there are some people who are writing on the subject who do go into the Constitution with the intent to read it, understand it, and respect itmost modern constitutional law casebooks largely ignore the Constitution itself—the document that is ostensibly the subject of study and the source of “constitutional law.”
. . . as I know that you for one do.The question is, on which topics does Justice Kennedy read the Constitution, and on which does he not do so? How coherent is he? It seems that we are always on the ragged edge of having a majority which consistently does so - and likewise of having a majority which consistently does not do so. But with Roberts for Rhenquist we held our own and with Alito for O'Connor the Constitution picked up half a vote.
My college studies were in engineering, not law, and the only law course I have had was entitled "Cases on Contracts." The instructor of which asserted that engineers typically were capable of understanding law. Law, perhaps - but are "constitutional law casebooks [which] largely ignore the Constitution itself" actually law? Not by my understanding of the word. Judicial lawlessness, more like.
But, in effect, I have been studying the First Amendment for many years. Ever since the Carter Administration, the time frame in which I read Reed Irvine's "Accuracy In Media" ("AIM") report for a couple of years, and came out convinced that "the media" were in fact "biased." But I dropped my subscription after that - I was convinced, and further examples proving the same thing that I already agreed with quickly became "a twice-told tale." The issue for me since then has not been "whether" but why. I have not, as some are wont to do, resorted readily and comfortably into a whine about the First Amendment protections of those with whom I have disagreed. I respect the Constitution and its authors far too much for that. I have been determined that the First Amendment was fine as is - provided that we understand its principles, and that we understand the facts that we are bringing to it.
It seems to me that we have, memory of living man not to the contrary, been led to misunderstand the facts of "the press" in our milieu. First, "the press" does not refer specifically to journalism. Book printers, after all, are under First Amendment protection as well. So, right there, we know that journalism is cooking the books when it calls itself "the press." It seems to me that the most satisfactory generalization of "the press" is to say that those who have a press spend money for the press and the ink and paper - and are free to attempt to propagate their opinions in that way. Furthermore, the freedom of religion clauses exclude the possibility of government defining truth or objectivity for the press. I understand "freedom of the press" to be the freedom of the people (individually or in voluntary association) to spend their own money in any medium, whether or not ink and paper are involved to promote the ideas they want others to accept.
Not only is journalism not the sum of "the press," journalism as we have known it since the Civil War era scarcely even existed in the founding era when the First Amendment was written and ratified. Because although there were of course "newspapers" in the founding era, the printers thereof did not in general have a systematic source of "news" to which the general public was, in principle, not privy. That awaited the telegraph and the 1848 founding of the Associated Press. Consequently the "newspapers" of the founding era were not in the business of selling "news" as the extremely perishable commodity which we associate with journalism. And not being in that business, newspapers typically were weeklies rather than dailies - and some had no fixed deadline and just went to press when the printer was good and ready. Newspapers typically were intimately associated in the reader's mind with what we would now call the "editorial page." Hamilton sponsored a paper to attack Jefferson - and to defend against the attacks of the paper Jefferson sponsored for the reciprocal purpose. Newspapers were independent of each other, and openly associated with particular political perspectives/parties.
In short "newspapers" of the founding era were more like our modern biweekly political magazines than like The New York Times of today. The newspapers (and broadcast journalists) of today are linked, even made dependent on each other, through the medium of the Associated Press. Being in the business of selling news, much of which originates with reporters associated with other newspapers, the newspaper as we have known it all our lives has been a promoter of "journalism" much more than it is of its own stated "editorial" policy. And the fundamental of journalism - that today's news is important and yesterday's news is "yesterday's news" - is inherently radical. If paying attention to the news is important, and if today's news is always more dramatic than yesterday's news, that implies that the people in charge of things must be letting things get out of control. Journalism is always "the critic," not Teddy Roosevelt's "man who is actually in the arena."
But it is not true that that makes journalism independent of politics. To the contrary, politicians can position themselves as critics, too - and, in doing so, align themselves with journalism and establish themselves in symbiosis with journalism. In fact, certain politicians do it all the time. In so doing they function somewhat like journalists, but they never take on that title - that would be bad form, bad PR. Journalists have far more subtle ways of discussing the alignment of politicians. Journalists apply positive labels to politicians who operate in symbiosis with themselves. Labels such as "progressive" and "liberal." Such politicians can, without changing their political philosophy at all, get hired as journalists - and, if so, other journalists accord them the label "objective" as a matter of course. The etymology of the word "liberal" is a case study in media bias. According to William Safire,
In the original sense the word described those of the emerging middle classes in France and Great Britain who wanted to throw off the rules the dominant aristocracy had made to cement its own control.According to the preface Hayek wrote for the 1956 edition of The Road to Serfdom:During the 1920s the meaning of the word changed to describe those who believed a certain amount of governmental action was necessary to protect the people's "real" freedoms as opposed to their purely legal - and not necessarily existent - freedoms.
This philosophical about-face led former New York governor Thomas Dewey to say, after using the original definition, "Two hundred years later, the transmutation of the word, as the alchemist would say, has become one of the wonders of our time."
The fact that this book was originally written with only the British public in mind does not appear to have seriously affected its intelligibility for the American reader. But there is one point of phraseology which I ought to explain here to forestall any misunderstanding. I use throughout the term "liberal" in the original nineteenth-century sense in which it is still current in Britain. In current American usage it often means very nearly the opposite of this. It has been part of the camouflage of leftist movements in this country, helped by the muddleheadedness of many who really believe in liberty, that "liberal" has come to mean the advocacy of almost every kind of government control. I am still puzzled why those in the United States who truly believe in liberty should not only have allowed the left to appropriate this almost indispensable term but should even have assisted by beginning to use it themselves as a term of opprobrium.Hayek (b. 1899) actually learned English in America in 1923-24 (which skill enabled him, an Austrian, to become a professor in England before WWII), and yet he did not note the transformation of the word "liberal" which was an accomplished fact by the Roosevelt Administration.
English 101 from time immemorial.....who, what, why, where and when as close to the top of the article or posting as possible.
That's what Big Journalism would like you to think. It's not "from time immemorial," it's from the Civil War era. Journalism as we know it scarcely existed before the advent (1848) of the Associated Press. In the Founding Era the newspapers were all a lot like the ones sponsored by Hamilton and Jefferson in which they waged partisan battles with each other. Papers were about the perspective of their printers. They were usually weeklies, and some didn't even have deadlines at all.But that doesn't mean that modern papers are less tendentious than those of the antebellum era; it means that modern newspapers have a lot of their tendentiousness hiding in plain sight. The planted axiom of journalism is that there is always a reason to meet the deadline. And there always is - but that reason has to do not with virtue or public good but rather the mere commercial interest of the printer.
Likewise, there is a reason for the position journalists take that all journalists are objective. That reason has nothing to do with the actual virtue of the least virtuous journalist - and everything to do with the fact that, through the mediation of the Associated Press, all "objective" journalists are in cahoots. In contradistinction to the newspaper of the founding era, the business model of the modern newspaper requires the printing of fresh news from a source to which the public is not privy - the AP. Thus, the business model of the modern newspaper requires that the public place its trust not merely in that newspaper's own reporters but in reporters working for other Associated Press newspapers nationwide.
O'Reilly Live Thread: Taking The AP To the Woodshed Over Tony Snow Insult
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