Who Done It? A Lesson In Constitutional Probity

When the convention that gave birth to the U.S. Constitution had finished its work, the great charter of liberties was left on a table so that the founders of the Republic might, if they wished, sign their names to it.

Ben Franklin had earlier warned his band of revolutionary brothers that if they did not hang together they would of a certainty “hang separately.” And he was not playing with metaphors. Had the agents of King George captured George Washington or any of those who had signed the Declaration of Independence, the father of our country most certainly would have been hanged, even as Nathan Hale, Connecticut’s Hero and one of Mr. Washington’s spies in New York, was hanged without benefit of trial. Mr. Hale, a school teacher, repented that he had but one life to give for his country.

John Hancock’s large and audacious signature, a defy that resounds through the years like a great shout of joy, leaps out of the Declaration of Independence five years before Lord Cornwallis surrendered to Mr. Washington at Yorktown. Mr. Hancock of Boston said he had signed his signature so conspicuously “so that the king would not miss it.”

When the constitution had been completed, the constitutional architects drifted one by one to the table where it lay and, on the understanding that a Bill of Rights was later to be added, claimed ownership of the nation’s foundational charter by signing the document. Since the founding, courageous architects of bills in both state and federal governments have signed their handiwork.

There are no signatures on Raised H.B. No. 5460, tendentiously titled “An act concerning captive audience meetings” -- because this bill, outlawing religious and political speech in the workplace, effectively repeals the First Amendment to the Constitution, which provides that “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.”

The bill is introduced by “LAB”; no names of those sponsoring the legislation are appended to this disgraceful piece of legislation.

The rights enumerated in the First Amendment quite literally hang together; they depend upon each other. Over the years, the antique expression “establishment of religion” has created some difficulties in interpretation, but the rights here specified clearly proscribe the national congress, and by extension state legislatures as well, from constructing bills that prohibit the free exercise of religion, abridge freedom of the press and speech – most especially political speech – as well as rights of assembly and the right of citizens to petition their governments for a redress of grievances.

Raised H.B. No. 5460, approved by the state’s labor and public employees committee, an ideological annex of Connecticut’s employee unions, now awaiting action by the House and Senate, prevents employers from talking about religious or political topics with their employees, the two forms of speech most protected by the First Amendment.

The new state bill, prompted by failed attempts to unionize Yale-New Haven Hospital in 2006, effectively repeals that portion of the National Labor Relations Act (NLRA) that affirms an employer’s right to express an opinion about unionization provided the employer does not threaten reprisal or promise a benefit that coerces employees. The National Labor Relations Board (NLRB) administers the law and rules on specific cases alleging unfair labor practices. The NLRB allows captive audience meetings more than 24 hours before a union election as long as the employer does not commit an unfair labor practice such as, for instance, threatening reprisal for supporting a union. The NLRB may order a new election if it finds either the employer or a union held a captive audience meeting of employees within 24 hours of a union election.

The bill under consideration by the General Assembly is inherently unjust and unconstitutional because it prohibits so called captive audience meetings for employers but not for union organizers and unconstitutionally restricts political and religious speech in the workplace. Given the already stringent impositions imposed by the NLRA, the constitutionally dubious union supported bill is a solution in search of a problem.

In addition to promoting “new and costly litigation,” said Andy Markowski, the state director of the National Federation of Independent Businesses, Connecticut’s leading small business association, portions of the bill are “ambiguous, overly broad and subject to varying interpretations,” a goldmine for lawyers, some of whom may be familiar with constitutional proscriptions.

Any ban on religious and political speech is content based, and the Supreme Court has not been silent on such issues. In a case involving the right of workers to picket, the court reversed on First Amendment grounds a prior court ruling prohibiting the picketing:

“To permit the continued building of our politics [p96] and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

So grave a violation of the Constitution does this menacing bill entail that its legislative architects should be impeached for irreducible stupidity by offering it for serious consideration. But the cowards have taken care to hide themselves from public censure, and we do not know under what rock the slithering idiots may be found.

The Endorsements

There have been very few unexpected endorsements from Connecticut’s media, and the almost universal endorsements of Attorney General Richard Blumenthal by the state’s opinion makers were entirely predictable. The status quo media likes status quo candidates.

The status quo candidate will always stress his experience over that of his opponent who, of course, may have little direct experience in politics. Such was the case with Ann Brickley, the Republican candidate for the U.S. Senate running against Sen. John Larson, a Beltway familiar. The proposition that voters should choose experience in office over inexperience is, of course, fatal to good government. The very existence of an election process argues against cradle to grave politicians. But the settled opinion among many editorial writers in the state is that political experience should be determinative.

For this reason it was a little unsettling, in a positive sense, to read the Register Citizen’s endorsement of Brickley over Larson. The paper reasoned that Mr. Larson had been swallowed up by the Washington whale. His attention, which should have been directed toward his failing state, the paper argued, had been too often directed towards Beltway status.

“We are in the midst of a huge national backlash against Pelosi’s management of taxing and spending policies that affect the economy,” the paper said, “and against the federal health care reform bill that Pelosi and Larson shepherded through Congress… We feel she [Brickley] would bring the 1st District seat back around to being about Connecticut’s interests, after years of having a congressman who long ago got caught up as a key lieutenant in an inside-the-Beltway partisan war that has very little to do with what is good for Torrington, Winsted, New Hartford and our state.”

The paper also noted that Brickley has devoted her efforts in private enterprise to helping companies become more prosperous, not a bad resume line at a time when many Connecticut companies have for years been moving to greener pastures elsewhere. Endorsements of this kind, however, are the exception to the rule.

Mr. Blumenthal has no direct experience as a U.S. Senator, but he has had considerable practice in stroking the media, which had not looked closely at some of the cases he prosecuted in Connecticut. Mr. Blumenthal has been taken mostly at his word, as reflected in those ubiquitous press releases that, for 20 years, have rained down on Connecticut’s media like confetti at a wedding. The indespensible critical attitude one expects in a healthy adversarial media never showed up at the wedding. Many people suspect this is the case because Mr. Blumenthal’s world view, iterated endlessly in his ideologically partisan press releases, dovetails with that of Connecticut’s left of center media.

Mr. Blumenthal’s harrying of businesses, sometimes justified, has been a boon to unions and editorial writers advocating left of center views. It simply is not true that Mr. Blumenthal has directed the bulk of his fire at Big Business. It is not true that his office is capable of representing adequately both the interests of state agencies -- a statutory requirement he labors under, except in those cases in which he declines to do so for ideological reasons – AND the interests of whistleblowers employed in the agencies he is charged with representing. The Dickman case throws this discordant representation into bold relief, a point that should have been an issue in Mr. Blumenthal’s senatorial campaign. It wasn’t.

Throughout his campaign, Mr. Blumenthal continued to pelt the media with attorney general releases touting his own moral rectitude. In one of those releases, he advised that he would continue to harry an ADVERTISER – unless the advertiser withdrew from its site notices that might have been placed by prostitutes disguised as masseuses, an obvious First Amendment issue Mr. Blumenthal was successful in forcing the California company to adjust its advertising in such a way that it would become more difficult for police to monitor prostitution activity. Significantly, Mr. Blumenthal reached all the way to California in his effort, leaving similar Connecticut advertisers free to ply their ads unmolested.

The suppression of First Amendment rights by an attorney general not authorized by statute to engage in criminal cases should have alarmed the state’s media, if only because all media has a dog in every First Amendment legal tousle. It didn’t. And Mr. Blumenthal’s assault on the First Amendment succeeded, in large part, because Connecticut’s timid pro-Blumenthal media was unwilling to defend an issue that had been a tar baby since the days of Chautauqua and Temperance societies.

Mr. Blumenthal carefully chooses his targets to comport with liberal orthodoxy. His attorney’s general media releases, far more numerous over a 20 year period than his competitor’s campaign ad brochures, were sent out while Mr. Blumenthal was running for the U.S. Senate. Indeed, his role as attorney general was, oddly, the central pillar of his senatorial campaign. Mr. Blumenthal had chosen his marks well. His successor, possibly George Jepsen, the preferred candidate of the state’s media, will not be able to resist the temptation to follow in his predecessors footsteps. Jepsen, politically and emotionally attached to unions and the traditional Democratic Party agenda, has said he would do so, though in a lower key. The attorney general office will be impervious to media criticism that never arrives at its doorstep.

And the absence of such criticism certainly was no bar to media endorsements of Mr. Blumenthal.