Compelling law schools to host military recruitment on penalty of losing federal funding is acceptable, the Court ruled, because it is not like forcing conservative parade organizers to admit a homosexual activist group to the parade (ruled unconstitutional in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 1995); nor is it like a statute requiring a newspaper to print a politician's reply to criticism (ruled unconstitutional in Miami Herald Publishing Co. v. Tornillo, 1974).
The Solomon Amendment is acceptable, the Court ruled, because pushing law schools to admit military recruiters does not force law schools to engage in "expressive conduct." The Solomon Amendment is not like anti-flag-burning statutes (ruled unconstitutional in Texas v. Johnson, 1989). Nor does Solomon violate freedom of expressive conduct -- allowing military recruitment is not like forcing the Boy Scouts to admit gay scoutmasters (ruled unconstitutional in Boy Scouts of America v. Dale, 2000).
Why do I bother reciting this litany of incomprehensible gibberish and hairsbreadth distinctions? Because this is what constitutional law has become. Yes, the Court decided rightly in this case. But they decided rightly for the wrong reasons. It would be blind at best and unprincipled at worst to accept yet another Court decision twisting and turning the words of the Framers simply because the outcome is correct. This is what happens if you hand over a relatively simple document to a bunch of Ivy League-educated lawyers: It becomes gobbledygook.
The First Amendment is not very mysterious.
It is all of 45 words, and the portion that is relevant here -- "Congress shall make no law … abridging the freedom of speech" -- is 10 words long.
But apparently, this tiny phrase, "freedom of speech," countenances thousands of pages of legal opinion distinguishing Boy Scouts from Junior Chambers of Commerce and flag burning from cross burning. Meanwhile, fellow lawyers in Congress sit by, patiently awaiting edicts from on high, so that they can rewrite their legislation accordingly. It now seems that John Adams was deadly serious when he remarked, "I have come to the conclusion that one useless man is a disgrace, two men are called a Law Firm, and three or more are called a Congress." Nine are called a Supreme Court.
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