the government however, it is the exact opposite. The government, supposedly, can only act within the powers explicitly granted, by the people, in the Constitution. Therefore, unmentioned powers are unconstitutional if acted upon. As many know, the federal government is broken into three separate branches. Each of the three branches has its own article clearly defining the power and purposes of that branch. The legislative branch is defined by Article I, and Section 8 lists the specific seventeen powers which Congress is granted. Only within those enumerated powers is Congress supposed to provide, regulate, and legislate.
However, Congress is not unlimited within the Article I Section 8 powers, further restrictions exist to limit congressional powers. Article I Section 9, and several amendments place those additional limitations on the enumerated powers. This is where the First Amendment is often misinterpreted. The First Amendment does not give rights, it simply limits congressional actions. The first five, often forgotten, words of the amendment make that intention clear--“Congress shall make no law...”. Such amendments were placed into effect because it was feared that legislators would improperly regulate using their own interpretation of powers granted in the Article I Section 8. Essentially, if a legislator believes that eliminating free speech may be “necessary and proper” to “regulate commerce”, they may not do so because of the limitations imposed by the First Amendment. Therefore, the First Amendment does not give any power to anybody, instead, it further restricts a legislature that may incorrectly assume it had such powers granted to it.
So, to be clear, the First Amendment does not grant rights to anybody. It is by limiting congressional actions that de facto rights are, in turn, assumed by everybody. By limiting what Congress may legislate, the people are free to exercise those unregulated acts.
Very unpopular decisions arise from such a system. Frequently, the Supreme Court is tasked with the burden of striking down popular laws which, on technical grounds, overstep restrictions imposed by the First Amendment. For instance, cases like Snyder v. Phelps (2011) and Citizens United v. FEC (2010) show that the Supreme Court will deny government powers of regulation in anything deemed limited by the First Amendment.
In Citizens United v. FEC (2010) the Supreme Court was asked whether Congress had overstepped constitutional limitations by passing the “Bipartisan Campaign Reform Act” (BCRA), better known as “McCain-Feingold”. One of the main reasons for the BCRA was to prohibit unlimited corporate, foreign, and not-for-profit donations to American political campaigns. The fear of potentially unlimited influence coming not only from a corporation, but a foreign one, caused Congress to act. The problem is, donating to political campaigns has been classified as free speech under the First Amendment, and because of such a classification, no laws can exist to prohibit such actions. The Supreme Court was simply asked whether the act was an unconstitutional law.
So, the Supreme Court was not asked whether citizens would benefit benefit from the BCRA, or the popular opinion on the matter. The Supreme Court was tasked with ‘upholding’ the Constitution of the United States--which they did, by striking down the BCRA.
Public outrage ensued, often citing that the First Amendment ‘does not give protection to corporations, let alone foreign ones’. Well, that is correct, foreign corporations receive just as little protection under the First Amendment as citizens of the United States do. That is because, again, all protections offered by the First Amendment are de facto through Congressional limitations.
This misinterpretation of the First Amendment is cause for much debate. A majority of justices, all having gone to law school, correctly understand how the Amendment applies. Unfortunately, though, most people in the United States do not identify the distinction between interpretations. Therefore, much of the debate surrounding Citizens United was based on factually incorrect understandings of the Constitution.
If the First Amendment had included text prohibiting Congress only in the case of ‘citizens’, they could have properly exercised their Article I Section 8 powers to prohibit, limit, and regulate corporate donations. But, since the First Amendment makes no such distinction, Congress is prohibited from forbidding any political donations, foreign or domestic, corporate or individual.
In the United States, the rights of the people are assumed, therefore congressional powers are granted. Nowhere are rights given to people, because that would imply that the government has the authority to not only grant freedom, but take it too.
