Friday, March 20, 2020

Extraordinary and Ordinary Government Speech

Mark Graber

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

The Virginia and Kentucky Resolutions are the best known instances of government speech in antebellum America.  Both declared that the Alien and Sedition Acts were unconstitutional.  James Madison, the author of the Virginia Resolutions, maintained that the Sedition Act “exercise[s . . . a power not delegated by the Constitution, but on the contrary expressly and forbidden by one of the amendments thereto.”  Thomas Jefferson, the author of the Kentucky resolutions, asserted that the Sedition Act “does abridge the freedom of press.”  Virginians rested content to sound the alarm.  The last paragraph of the Virginia Resolutions “appeal[ed] to the like disposition of the other States, in confidence that they will concur with this commonwealth in declaring, . . . that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each.”  Kentuckians offered stronger medicine.  Jefferson declared the Sedition Act “is not law, but is altogether void and of no effect.”

Government speech in antebellum American frequently challenged constitutional decisions and constitutional provisions.  Georgia declared implementing the Supreme Court’s decision in Chisholm v. Georgia (1793) to be a capital crime.  The Hartford Convention called for constitutional amendments abolishing the three-fifths clause, requiring a two-thirds vote in both Houses of Congress to admit new states, declare war, and impose embargoes, limiting embargoes to sixty days, and forbidding naturalized citizens to hold federal office.  South Carolina in 1832 issued a proclamation nullifying protective tariffs.  Wisconsin two decades later passed legislation nullifying fugitive slave laws.  Four states, South Carolina, Georgia, Mississippi and Texas, issued declarations explaining why they had seceded from the Union.  “A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union” stated, “We hold as undeniable truths that the governments of the various States, and of the Confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race.”

Helen Norton’s The Government’s Speech and the Constitution is a magnificent account of the constitutional questions raised by ordinary government speech.  The government speech Professor Norton carefully analyzes does not explicitly challenge constitutional norms, constitutional decisions or the constitutional text.  The text meticulously details the different ways in which various instances of ordinary government speech might be inconsistent with fundamental constitutional.  Government speech that promotes white supremacy might unconstitutionally cause material damage to persons of color, unconstitutional inflict stigmatic harm or simply exercise powers government officials are not constitutionally authorized to exercise.  Professor Norton does not rest her hat on any particular understanding of such constitutional provisions as the religion clauses of the First Amendment or the due process clause of the Fourteenth Amendment.  One of the numerous virtues of her richly documented study is how Professor Norton explores the ways in which various instances of government speech are consistent with such constitutional understandings, while inconsistent with others.  Whether Secretary of Housing Ben Carson’s recent call for a day of prayer violates the religion clauses of the Constitution depends on whether the establishment clause forbids only religious coercion, prohibits state endorsement of religion or requires strict state neutrality between religion and non-religion.  This admirable willingness to speak to a broad audience makes The Government’s Speech a work readings of all interpretive persuasions can turn to for an account of contemporary problems of government speech.

With rare exception, the government speech Professor Norton discusses does not explicitly express any view on constitutional norms, constitutional decisions, or the constitutional text.  The first three examples that dot the text are “The Surgeon General’s report documenting the dangers of tobacco,” “A town council’s prayer to open its meeting,” and “The Johnson and Nixon Administration’s lies about what the United States was doing, and why, in Vietnam.”  Of course, the town council’s decision to open meetings with prayers is rooted in constitutional understandings, as are many of the other examples Professor Norton gives.  None of the examples, however, explicit challenge the constitutional norms, constitutional decisions and constitutional texts that Professor Norton relies on to determine whether these are constitutional exercises of power.  The town council claims their prayer is consistent with the establishment clause.  Whether that claim is correct, the analysis in The Government’s Speech suggests, depends on the proper interpretation of the Establishment clause.

Nullification and secession declarations may be subject to similar analysis.  Jefferson’s Kentucky Resolutions asserted that states had the right to nullify federal laws.  “As in all other cases of compact among parties having no common judge,” he wrote, “each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.”  The South Carolina Ordinance of Secession claimed that secession was a constitutionally legitimate response to constitutional infractions.  Whether these were instances of constitutional government speech depends on the constitutional status of nullification and secession, in general or in those specific instances.  If, as is widely agreed on at present, both secession and nullification are unconstitutional, then the Kentucky Resolutions and the South Carolina Declaration of Secession are instances of unconstitutional government speech.  States have no right to secede at present, then the Texas Secession Declaration if issued at present would violate both the constitutional ban on secession and the constitution ban on government policies that promote white supremacy. 

The Virginia Resolution and Resolutions of the Hartford Convention are more problematic.  Each challenged existing constitutional norms, constitutional decisions or the constitutional text.  Whether such government speech can be analyzed under doctrines used to evaluate government speech that purports to respect existing constitutional doctrine is problematic.  Consider a simple example.  Broad agreement exists that government cannot say this is a Lutheran Commonwealth, even if that is unaccompanied by any policy coercing people to be Lutherans.  That government speech is prohibited by the First Amendment, which, as incorporated by the due process clause of the Fourteenth Amendment, forbids states from establishing a state religion.  Suppose, however, a state government proposes a constitutional amendment declaring that the United States is a Lutheran Commonwealth or proposes to overturn by all lawful means a judicial decision forbidding states from declaring the state is a Lutheran Commonwealth.  This speech seems constitution under Article V, which requires Congress to call for a constitutional convention for proposing amendments on the application of the three-quarters of the states.  Nevertheless, little difference exists between a bare state claim that this “this is a Lutheran Commonwealth,” and either “the Constitution should be amended to make this a Lutheran Commonwealth,” or “Supreme Court decisions forbidding states from declaring ‘this is a Lutheran Commonwealth’ should be overruled.” All three instances of government speech make non-Lutherans feel like outsiders to the community.  All violate religious neutrality.

The ways in which unconstitutional ordinary government speech may be constitutionally sanitized by converting the utterance into extraordinary government speech may undo substantial swaths of Professor Norton’s analysis.  Converting unconstitutional ordinary government speech into constitutional extraordinary government speech is easy.  Decendents of the Texans who seceded in 1861 might claim that the Constitution, properly interpreted, is s committed to white supremacy or should be amended in ways that create a committed to white supremacy.  What was initially an actionable harm under the First Amendment or Fourteenth Amendment now seems permitted government speech under Article V.

Work in comparative constitutional democracy offers one solution to the problem of extraordinary government speech. Such scholars as Walter Murphy and Yaniv Roznai, as well as courts in Germany, India and elsewhere, insist that constitutional amendments may not alter the fundamental structure of the constitution.  Amendments that do so are illegal and void.  States may not propose constitutional amendments declaring a state religion or that some people are genetically inferior to others because such amendments violate fundamental constitutional principles. If Americans may not adopt a constitutional amendment declaring a state religion, on this logic, then Texas cannot propose a constitutional amendment declaring a state religion or promise to fight by all lawful means a Supreme Court decision prohibiting the establishment of state religions.

The unconstitutional constitutional amendment doctrine has not caught on in the United States, in part, perhaps because early advocates insisted that the post-Civil War Amendments and, later, the Nineteenth Amendment granting women’s suffrage were unconstitutional amendments.  The Supreme Court in Schneiderman v. United States (1943) insisted that persons could be loyal to the United States no matter what their beliefs, as long as they believed their goals would be achieved by an Article V constitutional amendment.  Calling for a white supremacy movement, in this view, is as American as calling for a proletarian revolution by constitutional means.  Felix Frankfurter’ concurring opinion in Cooper v. Aaron (1958) more explicitly endorsed constitutional protection for government speech that challenged constitutional norms, constitutional decisions and the constitutional text.  Arkansas was free to seek to reverse the result in Brown v. Board of Education (1954), as long as Arkansas confined efforts to maintain white supremacy to lawful means and complied with court orders.   If Texas believes that the firstborn children of all Jewish residents in the United States should be thrown into the Missisippi River, Schneiderman  and the Frankfurter concurrence in Cooper maintain, Texas may constitutional champion this position by calling for the relevant chances to be made in the constitutional text or constitutional understandings.

The problematic status of the unconstitutional constitutional amendment doctrine in general and in the United States highlight the last of the many virtues of The Government’s Speech.  While Professor Norton points to ways in which victims of unconstitutional government speech might be able to obtain injunctions or damages, she recognizes that litigation is not a cure-all for abusive government speech, in particular, how government speech is practiced at present.  At the end of the day, the only cure for abusive government speech is a public committed to basic constitutional values and an evidence-based politics.  Whether the United States still has the public may be the most important question about the status of constitutional democracy in our regime.

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