Rethinking the Bill of Rights

COMMENTARY The Constitution

Rethinking the Bill of Rights

Dec 15th, 2016 4 min read
COMMENTARY BY
Arthur Milikh

Associate Director, B. Kenneth Simon Center

Arthur Milikh conducts research on America’s founding principles.

The Founders intended freedom of speech and the press to promote understanding and civic virtues, not undermine them. Today marks the 225th anniversary of the ratification of the Bill of Rights. But since the lawyers and the courts have come to dominate all discussions of it — offering up complicated and narrow case law as the standard mode of thinking — citizens rarely observe its deeper designs and intentions.

One fruitful way, however, to look at the different parts of the Bill of Rights is in terms of how they were intended to preserve the spirit of republicanism. Though they are pithily written, there is great depth beneath the individual amendments and their clauses.

Laws affect the mind in indirect, non-obvious, but predictable ways. In this regard, the amendments represent different parts of the republican character that the Founders hoped to create and protect. One example is the Second Amendment. Not merely some traditional holdover from a barbaric time, it aims to safeguard the vigilant and manly spirit proper to self-government — the kind that knows its rights are its own and has the capacity and preparation to protect them.

From this perspective, the freedoms of speech and the press are perhaps of the greatest importance. Among the goals of free speech is to cultivate the virtues of deliberation among citizens so that ours can be a government by “reflection and choice,” as Hamilton says in Federalist 1. And as Benjamin Franklin explains, the freedoms of speech and press are directed specifically toward “discussing the Propriety of Public Measures and political opinions.” In other words, rational, political speech is meant to be protected and honored.

The Founders’ understanding of free speech and press presumes, encourages, and develops certain virtues necessary for political freedom: namely, the ability to reason independently and, in turn, to speak and defend oneself rationally. Man’s pride is therefore connected to his reason rather than to other authorities.

This culminates in a certain human type, a new image of reverence, one of self-possessed manliness. Just think of the writers of the Federalist. This is contrary to, for example, barbaric manliness, which is prepared to tear others to shreds over disagreement of opinions and hurt pride.

The community this ideal creates is one where human beings share their rational facilities in common, as opposed sharing only ethnicity, tribe, religion, or ideological partisanship. One respects others as rational and equal beings.

Yet this means that only certain kinds of speech are respectable. As Joseph Story writes in his Commentaries on the Constitution of the United States:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.

Freedom of speech and press have limits in part because, as Story later says, man’s speech may sometimes be directed by the “wantonness of his passions, or the corruption of his heart.”

For various traceable reasons, however, speech in America has come to mean the expression of unreasoned inner feeling — no matter how raw or thoughtless — which has resulted in the closing off of rational speech. The effects of this change are seen especially on university campuses throughout America. There, the new standard terminates in an odd combination of tyranny and cowardice — one no longer claims to convince the mind but to force its assent without need for self-justification. This speech petulantly demands to be honored, rather than earning respect by its intrinsic force and reasonableness.

We have in part arrived at this state because of our deficient understanding of the law’s effects on the human character. This stems from an error which holds that law protects any kind of non-rational volition. The burning of the American flag, pornography, and various forms of vulgarity antagonistic to republican habits of character are justifiable. Over time, praise is even attached to them and shamelessness is called courage.

Contrary to Franklin and Story, this alteration in the meaning of speech presumed that decency in citizens is unassailable: All will remain gentlemanly and, if not, then decency is durable enough to endure of its own accord. Yet this may be contrary to the origins of decency. Law encourages and at times even compels decency. The Founders’ understanding of speech tacitly acknowledges the power of ignorance, vanity, and other passions over the mind. The law can sometimes correct these tendencies — if not outright, then by showing honorable examples. In this view, the law maintains and upholds decency rather than merely relying upon it without bolstering it. But by misunderstanding its own aim, the law undermines its power.

Those who deny the effects of obscenity, for example, like to flatter themselves that their own civility is a self-conscious act of will for which they congratulate themselves. They do not see that it is caused by the forces that have civilized them, forces that in fact have a relatively weak hold and can be subverted in time.

Besides these effects on the character, this new interpretation of speech often puts the law into disrepute. Can citizens revere or believe to be sacred a law if it leads to unjustified insolence and foolishness? On this question, Tocqueville observes:

One does not depend on laws to reanimate beliefs that are extinguished; but one does depend on laws to interest men in the destiny of their country. One depends on laws to awaken and direct that vague instinct of the native country that never abandons the heart of man, and in binding it to daily thoughts, passions, and habits, to make of it a reflective and lasting sentiment.

If the laws are not lovable because they are unintelligent, they not only lose their respectability and power, but one’s nation begins to appear contemptible — at least to many decent and serious citizens, on whom its existence to a great degree depends.

This new understanding of speech also undermines citizens’ sentiments for one another by creating contempt and hatred among them rather than fastening their bond. Citizens demand to be listened to not on the basis of a respect for each other’s rational faculty, and therefore the anticipation that honest argumentation will take place; rather, the loudest voice and most shocking tongue often draws the crowd. Thus the majority’s moral power can be leveraged against its own interests.

The point on which judges must use more than merely legal reasoning and demonstrate a capacity for psychological analysis and foresight — that is, become a statesman for a moment — is in thinking through the effects of particular laws on the human character. Judges must consider the effects of their interpretations on the character of the citizens, which in turn influences their ability to sustain the regime that they aim to preserve. 

This piece originally appeared in National Review