An absolutely fascinating case was decided by the Supreme Court this week. This case demonstrates why I find law such an intriguing subject.

A fellow named Jeffrey Hefferan was demoted from his job as a detective in the Paterson, NJ police department after he was spotted picking up a political sign for an opponent of the sitting mayor. Said mayor was friendly with the police chief.

It’s clear this action is unconstitutional. You cannot punish an employee for expressing a political preference for one candidate over another. However, believe it or not, that’s not actually what happened. Hefferan was picking up the sign for his mother. He was not expressing a political opinion as is his First Amendment right. He was demoted not for political speech but by mistake. Therefore being demoted wasn’t unconstitutional, or at least that’s the argument the city of Paterson made before the Supreme Court.

The court ruled 6 – 2 in favor of Hefferan.

I agree with the court and let me explain why. The two justices who dissented, Justice Thomas and Justice Alito, agree with the city of Paterson because Hefferan wasn’t demoted for his protected First Amendment rights, he was demoted by people mistakenly believing he was expressing said rights. This is an insistence upon a Strict Constructionism interpretation of the Constitution. If we are to take the Constitution for its literal meaning instead of its intent then Thomas and Alito are correct in this case.

I argue that the point of a law is its intent. The question Strict Constructionists then demand is: Who determines intent?

Judges, that’s who. That’s the whole point. The written word is always going to fall short of the intent of the law. I certainly don’t like judges who interpret in a manner that expands the Constitution beyond what I consider reasonable but I cannot indulge in the intellectual deceit that there is no such thing as interpretation. Every case is based on interpretation of ambiguous words. Alito and Thomas rely on volumes of interpretation of the First Amendment. Is a political sign actually Freedom of Speech? Speech literally is the spoken word, not the written word. It has long been interpreted to mean the written word but that’s not the literal meaning of the Free Speech section of the First Amendment.

The First Amendment reads thus: 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,…

Congress is not passing a law of any kind in this case. A local law enforcement agent demoted a subordinate. A Strict Constructionist must agree that any government official can fire anyone for their political beliefs at any time. By this logic a state could pass a law making being a Democrat, Republican, or Libertarian illegal. They could imprison those who dissent. After all it is not Congress passing said laws.

We must always consider intent, even if that interpretation is wrong at times.

It we insist on Strict Constructionism the Constitution becomes a worthless piece of paper.

Of course Hefferan was demoted for his political opinions. His political opinions were mistakenly identified, that’s true, but the underlying reason he was demoted remains clear and unmistakable.

The Constitution guarantees that we can speak our political minds and not be punished by the government for so doing, even if the wording does not explicitly express such. Hefferan works for the government. He cannot be demoted for either expressing his political opinion or by someone who mistakenly thinks he is expressing his political opinion. They are one in the same.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
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