Daniel Pollitt, a law professor at the University of North Carolina teaches that the living Constitution is also an enlarging document -- thereby protecting those among us who become marginal.

When a bitter debate followed a decision last January in New York by federal district Judge Leonard Sand that the Transit Authority could not ban begging in New York City's subways, Pollitt, in a letter to The New York Times, brought Charles Lamb into the fray.

When beggars were excluded from the streets of London in the 1820s, Lamb wrote -- in his "Essays of Elia" -- that beggars, their hands or cups extended, were "the standing morals, the spiritual sermons, the salutary checks and pauses to the high and rushing tide of citizenry."

Sand -- in what was the first federal court decision that begging is a form of free speech -- had made a similar point. Seeing a beggar "cannot but remind the passerby that people in the city live in poverty and often lack the essentials for survival ... while often disturbing and sometimes alarmingly graphic, begging is unmistakably informative and persuasive speech."

There was a split among renowned First Amendment advocates. Floyd Abrams, who represented the Transit Authority in the case,said that Judge Sand had stretched "the First Amendment beyond its limits." Columbia Law School Professor Vincent Blasi, on the other hand, observed that begging is "inevitably a kind of commentary about the world, the distribution of wealth, the attitude of society toward poor people."

Judge Sand and Charles Lamb were overruled by the Second Circuit Court of Appeals. The majority scoffed at the notion that begging deserves constitutional protection. There is only one message: "Beggars want to exact money from those whom they accost."

In dissent, Judge Thomas Meskill said: "I simply fail to see why the {Transit Authority} should be able to permit organized charities, but not beggars, to rattle a cup full of change as one passes by."

In his original decision, Judge Sand had commented on this disparity of free speechrights between beggars and organized charities. He asked rhetorically whether the self-interested plea of a beggar is any less a "charitable solicitation" than a request from a solicitor on behalf of the March of Dimes.

At the end of November, the Supreme Court of the United States ended the legal dimension of the controversy. The Court refused to review the case, Young v. New York, which had been brought on behalf of two homeless men and a homeless woman by the Legal Action Center for the Homeless. If any of the justices had wanted to review the case, they did not feel strongly enough to make their dissents public.

A spokesperson for the Transit Authority -- reminding me of the deeply sympathetic tears of Lewis Carroll's Walrus as he ate the oysters who had been walking with him on the beach -- told Newsday, "We can't be happy about it. It's really a victory over poor and unfortunate people."

There were no apparent shadows dimming Floyd Abrams' sense of triumph. The Supreme Court's refusal to hear the beggars, he said, gives government officials a "powerful new weapon" against the panhandlers. It was as if hordes of crack dealers had been routed.

Much has been made during this debate about the pressing need for civility in the subways. Overlooked was the continued insistence of the Legal Action Center for the Homeless that this case was only about passive begging. Judge Sand had made clear that already existing laws prevent abusive conduct, including "belligerent or threatening language."

Sand, moreover, had told the Transit Authority that it could prohibit begging "on moving vehicles, areas adjacent to token or ticket booths, on narrow platforms or at the head or foot of escalators or stairways."

He was concerned with the free speech rights of the beggar who simply held out his cup. "The true test of one's commitment to constitutional principles," said the judge, "is the extent to which recognition is given to the rights of those in our midst who are the least affluent, least powerful and least welcome."

Well, that's a nice sentiment for the Christmas season, but -- said the New York Post in an editorial -- if the beggars can be removed from the subways, "why should it be less so of city streets?"

Where I live, in New York, there used to be a women's prison in my neighborhood. The women, making us aware of their existence, would yell down into the streets at relatives and friends. The prison is gone, the women have been moved far away and my neighbors are much relieved.