The first reason to be surprised at the ease with which the Taft-Hartley amendments passed is that the proscription against secondary strikes is patently unconstitutional. The reason that it is unconstitutional is that it violates the freedom of assembly clause of the First Amendment. A statement such as the one preceeding obviously requires legal analysis to support it, but one really needn't be a lawyer to understand it.
The legal analysis involves interpretation of the First Amendment. All of the cases hold that when a provision of the constitution requires interpretation, the task of the court is to give the provision in question the meaning that the "framers" ( the guys who wrote and ratified the Constitution) intended it to have. All of the cases also hold that the first step in determining the intent of the framers is to examine the language of the provision itself. If the language is clear and unambiguous, then no interpreting is required, and the plain language should be given effect. Only when there is ambiguity in the language of the provision does the need for interpretation arise. When one or more ambiuities are found, the courts resort to aids extrinsic to the languauge itself to assist with interpretation. Typically, the first extrinsic aid to which resort is made is history.
So the first step in the analysis is to examine the language of the amendment. In its entirety, the First Amendment states as follows:
Conress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.The phrase "Congress shall make no law" at least appears to be an absolute; i. e., it appears to mean just what it says - no law. On its face, then, the amendment forbids, in absolute terms, the passage of any law infringing upon any of whatever freedoms are guaranteed. There would appear to be no ambiguity in the absolute nature of the prohibition.
The conclusion that the prohibition is not absolute is implicitly justified by the following logic. Everybody knows what "speech" is. "Speech" happens when somebody says something. Everyone knows what "freedom" is. "Freedom" happens when restraint is absent. Obviously, then "freedom of speech" means that one can say what one wants without fear of legal repercussion. Yet it is clear that the framers could not have intended to create a right to shout "Fire!" in a crowded theater. It is also clear that the framers could not have intended to protect someone who announced the date and time of the sailing of troop ships. Therefore, the framers could not have intended to absolutely prohibit any law which infringes upon the right of a citizen to say whatever he wants whenever he wants to. Thus, the First Amendemnet is not an absolute. It follows that since the proscription against the abridgement of freedom of speech is not an absolute, neither are the proscriptions against the other enumerated rights. So while the language used would seem to compel the conclusion that the First Amendment is an absolute, logic compels a contrary conclusion.
The result reached by employing this logic is absolute tommyrot. Since the framers used absolute language, it is at least possible that they intended the prohibition to be absolute. However, no court has even attempted to provide a meaning for the enumerated rights that would permit the amendment to be interpreted as an absolute prohibition. This omission is all the more remarkable because the history preceding and surrounding the ratification of the Constitution provides incredibly obvious answers with regard to these meanings.
Because the freedom of speech clause seemingly provides the most obvious reason the First Amendment cannot be interpreted as an absolute, it provides a good starting point for defining freedom of speech in a manner that permits the phrase "Congress shall make no law" to mean just what it says. The criminal case against John Peter Zenger for seditious libel provides just such a definition. Zenger published a newspaper called the New York Weekly Journal in which he was frequently critical of William Cosby, the Governor of New York. In 1735, he was criminally prosecuted for seditious libel because of this criticism. In his opening statement, Zenger’s lawyer, Andrew Hamilton, said:
I am truly very unequal to such an undertaking on many accounts. And you can see I labor under the weight of many years, and am borne down with great infirmities of the body; yet old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my service could be of any use in assisting to quench the flame of prosecutions upon [charges] set on foot by the government to deprive a people of the right of remonstrating of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions.In his closing argument, Zenger’s lawyer asserted that the law in the colonies was not identical to the law in England, and that in the colonies truth was a defense to a charge of seditious libel, unlike the case in England. The judge disagreed, but the jury did not, and Zenger was acquitted. The case was widely publicized, and although it is not unusual for a lawyer to possess an exaggerated sense of self-importance, these further remarks by Hamilton are at least interesting:
The question before the court … is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequences affect every freeman that lives under a British government on the main of America.It should be carefully noted that Zenger’s argument with regard to the extent of the freedom to criticize the government was limited to criticism that was true. As noted previously, the case was widely publicized, and Zenger’s acquittal enjoyed the approval of the majority of the colonists.
At the time the constitution was ratified, the state of the law of seditious libel, as well as the general populace’s understanding of it, was defined by the Zenger case. The result in the Zenger case obviously permitted truthful criticism of American colonial government while the British laws pertaining to seditious libel did not. Certainly this would be regarded as freedom of speech by the American colonists. Given this perception of the law at the time the constitution was ratified, and given that shortly thereafter Congress - then composed of many of the signatories to the Constitution - passed the Sedition Act that contained provisions embodying exactly this perception, it is difficult to see how the framers intended by “the freedom of speech” any meaning other than that illustrated by the Zenger case.
Now, at least with regard to freedom of speech and freedom of the press, it should be easy to see how the framers could have intended the phrase "Congress shall make no law" to mean just that. Defining "freedom of speech" as the right to truthfully criticize the government permits constuing the phrase "Congress shall make no law" exactly literally. Because such a ready definiton of the phrase "freedom of speech" is supplied by the history of the colonial era, and because utilizing this definition enables literal interpretation of the absolute proscription, it is undoubtedly the superior construction. Now that it is seen how the First Amendment was intended to be an absolute, we examine the "freedom of assembly" clause. Note that a participle (such as “respecting,” “prohibiting,” or “abridging”) that specifies the manner in which a Congressional law may not behave was not included in the third clause - "abridging" was plainly intended to be implied. On its face, the language of this clause seems to protect two separate rights - the right of the people to assemble and the right of the people to petition the government for redress of grievances. The use of the conjunctive “and” instead of a phrase such as “for the purpose of” normally compels this conclusion. The comma after the word “assemble” constitutes a clear indication that the framers intended to enumerate two separate rights.
This interpretation is mandated by the consideration of external aids to constitutional construction. As noted above, the external aid to construction to which resort is made most frequently is history. Part of the history that gave rise to the freedom of assembly clause is unquestionably that of Freemasonry. A lot has been written about the precise origin and composition of the Freemasons, and the accounts vary widely. Suffice it to say for now that Freemasonry originated with trade guilds of masons who gradually accepted socially prominent non-workers into their guild for the purpose of prestige and economic benefit. The three operative facts with regard to the Freemasons are: 1) many of the signatories to the United States Constitution were Freemasons; 2) the Freemasons suffered severe persecutions at the hands of both European governments and the Catholic church; and 3) the framers, by including the first clause of the First Amendment, made an eventual Catholic rise to political power in America a possibility.
Of the thirty-nine people who signed the Constitution on behalf of the thirteen states, thirteen of them were Freemasons. Four held the title of Grand Masters with regard to Freemasonry in their respective states. Benjamin Franklin was a Grand Master, as well as George Washington.
In Europe, the Freemasons were far from popular with everyone. Two indications of unpopularity are particularly important with regard to the third independent clause of the First Amendment. First is the 1726 publication of a book entitled The Free Masons’ Accusation and Defense, written by an anonymous author in England. The book, through one of its principal characters, alleged inter alia that the Freemasons have always been “an assembly of troublemakers.” The book angered the Freemasons enough to publish a book in response - A Full Vindication of the Ancient and Honorable Society of Free and Accepted Masons. The second indication of unpopularity involved the Catholic Church and some Catholic countries. In 1738, Pope Clement XII issued a Papal Bull forbidding Catholics from becoming Freemasons. The Papal penalty for doing so was excommunication. Most Catholic sovereigns opted to enforce the Bull. The Bull was enforced immediately by the authorities in Portugal and Italy. In Portugal, the ban was enforced by punishment of death. John Coustos, one victim of the ban who escaped death but not torture and banishment, exiled himself in England. In 1743, he wrote a book entitled The Unparalleled Sufferings of John Coustos, which was widely read due at least partly to the desire of the monarchy to inspire anti-Catholic sentiment. The Spanish monarchy followed suit in 1740. Austria-Hungary was Freemason free by 1743. Germany banned Freemasonry until 1740, when its ruler Fredrick William died and his son, Frederick the Great, acceded to the throne. He was a Freemason. The French monarchy put on a show of disapproval. The Bull remained in full force and effect at the time the Constitution was ratified.
When our founding fathers ratified the Constitution, they provided us with a guarantee that the government would never establish a religion, and also that it would never prohibit a citizen from exercising whatever religion to which he chose to adhere. Although Catholicism was not a major political force in America at the point in time when the Constitution was ratified, the freedom of religion clause left open the possibility that some day it could be. Given that such a large percentage of the signatories to the Constitution were Freemasons, and given the nature of the Papal Bull pertaining to Freemasonry as well as the treatment given some of those who violated it, it is difficult to see how those of our founding fathers who were Freemasons could be unconcerned about this possibility. Ratifying a provision that ensured the future legality of Freemasonry even in the event of a rise to political prominence of Catholicism was intended to allay this concern. At this point, it should be noted that the Bull did not restrict its consequences to only those Freemasons who petitioned their governments for redress. It follows that since the subject of the Bull was not restricted to Freemasonry only when accompanied by petitioning and the ensuing bans imposed by Catholic countries were not imposed only upon Freemasonry when accompanied by petitioning, neither was the concern of our founding fathers who were Freemasons restricted to Freemasonry only when accompanied by petitioning when they promulgated and ratified the First Amendment.
The reason for the inclusion of the last ten words of the amendment is made abundantly clear by the practice of trade unions in England and Colonial America. Numerous organizations of working men existed in both places prior to the ratification of the First Amendment. Much has been written about the nature of the Freemasons, but the following conclusively establishes that they were still concerned with labor issues in the 18th century. In 1879, James Cruikshank (the irony that an author of that name should publish on this subject will soon be apparent) wrote a book entitled Sketch of the Incorporation of Masons. In his sketch, Cruikshank reports that the Freemason Lodge of Atchison’s Haven passed the following resolution on December 27, 1735:
The Company of Atchison’s Haven being mett together, have found Andrew Kinghorn guilty of a most atrocious crime against the whole trade of Freemasonry, and he not submitting himself to the Company for taking his work so cheap that no man could have his bread of it. Therefore in not submitting himself he has excluded himself from the said Company; and therefore the Company doth hereby enact that no man, neither fellow craft nor enter’d prentice after this shall work under the said Andrew Kinghorn, under the penalty of being cut off as well as he. Likewise if any man shall follow the example of the said Andrew Kinghorn in taking work at eight pounds Scots per rood the walls being twenty feet high, and rebates at eighteen pennies Scots per foot, that they shall be cut off in the same manner.This resolution constitutes a mandate for a boycott, and clearly demonstrates that at least one reason for the existence of the Freemasons was to ensure that its members received an adequate wage. While the history of the Freemasons and the fact that many of the framers were Freemasons compels the interpretation given above, it should be noted that Freemasonry was not the only organization having a purpose of procuring adequate wages for its members in 18th century Britain. Cordwainers, hatters, tailors, millwrights, woolcombers, woolstaplers, curriers, printers, shipwrights, brushmakers, and basketmakers all engaged in significant trade union activity in the 1700s. (This list is not intended to be exhaustive.) The most reliable sources of information with regard to the 18th century activity of these (and other) trade unions are the Journals of the House of Commons, the minutes of the Privy Council, the publications of the Record Office, and, in the words of two authors, “the innumerable broadsheet petitions to Parliament.” (Emphasis added.) Although strikes were not unknown during that time, the prevalent practice of that era was for trade unions to address their grievances with their employers to the British government. The British government often intervened, and sometimes appointed a court to hear the union’s (or employer’s) case and resolve the dispute. Not until the late 18th century, when employers, motivated by pecuniary gain made possible by the British Industrial Revolution and supported by Adam Smith’s Wealth of Nations, were able to convince the English government to desist did this practice fall into disfavor.
Due to subsequent events in America in the early 1800s, the existence of unions of cordwainers and hatters are particularly noteworthy. The history of cordwainer organization can be traced back to no later than 1729. In 1667, the journeymen hatters of various shops in London combined to petition the Court of Aldermen. In response, the Court of Aldermen ordered that a piecework list be submitted annually for enactment by the Court. The Court’s reason for the order was so “the journeymen may not by combination or otherwise excessively at their pleasure raise their wages.” In 1696, the hatters combined to effect a work stoppage and were prosecuted for so doing due to their refusal to work at the rates established by the Court of Aldermen. By 1771, they apparently formed a national federation.
Colonial America also had a history of organized labor. Some highlights are as follows. As early as 1648, shoemakers and coopers formed guilds in Boston. In 1661, bakers in New York (then New Amsterdam) successfully combined to violate an ordinance requiring them to adequately supply the town with bread. As a result of the work stoppage, the ordinance was redrafted and the new version increased the sale price of the bread by ten percent. Workmen belonging to the Carpenter’s Company of Philadelphia built the hall in which the Declaration of Independence was signed. In 1785, New York shoemakers engaged in a work stoppage lasting three weeks. In 1786, Philadelphia printers engaged in a work stoppage to protest a wage reduction and managed to win a minimum wage of six dollars per week. In 1778, the printers in New York City organized in order to increase their wages. In 1790, employers in Philadelphia blacklisted members of cabinet and chairmakers unions. Thus, history makes clear that the existence of organizations of working men was well known to the framers when the First Amendment was drafted and ratified.
Working men participated heavily in the fight for independence from Britain. Given this fact, it is only logical to conclude that they reasonably demanded that their economic interests be protected. Moreover, assuming the assertion that our Freemason founding fathers intended the First Amendment to protect their right to exist is accurate, it is difficult to see how it can be maintained that they intended only to protect their organization and not organizations similarly structured and similarly motivated. Furthermore, given the trade union practice of petitioning the government for redress of grievances in England, it is difficult to understand what else our framers might have intended by the last ten words of the First Amendment. Further still, assuming arguendo that they did intend something other than to protect the right of a trade union to exist, since the last ten words of the amendment would immediately bring to mind the prevalent trade union practice of petitioning the British government for redress of grievances, it would seem that they would have felt compelled to somehow have indicated that they didn’t intend to protect trade union activity.
This assertion is also supported by analysis of provisions similar to the third independent clause contained in the state constitutions in existence at the time the United States Constitution was ratified. The provisions of the constitutions of the individual states can be useful guides to arriving at the intent of the framers since it is rightfully presumed that they were aware of the language of the state provisions, as well as the meanings assigned to them. The Freemasons were not organized in all states at the time the Constitution was ratified. Of the states in which the Freemasons were organized, not all contained a provision in its constitution analogous to the third independent clause of the First Amendment to the federal Constitution. However, all of the states whose constitutions did contain an analogous provision also contained organized Freemasonry. Among the original states with constitutions containing provisions similar to that contained in the third independent clause of the federal First Amendment were Pennsylvania and North Carolina. The analogous provision in the constitution of Pennsylvania states:
That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature, for redress of grievances, by address, petition, or remonstrance.The analogous provision in the constitution of North Carolina states:
That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature, for redress of grievances.
The provisions of the state constitutions excerpted above are similar but not identical to the freedom of assembly provision contained in the First Amendment to the federal constitution. Specifically, the right to assemble for the purpose of consulting for common good and the right to assemble for the purpose of instructing representatives are omitted from the federal constitution. It is presumed that our framers were aware of the provisions of the constitutions of the several states. An intent to provide a different meaning can and sometimes should be inferred from the use of different language. Accordingly, it might be argued that our framers intended to provide more limited protection to the right of assembly than did the Pennsylvania and North Carolina legislatures by omitting the purposes “to consult for their common good” and “to instruct their representatives.” This argument is simply untenable. Given the theory behind the republican form of government, if our framers intended to protect any assembly, they must have intended to protect assembly for the purpose of instructing representatives. The failure on the part of the framers to list it explicitly can therefore not be interpreted as intent not to protect. If the failure to explicitly list assembly for the purpose of instructing representatives cannot be construed as intent not to protect, it follows that neither can the failure to explicitly list assembly for the purpose of consulting for common good.
The common law crime of unlawful assembly provides substantial insight into what the framers envisioned by the words “to peaceably assemble.” Recall that several of the individual states had provisions in their respective constitutions analogous to the assembly clause contained in the federal First Amendment. Also recall the presumption that the framers of the federal constitution were aware of the analogous state provisions when they drafted the Bill of Rights. This awareness comprises not only the literal language of the state constitutions, but also how the language was to be interpreted and applied. Any state court application of state law bearing on state constitutional provisions roughly contemporaneous with the ratification of the federal constitution thus is probative of what the framers had in mind when they drafted the Bill of Rights.
The common law crime of unlawful assembly consisted of “the meeting of a number of persons with intent mutually to assist one another in the execution of a common purpose by the use of force or other unlawful intent, and attempting or threatening such use of force, but without actually putting their unlawful design into execution.” It is readily apparent that either the use of force or the threat of the use of force is a necessary element of the offense. It follows that if the element of force was not present, then the assembly was lawful. That state constitutions protected the right of the people to peaceably assemble and state law outlawed only assemblies formed for the execution of a common purpose through either the use of violence or threat thereof paints a fairly clear picture of the meaning assigned by the states to their constitutional guarantee of the right to assemble peaceably. At least with regard to peacefulness, it is difficult to see how the framers of the federal Bill of Rights can be said to have had a different meaning in mind.
Thus, the language of the First Amendment, the history of the constitutional era, analysis of analogous provisions in state constitutions, and analysis of the common law all support the interpretation of the third independent clause given here. The third independent clause is indeed independent. The participle “abridging,” while contained in the second independent clause, was intended to apply to the right of assembly clause in exactly the same manner the first five words - “Congress shall make no law” - were intended to apply to the each of the three independent clause contained in the amendment, even through semi-colons. When drafting the right of assembly clause, the framers adopted the structure of the analogous provisions in state constitutions and intended it to mean the same as did the state legislatures. The reason they failed to list expressly the purposes of consulting for common good and instructing representatives was that they assumed everybody knew those were legitimate reasons to assemble and they felt that first clause of the independent third clause already provided adequate protection to the right. The only question was whether people could assemble for the purpose of petitioning. The words following the comma “and to petition the Government for redress of grievances” were thus intended to make clear that the right to assembly was to be protected even if the purpose of the assembly was to petition, not only if the purpose was to petition.
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