- The Washington Times - Thursday, April 27, 2000

Next year is the 250th anniversary of the birth of James Madison, the principal architect of both the American Constitution and the Bill of Rights.

Two recent events, coming within days of each other at the end of March, offer an opportunity to assess the condition of the political system that he did so much to create. On one side of the Potomac, the Senate defeated a flag desecration amendment, while across the river the nation heard charges from the highest-ranking woman in the military that she had been sexually harassed by another army general.

Those who voted against the flag amendment did so out of a commitment to free expression, which according to prevailing opinion is protected by the First Amendment. The First Amendment prohibits Congress from passing any law abridging freedom of speech. It makes no mention of expression. The two words are not synonymous: "speech" is rational discourse; "expression" can refer to a grunt, a shout, or even a gesture, such as nude dancing or the burning of a flag.

At the heart of Madison's protection for speech is a desire that people reason together for the common good. Expression, which registers emotion or passion, relates only indirectly, if at all, to common reasoning. As has been noted by others, flag burning is peripheral, not essential, to the communication of ideas.

Substituting expression for speech changes the meaning of the First Amendment as it was originally drafted by Madison. The new meaning was nicely captured by Hilary Swank's recent declaration, while receiving her Academy Award for Best Actress in "Boys Don't Cry," that a society that affirms personal dignity must tolerate the many varieties of expression that accompany the individual pursuit of authenticity. Everyone must be allowed to let it all hang out, whatever his or her "it" might be. Politics becomes an arena for self-actualization having more to do with psychotherapy than with the search for the common good. Venting anger might make people feel better; it is not likely to help them deliberate better. Unrestrained expression is in principle destructive to common deliberation and, hence, to democratic self-government.

Free expression has come to substitute for free speech, for senators as well as movie stars, because it sounds more democratic. Speech involves reason, in the form of arguments, and people do not speak, or reason, equally well. Some are more persuasive, because they are wiser or just more clever.

In contrast, people are equal in their passions or feelings. One person's feelings are not any better than anyone else's. No one can refute or even argue against another's feelings. Feelings as such are neither true nor false, right nor wrong. They require no justification, and indeed they admit of none.

The popular defense of uninhibited expression that accompanied the defeat of the flag desecration amendment is in sharp contrast to the reaction of outrage that followed the announcement that the highest-ranking woman in the military was a victim of sexual harassment. As in other high-profile sexual harassment cases, Lt. Gen. Claudia Kennedy's allegations have prompted calls for a decisive and unmerciful response that would drive the offensive behavior from our midst. Unlike the attacks on the flag desecration amendment, the response this time points in the direction of a "no holds barred" or "take no prisoners" policy.

It goes without saying that sexual harassment deserves a serious response. What is striking, however, is our apparent failure to recognize that the policy of encouraging unrestrained expression in the name of individual authenticity, combined with the contemporary desire to break down natural divisions in the name of equality, means increasing amounts of power must be invested in government agencies that are responsible for controlling unwanted behavior. Because of its reach, it is the national government that has become the beneficiary of the calls for more pervasive governmental involvement in protecting us from ourselves. It does not take the wisdom of a Socrates to conclude that Americans are given to more violent swings between tolerance of licentious behavior and the endorsement of increased national supervision of our lives than Founders such as James Madison would have considered desirable, and there is something disturbing in this development.

The natural forces that we are cheerfully releasing on one side are necessitating the harshest forms of legal retaliation on the other. A society can not inflame powerful passions and not expect to need draconian measures to contain what is being unleashed. The cost of dangling natural temptations in front of imperfect human beings who no longer are restrained by conventional mores is the uncompromising use of tough laws to punish persons who violate the new set of taboos that have been constructed to advance libertarian and egalitarian ends.

Since the attack on conventional mores is part of the general quest for greater personal freedom and equality, and the commitment to individual authenticity is now tied to having democracy at all, there is reason to fear that the situation is likely only to worsen, not improve.

Madison undoubtedly would counsel us to reconsider the cultural and political forces we are unleashing. He held the purpose of government is to subject the passions to the rule of reason, not to liberate them from it.

In Federalist No. 49, Madison declares the proper order of things is that the "reason, alone, of the public, ought to control and regulate the government," while "the passions ought to be controlled and regulated by the government."

The purpose of the system of checks and balances, which according to Madison in Federalist No. 51 sets ambition against ambition, is to tame the passions and give weak reason a better chance of guiding the councils of government. In like fashion, Madison's defense of the extended republic in Federalist No. 10 is grounded in a desire to encourage governing majorities to coalesce around principles of justice and the common good. In sum, Madison sought arrangements that would moderate factious impulses, thus minimizing our reliance on excessive governmental force to restrain impulsive behavior.

There is, in short, a high price to be paid for our easygoing approach to personal expression and the pursuit of individual authenticity. That this fact would come as a surprise to many Americans is evidence of the extent to which we have forgotten the wisdom of the Founding. Our tendency to seesaw between anarchic impulses and pervasive national regulation of public and even private affairs bodes ill for the republic that Madison and the other Framers of our Constitution carefully crafted in 1787 precisely to avoid the problems of anarchy and tyranny.



Roger M. Barrus is Elliott Professor of Political Science and David E. Marion is director of the Center for Leadership in the Public Interest at Hampden-Sydney College in Virginia.

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