February 11, 2010


What Is the First Amendment For? (STANLEY FISH, 2/01/10, NY Times: Opinionator)

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

The majority’s purity of principle is somewhat alloyed when it upholds the disclosure requirements of the statute it is considering on the reasoning that the public has a right to be informed about the identity of those who fund a corporation’s ads and videos. “This transparency enables the electorate to make informed decisions.”

Justice Thomas disagrees. The interest “in providing voters with additional relevant information” does not, he says, outweigh “’the right to anonymous speech.’” The majority’s claim that disclosure requirements do not prevent anyone from speaking is, Thomas declares, false; those who know that their names will be on a list may refrain from contributing for fear of reprisals and thus be engaged in an act of self-censoring. The effect of disclosure requirements, he admonishes, is “to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

Boy, reading documents is really a lost skill. To even speak of "free speech" as a stand alone value requires ignoring the text to which it is a mere amendment. Indeed, it has value (and maybe even some substance) only to the extent that it furthers the ends of the general text: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." As Robert Bork has written, not only does its location in the document that outlines a political regime impose a de facto limitation on its meaning to political speech but the notion that even that political speech it can be said to protect must include speech intended to subvert the regime is insupportable on its face. Mr. Van Alstyne's assertion that the Amendment is not linked to any objective is spectacularly ignorant.

Who's afraid of Robert Bork? (Richard Vigilante, 8/28/1987, National Review)

The Architecture of Liberty

POLITICAL CONSERVATIVES have long sought refuge in such slogans as "judicial restraint,' "strict construction,' "interpretivism,' and "original intent,' as if all that was required for good constitutional interpretation were intellectual honesty. But Bork's enterprise starts from his discovery that honest interpretation, though "not an impossible task by any means . . . is a good deal more complex than [such] slogans' would suggest.

He has used the slogans himself, but his writings belie them. He has endorsed "original intent,' or "intentionalism,' but his writings on the subject make it clear he is not so naive as to think we have any way of determining the Founders' states of mind individually or collectively. For him, intentionalism means discovering core constitutional principles with indisputable anchors in the text itself. In other words, it's not intentionalism.

He has endorsed "interpretivism,' but some of his most important articles and decisions firmly reject "crabbed interpretation,' the insistence that the meaning of a controversial passage can be discovered only by a close calculation of the literal meaning of each word in the passage. To the contrary, he argues, such passages must be interpreted so that they make sense within the context of well-established constitutional values and form a coherent part of the mechanics of the Constitution. Consistently, he asks of controverted passages: Given what we already know, and assuming the Constitution to be a coherent document with all its moving parts in the right places, what must this mean? As a strategy for interpreting individual passages this procedure has the advantages of being both principled, and more persuasive than most other strategies. As a way of thinking about the Constitution as a whole it has even broader and more important implications.

Bork gave this interpretive method its fullest exposition in a now famous 1971 Indiana Law Journal article, "Neutral Principles and Some First Amendment Problems.' The first half of the article is devoted to a carefully constructed argument for a judge's obligation to use "neutral principles' of interpretation so as to avoid imposing his personal values on the law, and some observations on how such principles might be discovered and applied.

There are, in this first section, several points of interest. In the course of trying to determine on what level of generality a principle must operate in order to be neutral, Bork takes up Brown v. Board of Education, on which he believes the Warren Court reached the correct result for the wrong reason. His method for reaching the same result is devastating to simple intentionalism. We know, he wrote, "two crucial facts about the history of the Fourteenth Amendment.' Its authors intended to "secure against government action some large measure of racial equality.' But those same authors "were not agreed about what the concept of racial equality requires. Many or most of them had not even thought the matter through.' Some probably believed in black property rights but not voting rights; others, that blacks should be allowed to sit on juries but not to intermarry with whites. The Supreme Court cannot know how these men would have resolved such issues. But it is charged with enforcing a core idea of racial equality:

And the Court, because it must be neutral, cannot pick and choose between competing gratifications and, likewise, cannot write the detailed code the Framers omitted, requiring equality in one case but not in another. The Court must for that reason choose a general principle of equality that applies to all cases. For the same reason, the Court cannot decide that physical equality is important but psychological equality is not. Thus the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson.

The principle he suggests is broad enough to prevent judges from imposing narrower personal preferences, and yet narrow enough to avoid absurdities. By contrast, he argues, the principle of a "right of privacy' derived by Douglas in Griswold v. Connecticut (and later used as the basis of Roe v. Wade) has no logical boundary tighter than a general right to be free of government coercion. Since no such rule can possibly be applied in practice, judges will always use it in an unprincipled way, defending freedoms they approve, such as the right to an abortion, but neglecting others, such as the right to sodomy.

Already we can see a "coherence' or "architectural' (Bork doesn't use those terms) theory of constitutional interpretation emerging. But the heart of the article comes in its discussion of the First Amendment. Bork starts with an irrefutable but quite disturbing observation: It is impossible to believe the First Amendment forbids all restrictions on speaking. Even if the First Amendment applies only to the Federal Government--which Bork does not believe--it is not possible to maintain that the amendment protects incitements to mutiny on naval vessels or shouting "Fire!' in a crowded District of Columbia theater. We thus start from the position that the common literal meaning cannot answer our interpretive needs.

So, we ask, what must "freedom of speech' mean? Well, Bork argues, some of the rights enshrined in the Constitution are clearly meant as direct benefits to individuals: "primary individual rights,' he calls them. And some are "instrumental rights,' granted because an individual's use of them and protection of them in court will help preserve constitutional democracy. But sometimes rights that seem like primary individual rights turn out to make no sense when viewed that way. Free speech is clearly one of these, because the only neutral principle by which we could interpret it thus is, "All speaking is protected,' and we already know that doesn't work. But we can discover principled boundaries for free speech if we view it instrumentally, as part of the mechanics of the Constitution, or --though Bork would never use such a grand and cheery phrase--as part of the Constitution's architecture of liberty.

After a complicated analysis Bork arrives at the conclusion that the First Amendment protects only political speech. His reasoning: Free political speech is a necessary precondition to democracy. "[T]he entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss government and its policies.' Therefore, within the structure of the Constitution, the purpose of the First Amendment must be to protect political speech.

Bork's natural inclination as a writer is to sharpen points and face controversy. In the 1971 article, he went so far as to say that only explicitly political speech, speech about policy and politics, was protected, dismissing the idea that speech with implicit political effects, such as scientific or philosophical speech, was also protected. Even at the time, he appended a partial disclaimer, calling his remarks "tentative and exploratory,' put forth only because "at this moment I do not see how I can avoid the conclusions stated.' In a 1983 interview he told me he now included virtually all intellectually important speech in the category of political speech. That would still exclude pornography or "Fire!' in a crowded theater, a reasonable result.

Nevertheless, it is important to note with what attention to the project of the Constitution Bork's original specification of explicitly political speech was made. For political speech is not only the essential speech for democratic government, it is the only speech that government as government, acting in its own institutional interest, has a motive for suppressing. Citizens might demand the suppression of pornography as a government service, but that is a different thing. There is no instance in American history of a powerful popular movement to suppress important, disinterested intellectual speech. There have been assaults on religious or anti-religious speech, but religion is separately protected. Given our history, one must be impressed at Bork's grasp of the symmetry and mechanics of the Constitution. The moving parts fit; lacking an acceptable literal reading, his is a good if not perfect method of interpretation; it is certainly principled and neutral.

As I have been suggesting, however, the importance of this architectural approach to the Constitution goes beyond yielding a workable and principled method of interpretation for difficult passages. It forces us to contemplate how the Constitution has succeeded in preserving our liberties for two hundred years whereas most documents with similarly noble intentions have failed.

Probably the greatest danger presented by a written Constitution is that it may do its job too well. The purpose of most rules, especially written rules, is to excuse us from thought. It is not necessary each time a hitter safely overruns first base for the players, managers, and umpires to engage in philosophical debate over the justice of allowing overruns at first but not at second and third. We have a rule; without it we could not have a game. On the other hand, if for two hundred years no one involved in baseball felt the need to contemplate its rules and argue their virtues, the baseball community might grow decedent and become unable to withstand challenges to the rules.

Unwritten constitutions, though unwieldy, are less risky in this one regard. Maintaining unwritten rules requires an active sense of their history and virtues; their very indefiniteness encourages continued debate and contemplation. Among written constitutions, those that lack evident internal logic are most vulnerable to decay. Documents such as the Declaration of the Rights of Man or the UN Declaration are in this category: They quickly come to seem like arbitrary lists of some rights and not others, with little power to bind those who would make a different list. The impulse is to pick them apart, in pursuit of moral perfection, as if some decadent baseballer, discovering that home runs were a good, should knock down all the fences.

In American constitutional theory, such as it is, the Bill of Rights is usually regarded as a list of individual benefits that in themselves express our important political values. The guts of the Constitution, Articles I through VII, get only diminished reverence as dry expressions of the rules of the game. This has twin bad results. The Bill of Rights, however important, must seem arbitrary when it is limited not by any requirements of coherence but only by the opinion of the Supreme Court. This arbitrariness may make these provisions fall into disrepute with many citizens, as has already happened with the First, Fourth, Fifth, and Fourteenth Amendments. Disengaged and contextless, but nevertheless regarded as the essential bulwark of our liberty, they will inevitably provoke strident, unprincipled, and demoralizing arguments over their meaning, which will be thoughtlessly expanded and perverted.

At the same time, such an approach will encourage us to neglect the "guts' of the Constitution and, worse, to consider these structural sections value-free. We will concentrate on enumerating our desired liberties rather than on nurturing a structure by which they may be protected. Our respect and understanding for the constitutional scheme will degenerate, as it has done.

The architectural approach, by contrast, forces us to look at the Constitution as a whole, to contemplate our good fortune with an eye to preserving it. We discover that our rights are not the product of the Founders' (or the Court's) charity. Rather, the Constitution established the conditions under which we create our own liberty.

Decmocracy in itself is favorable for liberty. Beyond that, the separation of powers; the mix of democratic, aristocratic, and monarchical styles of governance; the federal system; the protections against avaricious factions found in the preservation of contract and the various protections of private property; the strict definition of treason; the prohibition against religious tests for voting or office-holding; the protections for political debate, including free speech, a free press, and the right to assemble and petition for a redress of grievances; the right to bear arms; the prohibition against the quartering of troops in peacetime; the Fourth and Fifth Amendment protections for the accused (which, given the limited criminal-law responsibilities of the Federal Government at the time of the Founding, were probably meant to protect political dissidents); and many other provisions fit together like the stones of the Capitol dome, pushing against each other, supporting each other, to create beneath a vast protected space for liberty.

Lists are easy. Any man may call upon a list of rights. But will they come when he does call to them? Engineering a republic is a more demanding task.

Posted by Orrin Judd at February 11, 2010 1:48 PM
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