In Defense of Expression

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

            Louis B. Brandeis, 1928

When the Anti-Federalists grudgingly accepted the U.S. Constitution in 1789, they did so with the caveat that certain liberties be included in the document.  These would be liberties that were not susceptible to the whims of the government or other forces.  One of those liberties was the freedom of speech.  I’ve written often about the subject, both its importance and its limitation.  It is a passion of mine and one that is increasingly under attack.  It is, at present, our most endangered right.

In 1644, writer John Milton addressed the Parliament to oppose a bill that would heavily restrict what the country’s authors could and could not write about.  The speech, detailed in Milton’s Areopagitica, is considered one of the finest defense of expression.  It is a damning account of the writer’s belief that any “standardization” placed on writers could create consensus and intellectual laziness because faith and knowledge will not have the opportunity to “exercise itself.”  What Milton is talking about is that any limit to expression, be it written or oral, is a two-way bondage.  On one hand, it prevents from one the chance to express themselves but, on the other hand, it prevents the majority the chance to strengthen their own position by listening to others.  Knowledge cannot be improved upon unless it is challenged and forced to defend itself.

The Founding Fathers understood the importance of the freedom of speech, given its prominence within the First Amendment of the U.S. Constitution.  Economist and philosopher Rosa Luxemburg referred to such a freedom as the right of the dissenters.  Freedom of speech only for the loudest or the most powerful is no freedom at all but a tyranny.  People who exist in such bubbles are at risk, as Christopher Hitchens once said, of taking “refuge in the false security of consensus.”  Individuals who only listen to like minds, who only watch like presentation of news or information, who refuse to hear or attempt to shout down any contrary point of view are ultimately dooming themselves. 

Such people are being witnessed throughout our country, on campuses from Yale to the University of Missouri to many others.  The situation at Yale University has been most publicized because of a viral video showing one out of control student yelling and cursing at a university administrator who had sent an email to consider others before deciding on a Halloween costume.  To some students, it was not enough to “encourage” others but to demand that no one wear a costume that could potentially offend someone or violate someone’s “safe space.” 

When you hear stories about this, it is enough to shake one’s head.  What many of these students are going on about when talking about “safe spaces” and the like is a demand to go through life un-offended.  In their young lives, they have either never been told or have chosen to forget completely the lesson about other ideas or words, particularly if they don’t like them.  What is offense taken?  In my twenty years as a teacher, as a former Marine, as a Jew, as a guy of size, I’ve heard many things in my life that would be deemed offensive.  However, I learned quite early that it does not matter what is said.  Unless it is true, what do I care?  It is not surprising that many have characterized these “crybullies” (not my word) as entitled and spoiled. 

A person should have the right to wear whatever they want as a costume or in an arena of ideas, be able to say what they would like.  Does such a right protect one from criticism or counter-ideas?  Unequivocally, the answer is no.  However, to stage protests that prevent the free expression of ideas is a dangerous trend.  Such rights have emboldened oppressed people for centuries in this country.  As many of these protesters are people of various races, it is even more perplexing because a commitment to freedom of expression has allowed one civil rights’ movement after another to be born, prosper and ultimately, succeed in this country.

I have strong opinions about freedom of speech.  There are limits however, outside of those very few exceptions, the right to express oneself in either offensive or banal terms is unassailable.  The Constitution says that the government was created to “secure the Blessings of Liberty.”  Secure, not bestow or create but secure.  That means the rights pre-date the government.  These are rights with which we are born and cannot be taken from us by government.  Let’s hope mob rule does not do the job.  

The Hurried President

When I was growing up, my parents were always keen to tell me to slow down – “don’t eat so fast,” “you’re mowing the grass too quickly” and, my favorite, “you are trying to clean your room too fast, slow down and do it right.”  I was taught that if one wanted to do something right, one could not hurry through.  When the Founding Fathers wrote the U.S. Constitution, they purposefully created a system that would require an inordinate amount of time to get through bills or conclude other measures.  The fear was that if it were easier to enact legislation or amendments to the Constitution, emotionalism and reactionary impulses would determine the direction of the country.  The time spent would also allow the government to consider all options to avoid going blindly towards a “solution.”  President Obama is not adhering to the wisdom of those who constructed our government. 

In 1975, while prime minister of India, Indira Gandhi sought to jail her opponents.  At the time, she said, in her defense, that while an opposition was a necessity in a democratic system, democracy dictates that the opposition should allow the government to follow its programs since they were the ones elected.  President Obama, over the course of his time in office, has taken a similar point of view.  Over and again, he has attempted to rush through or otherwise avoid discussion over key points of legislation while chanting his personal mantra, “Pass it now.”  In the construction of his Affordable Care Act, the bill was constructed without much transparency and the bill was ultimately passed without a full investigation and discussion on its various components.  Constantly, the president bemoaned a process that insists on deliberation and discourse.  The Senate Democrats ran roughshod over Republican concerns which, by the way, represented the concern of a large portion of the population, and passed it with little consensus and even smaller comprehension. 

A couple of years ago, the president demanded that his job works program be instituted immediately.  His State of the Union Address was littered with repeated calls for passage.  I do not believe that the former constitutional lawyer is unaware of the function and design of Congress; I’m just not sure he is interested in the detail investigation of his policies.  It is his hope that that repeated incantations of the misery of the unemployed will force his opponents to simply rubber stamp his vision in a wave of emotionalism.  In more recent days, he is doing the same with the various programs introduced by Vice President Joe Biden to curb gun violence.  It is does not matter whether the programs and policies will work because that is not the point.  Rather, the show of action is meant to be enough to mollify those demanding substantive change.  A few weeks ago, his attempt last year to push through appointees to the National Labor Relation Board without Senate confirmation was slapped down by a federal court as unconstitutional and has highlighted a disregard for the law he once was entrusted with teaching and has wasted a year’s worth of efforts by the NLRB. 

Many of the president’s defenders will say that the obdurate nature of the Republicans is preventing anything from being done and the president is forced to try and end run around the Congress, where his opponents also include Democrats.  At the same time, the president is quick to point out that the Republicans should be working with Democrats though it is difficult to do that when, at the same time, he tries to circumvent them.  I’m sure neither President Obama nor his supporters are interested in my assessment of his legacy but much of it will be based on his tendency to attempt to strong-arm legislation through.  It is not a tactic worthy of man so knowledgeable of the Constitution nor is it in keeping with the finer traditions of democracy. 

A Constitutional Viewpoint

Now the Senate is looking for “moderate” judges, “mainstream” judges.  What in the world is a moderate interpretation of a constitutional text?  Halfway between what is says and what we’d like it to say?
            Supreme Court Justice Antonin Scalia, address to Chapman University, 2005

Much talk has been given to the appointment of judges upon the Supreme Court of the United States.  For those not familiar, such judges are appointed by the president and confirmed by the U.S. Senate.  They have life-time tenure.  The thought was that such a tenure would allow judges to exist and to issue verdicts above and removed from political pressures.  For many Americans, legal studies and the inner workings of our court system might come across as rather esoteric but within the wranglings and debates, arguments and dissenting opinions lies a committed guarding of the U.S. Constitution.  The justices who seem to have the right answer are called originalists.

There is an older judicial term called strict or loose constructionism.  It was designed to interpret the extent to which one stays connected to the U.S. Constitution.  Today, a more proper term is originalism.  Originalism or textualism is the concept of judges making a decision on the basis of the exact words of the Founders and the context in which they wrote.  Justice Antonin Scalia, one of the Court’s most brilliant and controversial judges, has often used the death penalty to explain.  Some activists suggest that the Eighth Amendment to the Constitution and its warning against “cruel and unusual” punishment, in essence, invalidates the authority behind capital punishment.  Justice Scalia said that the Eighth Amendment obviously does not suggest that since all the states had capital punishment as a possible consequence to criminal behavior.  How could the Founding Fathers ban something on one hand and allow for it on the other unless they considered the death penalty neither cruel nor unusual?

If we as a society purport to hold valuable the words and intent of the Founding Fathers, why do we try so hard to perform logical gymnastics in order to justify various unfounded political opinions?  The whole purpose of the Constitution is to provide a guideline that brings us through temporary controversies and debates – a calming voice that strongly rejects legal contradiction and moves us away from our worst vices.  To further highlight the importance of an originalist’s point of view, let us take a view at another social dilemma.  Anti-gun advocates suggest that the Second Amendment’s wording suggest the Founding Fathers wanted only those in a militia to have weapons.  However, that was not the context within which they were writing.  In their days, many families, many of them not in a militia, had weapons.  If it was acceptable in 1789, why would the Founding Fathers suggest, reaching through time, that it is not acceptable? 

Behind the power of the point of view of the originalist is a belief in the power of the words of the U.S. Constitution.  If, indeed, these words serve only as a guideline and not irrefutable demands from those who constructed the country, then what is the purpose of the document?  Justice Scalia once said, “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why.  Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”  If the United States, its citizens, its lawmakers and its judges cannot agree in the inviolable character of the U.S. Constitution, we could cease to exist as what we were once envisioned.