Republicans in Congress have for many years argued it is reprehensible for taxpayer dollars to be used to fund ography. Congressional Democrats have responded that a denial of taxpayer dollars to artists, because their work may be subjectively perceived by some as being ographic or otherwise objectionable, would be censorship and violate these artists’ First Amendment rights.

The truth is, these carefully orchestrated strawman arguments cleverly leave in tact a continued misappropriation of federal revenue, and avoid a discussion of the 1st Amendment rights of those forced by folks-in-government to fund the personal expressions of others, and the subjugation of their constitutional guarantees!
 

In 1998, the U. S. Supreme Court ruled on the constitutionality of legislation requiring the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." [see National Endowment for the Arts v. Finley http://www.csulb.edu/~jvancamp/doc28.html

Karen Finley became well known for a public performance in which she stripped to her and covered herself with chocolate syrup. The case cited involved an alleged violation of Finley’s freedom of expression rights  with regard to a denial of a NEA grant of approximately $7,000. The Court found "respect for the diverse beliefs and values of the American public", as a test in rejecting such a grant, did not violate the 1st Amendment rights of Karen Finley. In so ruling, the Court gave its tacit approval that such grants are lawful expenditures of Congress. But are they?

To put this matter into perspective, it is essential to first understand a fundamental principle of constitutional law: "Perhaps the most basic of all the rules of constitutional construction (since it is the rule which all other rules may be said to be designed to implement) is the principle that a constitution is to be given the effect and meaning contemplated by its framers and by the people who adopted it..." [ see Vol 16 American Jurisprudence (constitutional law) Sec. 91].[1]

So, what was the "intent" of the Framers and Ratifiers with regard to Congress’ role in the promotion of art?  Upon researching the record of the Constitutional Convention of 1787, we find Delegate Charles Pickney, on August 18th, proposed a broad power "To establish seminaries for the promotion of literature and the arts and sciences", but this proposal was rejected by the Convention in favor of a limited grant of power expressed in Article 1, Section 8, Cl.8, of the proposed constitution. The limited power, later agreed upon by ratification, authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Contrary to the Courts’ suggestion that federally appropriated NEA grants are constitutional if content does not offended "...general standards of decency..." etc., the historical record clearly shows the Framers and Ratifiers intentionally rejected a power being delegated to Congress to finance the arts, and, this irrefutable fact was eloquently re-affirmed by Representative John Page while speaking before The House of Representatives on February 7th, 1792, to wit: "The framers of the Constitution guarded so much against a possibility of such partial preferences as might be given, if Congress had the right to grant them, that, even to encourage learning and useful arts, the granting of patents is the extent of their power. . . ".

This brings us to the Courts’ actual ruling which declares it was not a violation of Finley’s First Amendment rights for the NEA to reject her grant if such funding were to be used in a manner as would offend a "respect for the diverse beliefs and values of the American public". But the First Amendment is silent in regard to "offensive speech", and unequivocally declares: "Congress shall make no law...abridging... freedom of speech...", : which is exactly what takes place when the force of government is used to finance a selected individual’s personal expressions in a more forceful fashion than the expressions of those taxed to fund the personal expressions of others!

Surely, the allowing of such a grant, regardless of content as applied in the Finley case, would be a misappropriation of federal Treasury revenue, would conflict with the well established tenet of "equal law"; would be an abridgement of freedom of expression in that it would bolster one Taxpayers’ expressions over other Taxpayers expressions using the force of government; and would, if allowed, as warned by the above mentioned Representative John Page [here paraphrasing another part of his statement before the House],  allow Congress to: elevate selected individuals with views favorable to government above the general public; be inattentive to men unfriendly to the views of Government; reward the ingenuity of the citizens of one State, and neglect a much greater genius of another! This, the Court, has agreed to ignore.

In conclusion, the real debate is not one concerning decent or indecent art, it is a debate concerning the very foundation of our constitutionally limited government; the exercise of power not authorized by the Constitution; the misappropriation of Federal Treasury money; the willingness of Congress to abridge freedom of speech prohibited by the Constitution; and, the Supreme Court aiding and abetting in this tyrannical practice!

Justice O'CONNOR, delivered the opinion of the Court in the Finely case in which, REHNQUIST, STEVENS, KENNEDY, and BREYER, joined. GINSBURG, joined in part. SCALIA, filed an opinion concurring in the judgment in which THOMAS joined. SOUTER, gave a dissenting opinion. [2]

John William Kurowski

Founder

American Constitutional Research Service