- - Wednesday, October 25, 2017

Our Constitution recently turned 230 years old. In some quarters, however, citizens have begun to question whether the Constitution still ought to be the law of the land after all this time. We’ve heard cries that the First Amendment shouldn’t mean all that we thought it meant, that free speech does not mean protection for speech that offends or harms the sensibilities of others. We heard this in the wake of Charlottesville and even before on college campuses, where many of our soon-to-be leading citizens have claimed that speech they deem undesirable and harmful ought to be silenced and those who would choose to listen to such speech obstructed.

Where, exactly, does the freedom of speech fit in to our regime of self-government? Is this freedom and all that it was thought to entail still essential to the success of our Constitution?

As I have argued in my new book, “A Debt Against the Living: An Introduction to Originalism,” the Founders recognized — rightly — that a constitution for a free society had to do two things to be worthy of the name of a constitution. The constitution they framed would first have to enable self-government, so that we the people could deliberate and reflect on the kind of society we want to be when it comes to most economic, cultural, moral and political issues. That means we have the right, for example, to engage with our representatives to request legislation that protects against discrimination in the workplace or on college campuses.

But the Framers recognized that it was insufficient for a free constitution merely to create a regime of self-government. It also had to protect our natural liberties. And these two goals are often in tension with each other. After all, it is often popular majorities that would infringe on the rights of others — akin to what we see on college campuses when students through collective actions try to infringe on the rights of their fellows, or as we saw in Charlottesville when people of good will tried to silence speech they believed to be (and which actually happened to be) abhorrent.

The Founders recognized that these two ends must be balanced, and balanced carefully. As Burke said, it is very easy to form a government — all one has to do is compel obedience. And it’s equally easy to establish freedom — all one has to do is let go the rein altogether. But to form a free government, one that balances these two competing ends, requires a powerful and combining mind. The Framers’ accomplishment is balancing these ends through ingenious mechanisms, such as the separation of powers, checks and balances, the division of federal and state power, and the enumeration of power.

But they also insulated from legislative reach a small handful of liberties they believed to be essential for the success of free societies. These included the right to be secure in one’s home, papers and effects; the right to a jury trial, to counsel, and to many other rights ordinarily afforded criminal defendants; the right to bear arms to provide a check on government tyranny; the right to exercise one’s religion; and the rights to speak one’s mind, assemble peaceably, and petition our representatives no matter what it is we are advocating.

That point is critical — the Framers understood that no matter the content of the speech, political speech in particular had to be protected. After all, if the government can decide to favor some speech and disfavor other speech, who is to say that the government will always be right? Congress infamously refused to entertain any petitions from abolitionists in the 1830s because the topic was too controversial. And the Postmaster General refused to circulate abolitionist literature in the mails in the South. When government is given the power to decide what speech shall be protected, the government will not always be on the side of justice or good policy.

That is why the government can’t choose to ignore the requirements for warrants, can’t deny someone a jury trial — and it can’t suppress political speech of any stripe. These rights are so essential for the success of a free society that these are the few rights the Founders insulated from popular control. And consider how few in number these insulated rights are! Unlike the constitutions of more modern times, which purport to protect rights to health care and education and a whole panoply of social goods, our Constitution protects very little. That is because the Founders knew that we would evolve and progress as a society, so they left much to our greatest right of all: our right to self-government.

But as for those rights they did protect, our society cannot succeed — or, at least, it cannot be free — without them.

Ilan Wurman is the author of “A Debt Against the Living: An Introduction to Originalism.”

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