5.11 Rights: appendages of government structures

(Eleventh in series: The interpretation of statutes and the denial of judges' powers.)

If the drift of constitutional construction conforms to the structural blueprint, then what about protective, as opposed to structural, constitutional doctrines? The constitutional blueprint describes much more than government structure, but if checks and balances lies deep within a constitutional blueprint that emphasizes the division of powers between government branches, then civil rights come to comprise an aspect of the structural division of powers. Regardless of "original intent," interpretation will drift toward a structural alignment between rights and governmental branches, exercise of some rights strengthening one branch and diminishing another; the reverse for other rights. Some easy examples: the writ of habeas corpus strengthens the judicial branch and checks the executive branch; procedural due process checks both the executive and judiciary and strengthens the legislature.

Free speech at first blush seems less amenable to a structural interpretation, but the apparent complexity comes from the two separate free-speech components, each playing a different functional role. Restricting free speech means both regulating the viewpoints expressed (content restriction) and regulating the amount of speech allowed (time-place-and-manner restriction). Power's Congressional exercise depends on public opinion, as monolithic swings enhance the legislature's ability to act. Viewpoint discrimination preserves a monolithic public, as is in the legislative interest. Interpreting the First Amendment as primarily against viewpoint discrimination is encouraged by the First Amendment's targeting Congress for its directive: "Congress shall make no law ... abridging the freedom of speech ..." While Congress instinctively favors viewpoint discrimination, Congress naturally opposes restrictions decreasing the quantity of speech. A huge volume of speech nourishes the swings of unified opinion that empower Congress. The threats to speech quantity come primarily from the executive branch, too much speech upsetting administrative quietude.

A system of checks and balances gives rise to checks nested within other checks, division of the legislature into two houses a high-level example. In smaller grain, the same regulatory system emerges for the exercise of rights themselves, one right checking another. Although First Amendment law isn't cast in the form of a balancing test, the reigning clear-and-present danger test essentially involves balancing.