We shouldn’t call them “First Amendment” protests.
By: Brion McClanahan
“First Amendment” protests have popped up around the United States in recent weeks, spurred by the heavy handed State and local policies designed to save us from the Chinese Virus.
You can’t go anywhere, even to the park in some locations, because exercise is not only dangerous, it’s racist and designed to kill old people.
Going to church is a major faux pas. Just ask the predominantly black church goers who were slapped with a $500 fine for sitting in their car for church service in Mississippi.
I have stated too many times to count that Trump’s insistence that he can close down the United States is a flagrant abuse of power and unconstitutional, but States can do this if the moves do not violate the State constitution.
Which brings me to this point: most of them do, though there are several gray areas that allow States to wiggle around constitutional restrictions on what we classify as “First Amendment rights.”
Newsflash: You don’t have “First Amendment rights” and the “First Amendment” is not the issue in Michigan or Mississippi.
You have rights secured by the respective United States and your State constitution. These are not “constitutional rights” but our natural rights codified by the Anglo-American political tradition.
More importantly, by insisting that you have a “First Amendment” right to protest, attend church, or congregate anywhere, you are cutting your nose off to spite your face. This is by default granting a substantial amount of power to the general government because you are accepting the faulty doctrine of incorporation, the greatest legal coup by the Supreme Court in the twentieth century.
Judge Andrew Napolitano argues that we should be citing State violations of civil liberty as “First Amendment” issues, but I have to respectfully disagree. He is correct that under current case law, anyone could challenge these restrictions in federal court, but then don’t whine when your “Second Amendment” rights are circumscribed by the general government or some federal judge tells you that you have to accept transgender bathrooms at your local elementary school.
If we nationalize everything, this is the result.
Every State constitution has “First Amendment” protections, and some are even more stringent than those in the Bill of Rights.
Remember, James Madison wanted the have several amendments in the Bill of Rights apply to the States but his proposal was rejected outright by the Congress. Why? Because the States already had “First Amendment” protections so this was an unnecessary encroachment by the general government on State powers.
States must be forced to adhere to their respective State constitutions, otherwise why even have a State? If the general government can veto any State law at will, what is the point? Are they not just glorified administrative districts without any real powers?
If Americans always appeal to some higher authority, then how do we control that authority?
The States are the only hedge against unconstitutional federal power, but because they can be tyrannical as well, State and local leaders need to be held accountable by being forced to obey their oath to their respective State constitutions.
The next protest in your State should not be a “First Amendment” protest, but a “Article I” protest, because dollars to doughnuts that is where you’ll find the ammunition you need to challenge State state-at-home orders.
And forget flying the U.S. flag. Bring your State flag to the rally. That would be thinking locally and acting locally.
I discuss this issue in Episode 307 of The Brion McClanahan Show,