Balkinization  

Sunday, November 12, 2006

Trading the First Amendment?

Mark Graber

Michael Kinsley last week in the New York Times quickly dismissed Sandy Levinson’s call for a new constitutional convention on grounds that, while we might get rid of an undemocratic Senate, the risk was too great that we would also get rid of the democratic First Amendment. While I have my own concerns about a convention, mostly dealing with the importance of stable electoral rules, the constitutional issues Kinsley raised seemed worthy of far more serious consideration than they were given.

Is there any serious possibility that a new constitutional convention would omit explicit constitutional protection for freedom of speech? Such constitutional protections are routinely found in new constitutions throughout the world. No good reason exists for thinking that Americans are less concerned in the abstract with expression rights than anyone else. If the framers in 1787 could not get away with a constitution that did not include an enumerated freedom of speech right, why would anyone think framers in 2006 would have more leeway on that subject. Of course, a revised constitution might include provisions making clear that flag burning, certain forms of hard core pornography, or, perhaps, hate speech were no longer constitutionally protected. Still, the claim that a more democratic Senate is not worth the risk of punishing flag burners seems quite different that the claim that a more democratic Senate is not worth the risk of losing the freedom of speech entirely.

Getting rid of the freedom of speech is also likely to be quite difficult. Imagine the new constitution has no enumerated speech right. If that constitution has an enumerated due process right, a right which under contemporary constitutional law encompasses a free speech right, that may be just as good. Indeed, much doctrine suggests that one can generate the same degree of free speech protection Americans presently enjoy from the privileges and immunities clause of the Fourteenth Amendment and the abolition of slavery in the Thirteenth Amendment (restrictions on speech being a badge and incident of slavery). There is also the guarantee clause and the citizenship clause of the Fourteenth Amendment as possible sources for speech rights. In short, as this exercise suggests, interested justices and other constitutional interpreters are likely to find a source for constitutional free speech rights in almost any plausible constitution for the United States that might be written at present. If, for the past 30 years, we have not needed a textual guarantee explicitly declaring "abortion is constitutional protected," then we may not need an explicit textual guarantee declaring "free speech is protected."

Of course, a good possibility exists that we might not have justices and other officials interested in interpreting the new constitution as protecting free speech rights. History suggests, however, that such constitutional interpreters tolerate a good deal of repression even when interpreting a constitution in which free speech rights are enumerated. Consider, for example, the Alien and Sedition Acts, slave state bans on abolitionist speech, Lincoln’s willingness to imprison Copperheads, the assaults on radical union groups at the turn of the twentieth century, censorship during World War I, and the McCarthy Era. All of these occurred despite the First Amendment (or analogous state constitutional provisions). A good case can be made that explicit constitutional protections for free speech have had some influence only in the past half-century (and, as noted above, good reason exists for thinking the constitutional interpreters who protected speech would have done so on other grounds if they lacked a specific free speech clause). Consider, similarly, that Western democracies that lack or lacked explicit constitutional protections for speech have been about as libertarian or repressive as the United States. Significant differences exist, but my sense is that they exist at the margins. Again, the trade-off is different if we risk the loss of free speech for a more democratic Senate or merely risk living under English standards of free speech for a more democratic Senate. Text may matter. Indeed, I think text probably does matter. But the way in which text matters, the above paragraphs suggest, is far more complicated that the simple assumption that free speech is protected if and only if a free speech right is constitutionally enumerated.

Finally, one might wonder whether the left for the foreseeable future should be willing to risk all and everything for a first amendment that is more likely to protect big campaign donors, abortion protestors, commercial enterprises, and religious groups seeking public funds than leftists increasingly shut out of a shrinking public sphere. Nearly 80 years ago, Brandeis suggested that the due process clause of the Fourteenth Amendment ought to be repealed. Whether the left will similarly be all that excited about the First Amendment after 20 years of the Roberts Court may be open to question.

The persons responsible for the constitution of 1787 did not include textual protections for the freedom of speech because they believed that rights were best protected by governing institutions and that parchment barriers would play little protective role in the absence of a public committed to protecting certain rights. My sense is that more than 200 years of history have largely validated this claim. If those structures are presently rotten, we need to seriously consider replacement because, contrary to Kinsley’s too brief comments, poorly designed republican institutions are likely to be poor vehicles for protecting republican rights, even those republican rights enumerated in a national constitution.

Comments:

You acknowledge that particular forms of speech, such as "flag burning, certain forms of hard core pornography, or, perhaps, hate speech" might be explicitly excluded from a new First Amendment. I am afraid that many more forms would be added to the list. Just the three you list might be expanded to include all speech advocating the overthrow of the government or its losing a war, all forms of pornography, and all disparagement of racial or ethnic groups. To those we might add advocating homosexuality or the use of illegal drugs. Politicians, after all, seem to have persuaded most of the nation that the ACLU is a subsersive organization.
 

Michael Kinsley need not worry about 2/3 of the State legislatures even calling for a constitutional convention whose purpose would be to strip the smaller states of their two senators in favor of sending more power to the few large states. There are far more smaller states than there are those like CA, TX, FL and NY.
 

Why does Henry believe that the participants in a new convention (however chosen) would be favorable to banning "all speech advocating the overthrow of the government or its losing a war, all forms of pornography, and all disparagement of racial or ethnic groups. To those we might add advocating homosexuality or the use of illegal drugs"? My impression is that there is widespread support these days for freedom of speech. Take the specific example of "disparagement of racial or ethnic groups." I think it is basically only some academics and a few others who support bans on "hate speech." Most of the public seems hostile to what gets labeled as "political correctness." Too many Americans, including members of the religious right, enjoy pornography really to support a ban on it. There is no realistic possibility of banning the advocacy of what is viewed as "deviant" sex or even the use of illegal drugs, given the sheer numbers of people who do both. Any constitution would have to be ratified, according to my scheme by majority vote (perhaps in a majority of the states, if one wants a tip of the hat to our federalist tradition), and there is no real possibility that a majority would vote for what might be called the "untolerationist" program. As at Philadelphia, anyone realistically committed to drafting a new constitution adeuqate to the 21st century would have to make all sorts of compromises, the most important of which would be simply not mentioning things that would predictably generate a large single-issue-based rejection of the whole thing. (This is, incidentally, the main reason given for the failure of Congress to authorize the federal chartering of corporations.)

As to whether the ACLU is a subversive organization, I note that Bob Barr is willing to associate with the ACLU, and my view for years has been that if "we" (i.e., self-styled liberals, progressives, etc.) displayed moreo understanding of people who take the Second Amendment seriously, then "they" would take our professed commitment to the Bill of Rights more seriously. Perhaps this is now happening.

I also note, for the record, that the first state to reject constitutionalizing an "opposite-sex" view of marriage is Arizona, on the same day they re-elected a Republican senator.

It's time for liberals to stop fearing their fellow citizens so much. Last Tuesday featured important victories in states that are probably disdained by too many liberals, including Missouri.

Howard Dean is right. One virtue of embarking on rebeoming a a 50-state movement is that it will actually require getting to know people outside our own parochial enclaves.
 

I hope that I am unduly pessimistic about the public's attitudes toward freedom of speech. But the public won't vote for the new constitution; state legislators will. And how many state legislators will be willing to risk being called "pro-pornography," "pro-homosexuality," or "pro-drug"?
 

If one can fantasize about the actual possibility of a new convention (a clear longshot, I recognize), then one can fantasize as well that it would emulate the framers and discard the existing ratification procedure. My own preference would be for a national referendum and, as indicated, requiring a majority vote in a majority of states. But I could even imagine returning to 1787 and having ratification by popularly elected conventions, with the key number being a majority of states that also, at the same time, included a majority of the populace. In any event, I think that if any political movement ever actually developed behind the idea of a new convention, there would be enough legitimacy in the convention to put the 3/4 requirement on the shelf.
 

The argument here seems inconsistent. The reference to "parchment barriers" suggests we don't need a First Amendment, that a properly constructed democratic system will itself protect free speech; indeed, the assertion is made that history validates this claim.

Just two paragraphs above, though, there is a long list of abuses which occurred despite the express textual support. Note that this list omits the numerous legislative restrictions on speech, state and federal, which the courts have struck down on 1A grounds. A compilation of those legislative acts would give us a much better sense of what majority rule would enact in the absence of the 1A. It wouldn't be pretty. Or very free.

The suggestion that courts would protect free speech under other clauses strikes me as implausible. Text DOES matter; so does the "legislative history" -- it's hard for me to imagine that changing or repealing such an important clause wouldn't affect interpretation going forward.

Nor should we make the comfortable assumption that only the free speech clauses of the 1A might be changed in harmful ways. I can easily imagine pressure to allow government encouragement of religion (on a "neutral basis", of course), including tax support.

I don't see any reasonable chance that a convention would fix the undemocratic nature of the Senate. The assumption seems to be that delegates to the proposed Convention would be chosen according to population. I see no reason to assume that at all; it's much more likely that the smaller states will participate only with an equal voice, just as they did last time. They will never allow that clause to be changed. We'd put all the civil rights gains at risk for no real benefit to democracy.

There is an historical example we can use to solve the problem. The British gradually eviscerated the House of Lords, their equivalently undemocratic branch. This process took two hundred years. The trick is to eliminate the power of the Senate bit by bit when the political situation is ripe. I suggested a few days ago that we start with the "advise and consent" clause. Perhaps another might be easier, but we need to be thinking along this line rather than putting (illusory) hope in a new Convention.

if "we" (i.e., self-styled liberals, progressives, etc.) displayed moreo understanding of people who take the Second Amendment seriously, then "they" would take our professed commitment to the Bill of Rights more seriously.

I personally take it very seriously. I just take it as a collective right, not an individual one. What I can't take seriously is anyone who refuses to support other clauses of the BoR for no better reason than disagreement over the correct interpretation of one of them.
 

I don't think the argument is that supporters of the 2nd Amendment don't support the others because ACLU types don't support the 2nd. Rather, a very powerful libertarian alliance has failed to gel because most NRA-members correctly perceive the ACLU as disdainful of their favorite right, and most ACLU members, at least in urban and academic areas, I strongly suspect, perceive NRA members as yahoos.

If the support for the basics of the Bill of Rights is as fragile as some of the postings suggest, then, like Learned Hand, I'm extremely skeptical that the courts alone can preserve them. Indeed, it is interesting to look at state court decisionmaking over the past 20 years. There are a lot of surprisingly liberal decisions, even in courts subject to popular election. I suspect that the rights that would be most fragile would be those of criminal defendants. But the reality of our system today is that only the wealthy actually enjoy any significant protection, as the rest are condemned, in most cases, to plea bargaining and the waiver of the fine set of parchment rights established in the 1960s.
 

I don't think the argument is that supporters of the 2nd Amendment don't support the others because ACLU types don't support the 2nd. Rather, a very powerful libertarian alliance has failed to gel because most NRA-members correctly perceive the ACLU as disdainful of their favorite right, and most ACLU members, at least in urban and academic areas, I strongly suspect, perceive NRA members as yahoos.

ACLU is not libertarian, they are leftists who share a few of the same stands as the libertarians.

ACLU opposes not only the right to keep and bear arms, but also religious speech, property rights, federalism and the right to life.
 

The 2A reference reminds me that one of my first experiences of the Internet was to dl a certain article on the "embarassing" 2A.

Not to totally re-fight the battle, but I think the 2A is focused on a specific aspect of the right to own weapons, so relying it for that purpose seems to me unwise. It can be stretched to apply to individual rights, but I think other amendments (9A/14A) are better used for that purpose.

The idea that the ACLU is against religious speech is absurd given all the cases they are involved in that further this purpose. The fact they oppose government sponsored religious speech notwithstanding.

The same can be shown as to property rights etc. though this would require a bit more discussion on defining the terms. Still, their concern for 4A and privacy rights overall do a lot more than others to secure property rights in many cases sure enough.
 

"I just take it as a collective right, not an individual one."

Exactly, you don't take it seriously. Or else you wouldn't resort to such sophistries to render the right moot.
 

Rather, a very powerful libertarian alliance has failed to gel because most NRA-members correctly perceive the ACLU as disdainful of their favorite right

I suspect that those who believe strongly in a right are inclined to see non-believers as "disdainful", whether they are or not. I also suspect that those who don't believe in a right are likely to be dismissive of arguments in favor of that right.

It seems to me that gun rights supporters who do believe in other rights would accept that specialization in rights enforcement makes good sense and applaud the ACLU for the good that it does. There's nothing wrong with uniting on areas of common agreement while agreeing to disagree on other issues -- after all, it's not the ACLU which is passing laws which allegedly infringe on gun owners' rights.

If the support for the basics of the Bill of Rights is as fragile as some of the postings suggest, then, like Learned Hand, I'm extremely skeptical that the courts alone can preserve them.

I'm not sure "fragile" is the word I'd use. "Vulnerable" seems more like it.

I think we have to take seriously the problem of majority tyranny, especially in the short run. What courts do, in my view, is force the debate over rights to be prolonged and considered. That weeds out the infringements which lack long term support but which might very well be passed in the heat of the moment and might just as well persist long past that moment if the courts didn't intervene, even belatedly.

I do agree that the preservation of any right, in the long run, requires majority acceptance.
 

Exactly, you don't take it seriously. Or else you wouldn't resort to such sophistries to render the right moot.

Remind me again which side is "disdainful".
 

I have serious problems with the concept that the First and Second Amendments are exactly equivalent. I cannot accept that, just as no form of speech is too dangerous to be banned, no type of firearm is too dangerous to be banned. Nor can I accept thatjust as the whole point of freedom of speech is to be able to criticize the government, the whole point of a right to bear arms it to be able to shoot at the government.

(Yes, I know, some types of speech such as assaultive speech or death threats are not considered constitutionally protected. But surely that is all the more reason to believe that some types of guns should not be on the streets).
 

If that constitution has an enumerated due process right, a right which under contemporary constitutional law encompasses a free speech right, that may be just as good.

Why would the Constitution need anything other than a "due process" clause? That could be the whole thing, just "No person shall be deprived of life, liberty, or property, without due process of law." Every decision by the Court is based on their idea of what "due process" means anyway, right?
 

I like Mark Field's suggestion of a significant value of the courts.

As to the ACLU, given that the individual gun ownership is greatly furthered by many of the rights they focus upon (note how hard it is with a strong 4A to criminalize let's say sodomy), that too should be a check in their favor.

Given their unpopular place in society, I doubt the fact the organization -- as compared to many who support it -- is too useful for the promotion of strict gun laws.

Finally, how the courts interpret "due process" depends on various factors, including broad themes growing out of enumerated rights. This includes "penumbras" to such rights. W/o them, it would be a lot easier to define "due process" narrowly.

The 9A aside, this is a core reason why the Founders wrote down a few key rights to begin with -- as a reminder and re-inforcement policy. It is not like they thought "natural rights" like free exercise is only in place because of the 1A.
 

But corporations get their first amendment rights through the 14th amendment - or at least that is what they claim as justification. If one had a Constitutional Convention, what would happen to precedents like that? We'd probably end up with something like Bremer's rules and the Iraqi constitution; free speech would be the least of the problems.

Besides, we don't need a convention to rewrite Constitituion; we need a dissolution because this country is just too damn big for its own good.
 

"Remind me again which side is "disdainful"."

We're both disdainful; You're disdainful of a right, I'm disdainful of sophistry.

Back to the 1st amendment, given the BCRA, campus speech codes, and the wide range of speech banning rhetoric I see coming from the left, I seriously doubt that the threat to "speech" as such, comes from the right.

Most likely the threat from the right would consist of clarifying that the 1st amendment protects actual speech, whether directly spoken or broadcast, and printed text, not "symbolic" speech or pictures. Their version of the 1st amendment would be hell on people who wanted to burn flags or watch people screwing, but it would afford people who wanted to, you know, actually communicate a great deal more protection than the left is in a mood to extend right now.
 

If there were a Constitutional Convention resulting in a new Constitution, consider the role of originalism in interpreting and construing it. What might be left of the originalism of the 1780s and 1860s? The new originalism would have the benefit (and the detriment) of the earlier views of originalism. It could be confusing.
 

Finally, one might wonder whether the left for the foreseeable future should be willing to risk all and everything for a first amendment that is more likely to protect big campaign donors, abortion protestors, commercial enterprises, and religious groups seeking public funds than leftists increasingly shut out of a shrinking public sphere.

I found this statement puzzling in many respects:

1. Are you suggesting that the left does, or ought to, believe in "free speech for me but not for thee"? If not, why would the "left" need to reconsider its belief in free speech based on the fact that non-leftist speech might be protected?

2. In what way are "leftists" shut out of free speech? If you answer this question, please consider whether there is any modern analogue to the Dennis case.

3. What is your evidence that the "public sphere" is "shinking"? What does this even mean?

4. What is your evidence that the First Amendment is "MORE likely" to protect the non-leftist speech that you list? Merely pointing to the existence of a few decisions granting such protection isn't helpful; you need comparative empirical evidence to support your claim.
 

Brett: Back to the 1st amendment, given the BCRA, campus speech codes, and the wide range of speech banning rhetoric I see coming from the left, I seriously doubt that the threat to "speech" as such, comes from the right.

I doubt it comes necessarily from the left, either. I think "free speech zones" are a more telling index of the restriction of free political expression, and they have been implemented by both "left"-leaning and right-leaning bodies of government.

Speech codes and the BCRA, likewise, have been supported by institutions on both sides of the aisle.
 

"Speech codes and the BCRA, likewise, have been supported by institutions on both sides of the aisle."

Yes, you can find institutions on both sides of the aisle that support regulating political speech. But the weight of the support for regulating political speech is mostly on the left, and it's not worth pretending otherwise. It's no coincidence that one of McCain's biggest problems with the Republican base is exactly his support for campaign censorship.
 

Nothing the Supreme Court rules, or any imaginary constitutional convention decides, will ever again pose a threat to the free exchange of ideas (or porn), given the state of information technology and its likely future. The desire of "progressives" to restrain corporate influence via paid media already has more than a whiff of yesterday's battle, like the word "lackey."

"Anyone realistically committed to drafting a new constitution adeuqate to the 21st century," in Mr Levinson's words, should be aware of this. His preference for discussing the electoral mechanics of various majoritarian prohibitions and his conflation of "banning" with "stopping" betrays an inadequate commitment to understanding the century he professes to ready us for.

"Getting to know people outside [y]our own parochial enclaves" must begin with understanding what makes this era different from the one that gave rise to the consensus welfare statism of your atavistic fantasies. It does not mean dropping in on Indiana for some consciousness-raising, it means convincing them that vigorously taxing what few employers remain is a good idea. That is not going to be easy, whether you have to convince 10 representatives and 2 senators, or 11 People's Deputies, or whatever.
 

Australia does not have a bill of rights, a result of our founders believing the bill of rights was a major cause of the Civil War. Canada originally lacked a bill of rights as well. The Australian constitution nevertheless follows the US model quite closely (Sometimes word for word) in the structure of the parliament and the judiciary.

The High Court of Australia has nevertheless found a number of implied rights, including a right of political communication which roughly approximates your First Amendment. The High Court has also found against bills of attainder on a version of the vesting argument which I guess we could call the theory of the unitary judiciary.

Free Speech and the Constitution

The High Court and the Nature of Judicial Power

Needless to say, I've voted yes in 2 referendums to adopt a bill of rights, but both failed to meet the requirement of a majority of the people and a majority of the states.
 

Post a Comment

Home