- The Washington Times - Sunday, June 16, 2002

Americans have grown accustomed to seeing judicial officials strike down laws and government regulations in the name of preserving adequate breathing space for expression. Again this term, which is quickly coming to an end, the U.S. Supreme Court used it judicial review powers to overturn legislative action that might "chill" expression that was far from the minds of James Madison and the other members of Congress who labored over the language of the First Amendment.
Following on its tough handling of the Communications Decency Act in a 1997 case, the court declared in April that critical provisions of the Child Pornography Prevention Act were overbroad and unconstitutional (Ashcroft vs. Free Speech Coalition). One month later the court remanded a challenge to the Child Online Protection Act with the observation that the statute might be unconstitutionally vague and thus would not be able to survive strict scrutiny (Ashcroft vs. ACLU). The message being sent by the Supreme Court has not been missed by lower courts.
Following the lead of the U.S. Supreme Court, state and federal judges have been systematically shrinking the government's, and hence the people's, ability to act in the name of self-defense or self-preservation since the 1960s. Earlier this spring, for example, the U.S. 9th Circuit Court of Appeals upheld a lower court decision overturning the conviction of an Arizona man under a law designed to curb gang-related activities. The court concluded in McCoy vs. Stewart that the advice that the defendant gave gang leaders about how they could improve the efficiency of their activities was "abstract advocacy of lawlessness" protected by the First Amendment.
The matter-of-fact way in which decisions favoring individual autonomy and expression are handed down is as striking as the substance of many of the verdicts. Perhaps no better evidence of the weddedness of the judiciary to this thinking can be found than the opinion written by three Republican nominees to the court (Justices Sandra Day O'Connor, Anthony Kennedy and David Souter) in the last major abortion case, Planned Parenthood of Southeastern Pennsylvania vs. Casey (1992). Their joint opinion equates the right to privacy with the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Not only does this passage make no reference to the duties or responsibilities of citizens, it leaves minimal space for government and society to act in the defense of collective interests.
Until recently, terms such as human dignity, autonomy and personal identity did not constitute the critical language of constitutional law. Use of all or most of these terms, however, is a virtual requirement for a scholarly work in constitutional rights to be taken seriously today. These works, in turn, mimic what has become the standard rhetoric of the judiciary, especially in cases involving appeals to privacy rights and freedom of expression. As evidenced by the Casey case, even justices appointed by moderate to conservative Republican presidents have embraced the rhetoric of human autonomy, personhood and identity creation.
Although a common practice, there is a troublesome side to the incorporation of philosophical principles of human dignity and autonomy into constitutional decisionmaking. Sober constitutional reasoning needs to address practical matters of governance and must contend every day with the challenge of balancing competing appeals to individual rights on the one hand and to decency and competence in government on the other. Among other things, the space that courts have created to accommodate individual autonomy has come at the expense of governmental and societal interests that historically rated considerable weight in constitutional jurisprudence.
It is particularly important that judicial officials remember that they are charged with adjudicating civil, not "natural," rights. A sensible society will see that civil rights are commensurate with the demands of civil society. Properly contrived civil rights have civil duties and responsibilities as their correlatives. While it is not difficult to imagine what duties ought to complement protection for property or contract rights, it is not so easy to imagine what responsibilities correlate with a right to personal autonomy. It is one thing to think of freedom of speech in terms of the demands of civil society, and another to connect speech with values creation and affirmations of individual autonomy.
By limiting what decisions we can make collectively, modern jurisprudence invites and, indeed, encourages Americans to create their own little "worlds" or "spaces" where prickly individualism too easily can supplant public deliberations about the common good.
For their part, the American Founders believed people should seek the satisfaction that comes from participating in the great act of self-government, which involves making fundamental decisions about what things their society should encourage (e.g., respect for copyright or trespass rules) and what things it should discourage (e.g., pornography or certain types of offensive conduct).
It is too late in the day for members of the judiciary to excuse themselves from the task of evaluating rights in a political context by claiming they are not part of a "political" department. If judges wish to make decisions about fundamental matters that shape the way of life of the people, they have a responsibility to consider how their decisions will affect civil society. Just as there has been a tendency for courts to abstract rights from responsibilities, so the judiciary has sought to abstract from its responsibility for preserving the democratic bona fides of the constitutional system, in other words, its obligation to ensure that the people enjoy meaningful, as compared with meaningless, collective self-government.
The Founders understood that people are ennobled and gain useful habits (e.g., self-discipline, moderation, etc.) when they are entrusted with the power to make critical decisions about the things a society should value and promote and the things that should be discouraged. The endangerment of meaningful self-government is the great cost that comes with the modern jurisprudence of rights a jurisprudence that dangerously abstracts from the requisites of decent and competent government in its desire to discover and expand "space" for human autonomy and identity creation.
The rulings in cases like Ashcroft vs. Free Speech Coalition and McCoy vs. Stewart ought to provoke the judiciary as well as the general citizenry to think about whether society is being asked to bear unreasonable costs in order to accommodate, in the words of the Casey opinion, a "right to define one's own concept of existence."
There is, in short, something profoundly troubling about constitutional jurisprudence that compels government and society to compete with abstract principles of individual dignity and autonomy against which almost nothing can stand.

Roger Barrus is Elliott professor of political science and David Marion is director of the Wilson Leadership Center at Hampden-Sydney College.


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