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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Trading the First Amendment?
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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.
Comments:
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.
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.
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.
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Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |