Clouds Over the Project of Liberal Constitutionalism? - I

At a comparative constitutional law conference -- but also on the basis of reflecting on the newspapers -- it's easy to pick up notes of concern about threats to liberal constitutionalism. The obvious candidates are Hungary, Poland, the United States (with the candidacy of Trump), and various other European nations where right-leaning populism seems increasingly, well, popular.

Often the programs of these movements are said to threaten the project of liberal constitutionalism. But, as my earlier post on the rule of law suggested, pinning down what the threats are is sometimes tricky.

Consider Donald Trump's mention of the possibility that U.S. libel law should be changed to make it easier for public figures to recover damages. Suppose that is given concrete form as advocacy for the rule that public figures can recover actual damages to their reputation for false statements about them when those statements were made negligently. (You can tweak the proposal in various ways, for example by saying that it should be more difficult to find negligence for amateur journalists/bloggers than for newspapers and other media that are more fully staffed, but the details rally don't matter for my argument.) Whatever the merits of that position as an interpretation of the First Amendment (which is to say, whatever its relation to existing Supreme Court doctrine). One might reasonably think that current US doctrine places too much weight on the ability of people to make irresponsible statements, too little on real harms to reputation. I confess it quite difficult to see in such a rule a deep threat to liberal constitutionalism. It is, after all, something rather like a rule followed in many clearly liberal polities (and there's no obvious reason rooted in a distinctive US culture to think that the proposed rule would do more damage to liberal constitutionalism in the United States than it does elsewhere).

Or, suppose a government were to adopt a statute allowing criminal punishment for disseminating statements (a) that the legislature determines have a reasonable probability of inducing some listeners to engage in serious criminal activity, or (b) that a fact-finder of the usual sort -- a jury, in the United States -- determines has a reasonable probability of, etc. (People familiar with US constitutional doctrine will understand that the first is a Gitlow-like statute, the second a Schenck-like statute, and that slightly different analytic issues arise in connection with each, but those differences too aren't relevant to this discussion.) Again putting aside current US constitutional interpretations, I find it difficult to conclude that such statutes are a deep threat to liberal constitutionalism. The current US doctrine requires the polity to put up with with the dissemination of statements posing a reasonably high risk of inducing others to commit serious crime, mostly because historical experience isn't encouraging. But maybe the current doctrine errs on the side of requiring too high a risk -- or so someone might reasonably think. (The current British prohibition on indirect encouragement of terrorism is, in my view, a statute of the sort I've described.)

The best defenses of the current US doctrines on these two topics rest on empirical judgments about how various institutions like legislatures and juries operate, whether in "normal" times in the libel case or under stress in the political-advocacy case. In my view, those judgments, while probably correct, are clearly open to reasonable contestation (juries might be better than doctrine takes them to be, etc.).

And, it turns out, nearly all of the actual proposals for revision of existing law -- including taking some constitutional issues away from the courts or altering the terms of judicial tenure -- have the same underlying analytical structure. Each one can be defended as a specification of the content of particular liberal constitutionalist norms (in the example, norms about freedom of expression and norms about judicial independence), and -- I think -- the specifications are within the range of reasonable disagreement about what those norms concretely require.

So, if the proposal are in themselves reasonable specifications of liberal constitutionalist norms, how can their adoption be a threat to liberal constitutionalism? More later.

[I've finally figured out how to enable comments,so perhaps some cogent comments will preempt my post-to-come.]