George,

I want to thank Josh Wheeler for his response (February 5th) to my comments of February 4th (which were a response to his comments of January 22). I might point out that this dialogue could not be taking place if it were not for George Loper's site where comments cannot be
erased. Indeed, George archives all comments in a way that greatly facilitates discussions such as this.

First of all, I want to make clear that I am not for some staticmonument to free speech. I was not arguing against a chalkboard, just erasers.

In his most recent comments (February 5th), Josh Wheeler makes clear that he has two reasons for having a chalkboard with erasers. 1) It "accurately reflects the limits of First Amendment protection" and 2) it would be an effective way to promote "tolerance for the expression of others". And, we "decided against a monument that created a forum that 'required' private citizens to tolerate the expression of others". These two purposes are logically inconsistent.

There would be no need for the First Amendment if GOVERNMENTS were tolerant of all expression or could learn to be tolerant. The purpose of the First Amendment is to "require" government to protect free speech. Wouldn't the logical extension of this purpose be to "require" citizens to do the same (not censor)?

Let us step back from all this nuanced and complex colloquy and look at the big picture. If one wants a monument to the First Amendment that accurately reflects the purpose of the First Amendment, I would propose a chalkboard (sans erasers) with some kind of shield over it. The chalkboard would be a living monument to free, uncensored expression and the shield would represent the First Amendment.

After all, how did the First Amendment come into being and what purpose has it served? The original Constitution did not contain a Bill of Rights since most of the Framers thought that the new national government had no powers to abridge those rights. Rights, such a free speech, were ALREADY guaranteed by State Constitutions and, as Hamilton said in Federalist No. 84: "For why declare that things shall not be done which there is no power to do?". Nevertheless, many political leaders of the day were concerned about protecting basic rights and saw to it that the Bill of Rights were adopted by the First Congress.

The First Amendment states: "Congress shall make no law ... abridging the freedom of speech ..." This is a protection of an already existing right of free speech from a overreaching national government. It does not grant the right to free speech. The Constitution of the State of Virginia grants this right for Virginians. Section 12 of the Virginia Constitution says:

"That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic government; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right ..."

This is where CITIZENS of Virginia are granted the right of free speech, and this is where the right to free expression on a City chalkboard should come from. If citizens of Virginia are granted the right of free speech by their State Constitution, how can anyone legally deny them that right by censoring (erasing) them?

The First Amendment is only a shield to protect a fundamental right that existed before it was enacted -- a right that can be abridged by nobody.

David RePass (electronic mail, February 11, 2002)