The Role of the Court
The First Amendment and the Future of American Democracy.
by Walter Berns.
Basic Books. 266 pp. $12.50.
The recent First Amendment decisions of the Supreme Court have met with criticism both from those who think the Court has gone too far and from those who think it has not gone far enough. Walter Berns, who on the whole belongs to the former group, says that many of the Court’s recent decisions have incorporated a prejudice that may have very serious consequences. “The Court,” he charges, “in the name of civil liberty, is steadily eroding the conditions of civil liberty to the point where it is appropriate to wonder about the future of liberal democracy in the United States.” Berns believes (like others before him), that the Court is a teacher in a vital national seminar, and that in its decisions on the free exercise and establishment of religion, on free speech and expression, on obscenity and pornography, it has taught badly and undermined essential values:
Whether the protection of the many from the few will conduce to a decent self-governing country of the sort the Founders hoped for depends . . . on the character of the people constituting the many; and that character depends on the condition of religion, the family, the schools, and on the strength of the people’s attachment to republican principles. The Court in its First Amendment decisions has proceeded in blissful ignorance of this, promoting pornography, . . . casting aside . . . the conventions of decency . . .; refusing to permit financial support to religious education and subtly undermining the venerable character of the Constitution itself.
With regard to religion, Berns argues that the original intent of the First Amendment, as revealed in the debates of the first Congress, was to protect the right to be religious; although the Founders forbade laws respecting an establishment of religion, they were careful not to forbid support to religion on a non-discriminatory basis. Extreme separationists like Madison and Jefferson aside, the first Congress and George Washington were in favor of the official encouragement of religion because religion, in a phrase of Washington’s cited several times by Berns, provides the “indispensable” support of those “dispositions and habits which lead to political prosperity.” In recent decisions, however, the Court has forgotten this; it has relied too much on Madison and Jefferson and has weakened organized religion by striking down non-discriminatory aid. At the same time, it has elevated “vestigial religious enthusiasm” (evidenced in conscientious-objector cases like Seeger and Welsh) to a status that neither was intended nor is deserved.
The First Amendment, according to Berns, does not require government to be “neutral” (a term used by Justice Brennan) “between religion and irreligion”; but in its attempt to be officially neutral, the Court has actually emboldened irreligion. Berns asks his readers whether it is a good or bad thing for children to attend schools where they are taught the Ten Commandments, and suggests that it is “better that teachers be seen leading prayers than agitating for some of the popular causes of our day” (these are the only two options he considers).
Turning to free speech, Berns argues, on the historical record, for a distinction between religious speech and political speech. Although the Founders accorded absolute freedom to religious speech, they limited the scope of political speech and therefore left intact the grounds for governmental intervention against a variety of forms of speech that do not contribute to “a more perfect polity.” The Founders were comfortable with the distinction between liberty on the one hand and license or “licentiousness” on the other. Contradicting conventional wisdom, Berns says we misread the Virginia and Kentucky Resolutions, written in reaction to the Alien and Sedition Acts, if we take them as “libertarians” do—as challenges to the general power of government to punish seditious libel and other forms of “harmful” speech. Berns contends that the Resolutions were challenges only to the power of the national government to punish seditious libel; the authors of the Resolutions were content to leave this power to the states. Justice Marshall saw this, so even did Madison and Jefferson, and in the light of it the Court should reconsider its own libertarian tendencies.
In general, Berns maintains, the Supreme Court has helped to distort what should be the proper view of restraints on speech, and it has thereby nurtured a destructive permissiveness. Berns casts Justice Holmes as the (unlikely) hero of the “libertarians.” He takes specific issues with Holmes’s seminal view of free speech, expressed in the Abrams dissent, that “the ultimate good desired is better reached by free trade in ideas [and] that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .” Berns says this doctrine encourages everything to be spoken. Since the truth that wins in a free and equal competition may not be consistent with republican principles, however, such latitudinarianism is fraught with risk. Berns thus characterizes Holmes and his followers as supporters of the doctrine that justice amounts to the rule of the stronger, and as unwitting supporters of the tyranny of the (winning) majority. As for Berns himself, he does not believe that all political speech should be protected; he questions especially whether freedom of speech should be granted to those who would deny freedom of speech to others.
On obscenity, Berns consults the historical record again, and again finds the Founders agreeing with him. The Founders took it for granted that obscenity and indecorous speech would not be constitutionally protected; they even adopted rules for the punishment of inappropriate speech at the Constitutional Convention. Law should teach civility by making certain kinds of incivility public offenses. Berns admits that there will be cases when the power to judge “indecorous” speech by its substance will be abused—as Madison would have said, “precedents established are so much positive power”—but the answer to this is responsible and plentiful Supreme Court review. For Berns, the public use of obscenity and the publishing of profanities, forms of speech “legitimated” by recent Supreme Court decisions, allow indecorous, unwholesome, and unhealthy speech to go unpunished. When the Court fails to teach, for example, that “to speak politically is to speak politely,” it legitimates and thereby encourages indecorous speech. This contributes to the vulgarization of American life and to the demise of republican principles and virtue.
Berns’s argument, an argument for what is surely a necessary decency in public life, is strong and should be taken seriously, but it is inflexible, one-sided, and overstated. It is true that the Court at times has strained and overcompensated to protect alleged First Amendment rights; even when (as the late Alexander M. Bickel put it) the Court has erred on the side of right, it has erred. It can also be said that at times the Court has done violence to some historical understandings and some original intentions of the Founding Fathers. But this is not always so clearly the case as Berns proposes, and when he urges original understandings that push aside those of Jefferson and Madison, his own argument becomes strained.
Concerning religion, first of all, Madison’s position in the Memorial and Remonstrance, though extreme, has greater weight than Berns allows it. Madison believed, with Washington, in the support religion gives to republican virtue, but he did not believe religion required any particular indulgence from the state in this effort. In fact, Madison regarded it as an “unhallowed perversion of the means of salvation” for the civil magistrate to “employ Religion as an engine of Civil policy.” Religion, for Madison, survives when “left to its own evidence and the ordinary care of Providence”; he worried that civil indulgence and support for religious belief foster “a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.” Interestingly, taking Madison’s position would, for one thing, relieve the Court of the sort of burden presented by the conscientious-objector cases. More importantly, most evidence about the current state of religion suggests that, “unaided” by the Court as it has allegedly been, it is far from heading toward oblivion.
With regard to free speech, the Virginia and Kentucky Resolutions may well have been framed in opposition to the power of the national government to punish seditious libel, but this may be evidence of a wise political strategy on the part of Madison and Jefferson rather than a revelation of the challenge they intended to make against a power of the state. There is substantial evidence in support of such a “libertarian” intent behind Madison’s and Jefferson’s response to the Alien and Sedition Acts.
As for indecorous speech, the Founders did indeed adopt rules for the chastisement of those who engaged in such speech at the Constitutional Convention, but they certainly did not strap the debates that took place in the newspapers following the convention. Impolite and unwholesome speech is not a monopoly of the 20th century: the papers, gazettes, and pamphlets published during the period of debate over the new Constitution offer many examples of imaginative indecorousness and lively vulgarity. Furthermore, not all the Founders were as comfortable as Berns is with the distinction between liberty and license. Madison wrote: “The distinction between liberty and licentiousness is still a repetition of the Protean doctrine of implication . . . ever ready to work its end by varying its shape.”
Apart from these historical considerations, Berns’s forceful argument requires three qualifications. First, the teaching and tradition represented by the Holmes dissent in Abrams are neither as pernicious as they seem nor have they lacked substantial support from other authorities. One might add, as well, that to Holmes the idea of the free marketplace was itself a republican principle, a principle that is clearly not subject to the will of the majority. Brandeis, Frankfurter, and others shared and defended this point of view. Marshall regarded the tolerance of the highly offensive, impolite, and indecorous as a “calamity,” but as a “calamity incident to the nature of liberty.” The dangers of not subscribing to something like the Abrams notion are realized by Berns himself, who, in his desire not to “tolerate the intolerant,” moves uncomfortably close to the doctrine of “repressive tolerance” enunciated by Herbert Marcuse. The fruits of this doctrine were seen in the late 60’s, when free speech was denied on college campuses and elsewhere to government spokesmen and to those whose ideas dissented from the then-reigning ideology.
There is, moreover, a problem with Berns’s invitation to the Court to take a more active role in the maintenance of civility. While he urges the states and the federal government to exercise more freely the power to punish a variety of forms of unwholesome speech, he recognizes that this exercise of power will be abused. His recommendation, therefore, is that the Court play a larger and more active role. But surely the Court is already doing too much.
Finally, Berns offers no evidence for his proposition that the Supreme Court plays a substantial role in the nurture of republican principles by affecting the moral disposition of the people. Do people really become lascivious because the Court refuses to take pornography off the stands? Even apart from the fact that the Founders explicitly rejected the role of morals-keeper for the Court, is it true that the Court is or can be as influential a moral or counter-moral force as Berns claims? As in the remark about homosexuality that was made at the time of the Wolfenden Committee Report, pornography and indecorousness are not compulsory. It would seem that the choices and actions of individuals, including parents, teachers, and (as Berns too notes) college professors, have more to do with the nurture of decency than anything the Court does or can do. The kind of decent, wholesome society that Berns wants to see is probably not, in the end, likely to be either brought into being or killed off by Supreme Court decisions concerning freedom of speech. As Paul Freund has observed, “Regeneration comes from within.”