Winter's Bone,First Amendment and Rhinecliff Park

I read today under that pavilion that you see in the picture. The location is Rhinecliff,N.Y. on the Hudson river.Lovely September day with sail boats and cool breezes for whatever ails you. I came over to this spot because I knew it would be available and I would later attend a movie(Winters Bone)in Rhinebeck which is just a few miles inland. I'm still reading "The living Constitution"by David Strauss. The latest chapter today visited the First Amendment that protects freedom of speech.The following are central principles of the First Amendment.(1)it protects the right to criticize the government(Pentagon Papers)(2) that not all speech should be protected as rigorously as speech criticizing the government(low value speech--defamatory statements,fighting words,perjury,blackmail)(3)there is a distinction among different kinds of regulations(A law that prevents people from demonstrating in a way that blocks city streets during business hours). Strauss states that the original understandings of the First Amendment are essentially irrelevant to the American system of freedom of expression as it exists today.The Supreme Court,through the common law process, has created the understandings.

The text of the Constitution has created problems for interpretation.The first word of the First Amendment is "Congress". Taken literally,that means the president and courts could prohibit freedom of speech.If we focus just on the text,the case for protecting free speech against government infringement generally is actually somewhat weak. For a hundred years, the states were free to suppress speech in any way they wished.The Bill of Rights applied only to the Federal Government.The Fourteenth Amendment(1868)has been interpreted to apply the First Amendment and most of the Bill of Rights to the states. The Fourteenth Amendment prohibits states from denying liberty without due process and infringing the privileges or immunities of citizens of the U.S. Those clauses have been incorporated into the First Amendment.

According to Strauss, the original understanding of the First Amendment wasn't clear about freedom of expression concerning the government.There was a robust tradition in England for punishing government protest before the Constitution was written(1704--Justice Holt)) To the extent that we can determine(Strauss) the original understandings,there is a good argument that the First Amendment was not understood to outlaw prosecutions for seditious libel.In 1798,the Sedition Act was enacted by Congress that expressly punished dissent(John Adams and Alexander Hamilton defended it--Madison,who is the most important drafter of Bill of Rights was against).There were persecutions for blasphemy and defamation during this time period in many states.Blasphemy would be unthinkable in our present while defamation law is subject to many important restrictions.The body of has been a product of the evolution of common law with regards to the First Amendment. It developed over time with principles that were tried and sometimes eventually accepted,sometimes abandoned,sometimes modified in light of ongoing experience.The law of the First Amendment is a creation of the living Constitution.

Winter's Bone is about an Ozark mountain girl who hacks through dangerous social terrain as she hunts down her drug dealing father.The families involved are from a dirt poor rural area with few jobs to speak of which is similar to many locations around the country. An hour drive from my house will bring you into desperate,unforgiving farms that have lost independence and revenue.The movie was  typical in the sense that the heroine eventually overcame her obstacles and a somewhat happy ending ensued. What I came away with was the great poverty that that has existed in rural and urban white communities since the late fifties exposed it and tried to do something about it.The recent poverty figures have listed 12.3 % of white families are below the poverty line.65.1% of American households are white according to the 2010 census.If you do the math,24.6 million whites in America live in poverty.This numbers far encompasses the black community(9.1 million).It is true the black and Hispanic communities have a higher percentages(25%) of their people in poverty but the numbers of the white community are overwhelming.What can be done about rural and urban poverty has been an issue for fifty years and nobody has found an answer. The rural communities lack employment opportunities and have a hard time leaving their world for more urban areas.One of my main interests is how to bring jobs to communities throughout NYS. I will eventually do many blogs in this area but have to do the full research in order to make sense of the entire problem.It seems lower tax or non tax incentives isn't enough to encourage companies to invest.Does government need to be the provider of jobs(and revenue) where capitalism fails?


More on this issue and the living constitution tomorrow.