‘But, Nothing’

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You may conclude from the recent brouhaha that the New YorkTimes’s publishing the details of a follow-the-money war plan by the Treasury Department was the worst breach of security since Benedict Arnold sold West Point to the Redcoats. You may also have thought that when Chairman Peter King of the House Homeland Security Committee called a whole newspaper “treasonous,” and when the House of Representatives voted 227-183 to suggest that the New York Times was a fellow traveler to Al Qaeda, that it was time to line up for tickets to the show trial. Or you might have concluded that when Bill Keller, the executive editor of the Times, asserted that “since September 11, 2001, our government has launched broad and secret anti-terror monitoring programs,” it was time to search Google for a meeting of the underground.

None of the above conclusions is supported by facts; and the nation remains as secure today as it was on the day the ratified Constitution birthed it. In truth, this present bellyaching — what is called the freedom of the press versus national security — was fully anticipated by the first House of Representatives and the genius of James Madison.

It was the steamy summer of 1789 in the nation’s capital, New York City. Impatient since March to advance his plan to amend the Constitution to guarantee individual liberty, Virginia’s dynamo Madison rose on Monday June 8 in Federal Hall at Nassau and Wall Streets to address 50 fellow members of the House of Representatives. Madison knew there was sophisticated opposition to a so-called bill of rights. The anti-Federalists in the room wanted to undermine the whole government with a second constitutional convention. Several of the Federalists who had fought to ratify the Constitution the summer before objected to Madison’s haste to fuss with what hadn’t yet been tested.

Soft-spoken Madison took control of the debate for hours: “the people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho’ some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.”

Madison offered nine changes to the Constitution, the fourth of which contained what Madison considered the “most valuable amendment on the whole list.” “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

It would take three more years of drafts, debates, votes, and ratifications for Madison’s passion for amendments to travel from the Congress to the states and return to George Washington’s desk in New York. On March 1, 1792, Secretary of State Jefferson announced the Constitution amended with the Bill of Rights, the first of which reads unambiguously.”Congress 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.” (For the whole tale of the triumph, see Richard Labunski’s new “James Madison and the Struggle for the Bill of Rights.”)

To the credit of the intervening 214 years of presidents, newspapers, congresses, scoundrels, courts and rebels, the beginning of the story is the end of the story: “Congress shall make no law….”

Associate Justice Hugo Black, a 20th-century champion of the absolutism of the First Amendment who would have done well beside Madison in Federal Hall, coined the quip, “No law means no law.” This is as impossible to refute today as it was when Justice Black wrote the majority opinion in the Pentagon Papers case, New York Times Co. v. The United States (1971), choosing freedom of the press over the national security concerns of the Executive branch.

Considering again the blarney of the overheated 108th Congress, of the glib King and too-much-protesting Keller, I find gravity in a 1960 James Madison Lecture by Hugo Black. “The First Amendment is the heart of the Bill of Rights. The Framers balanced its freedoms of religion, speech, press, assembly and petition against the needs of a powerful central government, and decided that in those freedoms lies the nation’s only true security. They were not afraid for men to be free.”

“But, Mr. Justice,” the quibblers of First Amendment absolutism are said to have routinely protested. Hugo Black’s reply was always the same: “But, nothing.”

Mr. Batchelor is host of “The John Batchelor Show” on the ABC radio network.The show airs in New York on 770 AM from 10 p.m. to 1 a.m.


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