During his show on Thursday, September 16, 2010, Jon Stewart publicly announced a planned rally in D.C. on the National Mall.  Jon Stewart’s rally comes in direct response to Glenn Beck’s and former Republican VP candidate Sarah Palin’s “Restoring Honor” rally held on the 47th anniversary of Dr. Martin Luther King Jr.’s “I Have a Dream Speech.”  Stewart’s “Rally to Restore Sanity” is the very essence behind the Living Constitution approach to constitutional interpretation.  I can’t conceive of a better illustration to show the need to account for shifting societal norms when construing the very document that governs our daily lives in America.  In an early 20th century case the U.S. Supreme Court was presented the question of whether motion pictures, as a form of entertainment, are afforded freedom of speech protection under the First Amendment.  In writing for the majority, Justice McKenna held:

It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion.

Mutual Film Corp. v. Industrial Com. of Ohio, 236 U.S. 230, 244 (1915)

With the Temperance Movement  responsible for “The Noble Experiment” of Prohibition four years later in full swing the result is not shocking.  However, after America relegated Prohibition to the history books and film had become more commonplace, the Court took a radically different approach in 1952.  In Joseph Burstyn, Inc. v. Wilson, the Court held “expressions by means of motion pictures” are afforded freedom of speech protection under the First Amendment.  If the text of the Constitution had not changed, what other justification exists for such a departure?

The answer to this question surely lies in some societal form of self-preservation.  While as a Country we must be vigilant in upholding the framework laid for our American Democratic Experiment, we cannot do so at the expense of stifling progress.  Under this very context does the true brilliance of our Constitutional Framers come to light.  They crafted a blueprint for a government that is both burly enough to stand the test of time and nimble enough to adapt as conditions require.  This permits the government to run such Noble Experiments as changing societal norms demand while ensuring the preservation of the overarching American Democratic Experiment.  Thus, it is certainly feasible to remain true to the spirit of the Constitutional Framers, while permitting flexibility to meet contemporary societal norms.

As the “Rally to Restore Sanity” demonstrates modern entertainment undoubtedly serves as both the “organs of public opinion” and in some cases as “part of the press of the country.”  In a recent poll by Time magazine, as unscientific as it may be, Jon Stewart was voted “America’s most trusted newscaster.”  The next highest contender was the traditional news anchor, NBC’s Brian Williams, with 29% of the vote compared to Stewart’s 44%.  Even the Daily Show spin-off Colbert Report enjoys a similar impact on public opinion in the political realm.  Political candidates often experience what has been coined “The Colbert Bump” where the candidates experience a temporary boost in their races for office after appearing on the Colbert Report.  This phenomenon was even scientifically verified by UCSD political scientist James Fowler.

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