First Amendment Freedoms

First Amendment Freedoms in the United States

Concepts

In relation to the First Amandments freedoms, there are definitions in the American legal dictionary (see the entries) about the following topics:

  • Writ of habeas corpus
  • Ex post facto law
  • Bill of attainder
  • Due process clause
  • Selective incorporation
  • Establishment clause
  • Vouchers
  • Free exercise clause
  • Bad tendency test
  • Clear and present danger test
  • Preferred position doctrine
  • Nonprotected speech
  • Libel
  • Sedition
  • Obscenity
  • Fighting words
  • Commercial speech
  • Prior restraint and Civil disobedience

Constitutional Freedoms

Timothy Sandefur, in relation to his book, The Conscience of The Constitution, comments that “the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom. This entails government by consent—we have the right to a say as to how we are governed—but democracy is only an instrumental good, serving the more basic end of freedom, and is not an end in itself. Freedom is thus not a gift from the state or the majority—it isn’t just the wolf’s choosing not to harm you. Instead, freedom is each person’s birthright. Government cannot legitimately limit our freedom unless it gives good reason for doing so. And “good reason” means not arbitrary ipse dixit, but a rational principle that actually benefits people and respects their freedom.

This black-letter classical liberalism contrasts with the notion that rights are grants from the sovereign which the sovereign may revoke when it chooses. As Madison wrote, “In Europe, charters of liberty have been granted by power. America has set the example…of charters of power granted by liberty. This revolution in the practice…may…be pronounced the most triumphant epoch of [world] history.”

One example of how the founders overthrew the rights-as-privileges model is in religious freedom. Pre-Revolutionary British law extended religious toleration to (some) dissenting sects, and writers like Locke and Blackstone (very different in their views of rights) were proud of British toleration. But Jefferson, Madison, Paine, and others rejected this approach because it implied that religious freedom was a gift from the ruler which the ruler might legitimately withhold. When George Mason drafted the Virginia Declaration of Rights, the young Madison, who served on the drafting committee, insisted that the word “toleration” be stricken from the draft and replaced with “liberty” for just this reason. Or, as Jefferson observed in Notes on Virginia, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Government could therefore have no legitimate role there.

Sadly, in our day, leaders of opinion in the law–on both left and right—have reverted to the older conception, which views rights as permissions given to us by government, which government can revoke at will. Where the founders viewed liberty as the central constitutional value—calling it a “blessing” in the very first sentence of the Constitution—lawyers and politicians today now generally see democracy as the Constitution’s primary value, and liberty as a gift extended to us by the majority for the majority’s own purposes. Modern legal intellectuals (present company excepted) generally embrace the wolf’s view of freedom—as the right to tell others how to live their lives. And those rights that receive protection are generally secured only because they are seen as serving larger collective ends.

Take, for example, free speech. The founders believed that we have the freedom of speech because we are fundamentally free, and no person has a right to restrict our freedoms, unless we are harming others. They viewed expressive rights through a property-rights model. As Madison wrote, we each have a property in our opinions. But with the coming of the Progressive era, this model was replaced with a democracy-centered model in which speech was valued as instrumental to majoritarianism. The pivotal document here is Justice Holmes’ opinion in Abrams v. United States. This opinion, with its memorable metaphor of the “marketplace of ideas,” is typically viewed as the beginning of modern free speech jurisprudence. Thus the naïve reader would be shocked to find Holmes writing, “Persecution for the expression of opinions seems to me perfectly logical.” Holmes goes on to explain that free speech is a socially-beneficial privilege, a permission the majority gives to the individual to enable the majority to formulate its opinions and impose its will. Where the founders saw democracy as an instrument for protecting freedoms such as speech, Holmes and his modern followers see freedom of speech as an instrument in the service of collective power. The consequences of this reversal of polarity can be seen in the title of Cass Sunstein’s book, Democracy And The Problem of Free Speech. As Richard Epstein quipped, free speech isn’t the problem.

The recharacterization of rights as serving the state, rather than vice versa, climaxed in the New Deal bifurcation of rights into preferred rights like speech and voting, and the “poor relations” rights, like property or the right to earn a living. Although that division was blurred somewhat as a result of the nation’s confrontation with fascism in World War II, and with segregation afterwards, it still persists today via the judicial prejudice manifested in anything-goes “rational basis scrutiny.” Some, including Prof. Sunstein, are now even trying to diminish constitutional protection for speech rights, because they think doing so would better serve democratic ends.

In Conscience, I argue that this basic dichotomy—the sheep’s view of freedom versus the wolf’s view—isn’t just an argument about political philosophy. It’s a central, yet disregarded, part of our law. Notwithstanding the claims of some, including Justice Scalia, the Declaration is part of our law, as much as the Constitution itself. As a corporate document, it proclaims the American nation and defines the foundation of the union; as a constitutional document, it creates the “people” who later make their appearance as “We the people” in the Constitution’s opening line; as an interpretive statute, it articulates the guiding principle for understanding the Constitution. Reading the Constitution to serve classical liberal ends is not, as liberals and conservatives so often claim, fraudulently inserting our subjective preferences into the text—it is enforcing the principles the system was written to embody.

The Constitution was written on the presumption that a people are fundamentally free, and that democracy is an instrumental—and dangerous, and limited—good. I argue we’ve gone astray by inverting those priorities. But we cannot hope to answer constitutional questions rightly on the wolf’s premises; attempting this is means operating the constitutional machinery while ignoring its instructions –acting while disregarding its conscience.”


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13 responses to “First Amendment Freedoms”

  1. International Avatar
    International

    Well, several States used to think that the problem of eve-of-election editorials lambasting this or that particular candidate was that such communications would mislead the public, and enacted right-of-response laws requiring that newspapers provided the competing candidate an opportunity to respond, in kind. This was the classic more speech is the best response to bad speech legislation, but the Supreme Court declared such laws unconstitutional, so it must be more complicated than that.

  2. International Avatar
    International

    The clauses that protect slavery are more than sufficient to establish that the Constitution was not about protecting what we think of as liberty today. Chattel slavery is as wolfish as it gets.

    Even the venerated checks and balances were created in the context of Southern plantation owners wanting to ensure that a new, more powerful national government would not be able to interfere with slavery. And indeed it did not, until the slave states made the mistake of seceding.

  3. International Avatar
    International

    The only mention of slavery in the constitution is the 3/5ths clause. Understood in the correct context, that is actually an anti-slavery measure. The slave states wanted slaves to count as a full person for purposes of determining representation in the House. This would have given the slave states effective control over the House. The 3/5ths clause is a compromise forced on the slave states by the free states to prevent that.

    No doubt that it would have been preferable for liberty had the free states been able to prevent the slave states from counting slaves at all but that simply wasn’t achievable at the time.

  4. International Avatar
    International

    There’s also the fugitive slave clause and the clause that prevents Congress from interfering with the slave trade until 1808. Whether the 3/5 compromise is pro-slavery or anti-slavery depends on a framing issue that we aren’t going to succeed in resolving any time soon.

    As for whether it was achievable, the reason it wasn’t achievable is that a lot of the people who wrote and ratified the Constitution didn’t want it to be achievable. You can’t treat pro-slavery politicians a force of nature external to the process of writing and ratifying the Constitution, because pro-slavery politicians were directly involved.

    The point is, that if there hadn’t been sufficient anti-slavery politicians involved to force the 3/5ths compromise the result is that the slave states would have controlled the House indefinitely due to fully counting slaves for representation giving the slave states drastically higher populations. In that scenario it likely would have taken a lot longer to end slavery in this country.

  5. International Avatar
    International

    Aaron Rasmussen

    The Declaration is a statement of revolutionary intent, setting forth the conditions under which a people may be justified in engaging in armed rebellion against their own government. The Constitution is a governing document. It is not entirely unreasonable to read the Constitution in a way that would prevent those conditions that are set forth in the Declaration that justified the armed rebellion that led to the drafting of the Constitution.

    Having said that, I love the difference between the Declaration’s assertion that “Life, Liberty, and the pursuit of Happiness” are inalienable rights, and the Constitution’s statement that we may be deprived of any or all of these things (plus property) so long as we are given “due process of law”. The distance between those two statements is the distance between the easy emotional self-righteousness of protest and rebellion, on the one hand, and the difficulty of responsible self-governance on the other.

    Sandefur discusses that in his book. In a nutshell, I believe his argument is that the phrase “due process of law” itself needs to be understood in the context provided by the Declaration. I could be misrepresenting his argument, though.

  6. International Avatar
    International

    An argument was made that the 18A was an unconstitutional amendment. In part, that the “Constitution” could only be “amended,” not its basic character changed. The USSC summarily (annoying a couple justices) rejected this and other claims in The National Prohibition Cases.

    A somewhat similar argument was made against the 19A. In Leser v. Garnett, the precedent of the 15A was cited. Also: The suggestion that the Fifteenth was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiescence, cannot be entertained.

    Still, some do make the argument akin to the hypo posed. See, e.g., the article by Jeff Rosen entitled “Was the Flag Burning Amendment Unconstitutional?”

  7. International Avatar
    International

    Jon_Roland

    A more precise way to discuss this is to posit that there are three unwritten constitutions that precede and are superior to the fourth, written constitution of government. They are the constitutions of (1) nature, (2) society, and (3) the state (society with a territory). What is being called “classical liberalism” here is a conflation of these three, but treated as an ideology rather than as things having an objective existence.

  8. International Avatar
    International

    The second position is that the Constitution enacts classical liberalism because classical liberalism it is the only correct system: It is the only system that that correctly understands the nature and meaning of rights. On that view, the people are powerless to change the Constitution in this way because they have no power to alter the correctness of classical liberalism.”

    I’d say, rather, that the people have the power to change the Constitution in this way, but they have no power to alter the correctness of classical liberalism. That is, they can make the change, but they cannot mandate what consequences will follow.

    That classical liberalism is correct by no means implies that only classically liberal states can exist. Only that states succeed only to the degree that they are classically liberal.

  9. International Avatar
    International

    The notion of rights of any kind is pretty meaningless if it isn’t founded on the principle of protecting minorities from the will of the majority. Some things must be beyond the scope of democratic decision-making, even if you don’t accept that this particular hypothetical issue is one of them.

  10. International Avatar
    International

    I have often seen proposals or hypotheticals that suggest an amendment that either endorses or rejects an approach to interpreting the Constitution and the cases decided more-or-less thereunder. I am skeptical on purely technical grounds. How would such an amendment work? What would it say? How would we apply it in an actual case?

  11. International Avatar
    International

    I think a quote from Benjamin Franklin may be apropos as regards what might have been the founding fathers’ answer to this question: “A republic, if you can keep it.”

  12. International Avatar
    International

    It is not at all clear that the Declaration of Independence reflects an ideology of “classical liberalism,” much less the sort of libertarianism supported by Sandefur, Randy Barnett, etc. There is a great deal of debate on this among historians about the ideas of the founders, but I don’t think any competent historian suggests that the sort of libertarianism for which Sandefur advocates was even thought of in 1776. For Sandefur and like-minded libertarians to come along and read their 21st century version of “classical liberalism” into the Declaration and, based on the Declaration, into the Constitution, is historically absurd.

  13. International Avatar
    International

    The Declaration is among the most Lockean liberal of the founding documents but I agree that it’s not historically correct to import latter day libertarianism into its meaning much less the founding period as a whole.

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