Posted by
Andrews on Thursday, March 27, 2008 12:03:50 PM
I think it is time for a really basic lesson. I would normally think it insulting to explain such basic things to adults, but I have seen this error so often of late, that I worry that some adults may have missed an essential principle.
The principle is this: There is a difference between governmental action and private action.
Let me explain.
One of the most common manifestations of this is when discussing a court case. The accused can be quite blatantly guilty, but, inevitably, one speaker will say "Yes, but he is innocent until proven guilty." Which is a perfect example of my point.
No one is forced to presume someone innocent. The concept of innocent until proven guilty applies only to the state. An individual is free to make any assumptions he or she wants about the accused. I am free to run through the streets shouting that OJ killed his wife if I want*. There is no legal requirement that I even accept someone's innocence or guilt AFTER a court finding, much less that I presume innocence before the trial concludes. An individual is not bound by the restrictions placed on government.
A second manifestation I have seen recently is the concept that judging Obama based on Reverend Wright's speech constitutes a "religious test" for office. Now, ignoring that Obama's claims of mentorship make his relation with Wright more than a pastor-parishioner relationship, my argument is that citizens are free to apply any religious test they want. You can vote only for Lutherans or against Mormon or never for Catholics or only for Copts if you want (though the last may limit your choices quite drastically).
My point being, only the government cannot apply a religious test. The state cannot say no Jews can hold office, or only Catholics can run for Senate. This rule has nothing to do with individual action. Everyone is free to be as bigoted about religion as he or she pleases.
I am sure I could extend this list, but I think the two examples are enough. The rule is very simple, after all. It can even be summed up in one sentence.
All of those rules in the constitution, and the principles of common law as well, apply only to state action, not individual choices.
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* I may be liable for my statements in civil court should I do this, but I am not prevented as a matter of law from doing so. As I said elsewhere, I think this distinction between liability and prohibition has confused our understanding of free speech. In my mind, it is not so much that you are prohibited from shouting "fire" in a crowded theater, as you are liable for the consequences, both civilly and criminally. In other words, I think the interpretation currently given is incorrect.