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.

3. Rights, reinterpretation, and reform

Reconstructions of Constitutional rights are a popular academic topic, but reinterpreting the Constitution should be a disfavored reform strategy. Reconstruction is piecemeal, changes have holistic significance, and unexpected consequences are apt to defeat the reformers' aim. Consider the construction of the First Amendment's free-speech right and the hypothetical legal consequences of accepting Justice Hugo Black's superior First Amendment jurisprudence.

Our First Amendment jurisprudence bifurcates free-speech policy into preventing viewpoint discrimination and opportunity or volume constriction. The courts use, to a first approximation, strict scrutiny for discrimination by viewpoint and an intermediate level of scrutiny for time, place, and manner constraints. (See Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46.) Respected scholars advocate various analyses, which must limit First Amendment liberty because exercising “no restraint” literally would induce cacophony. (See, e.g., McDonald, Speech and distrust: Rethinking the content approach to protecting freedom of expression. (2006) 81 Notre Dame L. Rev. [advocating balancing test].) Justice Black's speech-versus-act approach can't, as he hoped, avoid construction, not for the sophistic reason that speech is action but rather because restraints on speech-related acts constrain associated speech. The vagueness subtracted from "speech" is added to the vagueness of "restrain." Just as one act is more or less speechlike than another, one measure is more restraintlike, but no objective metric or guidance prescribes a dichotomy. Yet, Black's approach is superior even it if doesn't achieve the hoped for constructionless textual interpretation. Black specifies the behavior the First Amendment protects as speech differently. On restricting seditious speech, for example, Black rejected any balancing test, even the clear and present danger test modified by the currently leading case, Brandenburg v. Ohio (1969) 395 U.S. 444. Black contended the law could suppress calls for unlawful antigovernment action only when immediately obeyed commands turned speech into the act of incitement. Although viewpoint neutrality and volume maximization don't formally conflict, Black's First Amendment jurisprudence emphasizes viewpoint neutrality protection at volume maximization's expense.

Sheer jurisprudential elegance favors Black, and strong arguments tell against the prevailing view. Where does the Constitution's text distinguish between intermediate and strict scrutiny? The test comes from an inference about intended policy, weighing viewpoint discrimination and volume constriction. Does the policy inference come from social practices contemporary with the Founders? Then we assume the Constitution capable only of enshrining social practices, rather than changing them. We may also have to assume that law authorizes whatever a majority of its proponents believe, instead of being limited to that portion of their beliefs they sought to codify. By comparison, Black's view escapes Occam's Razor by avoiding multiplication of a single right's aims. Black's interpretation also seems a stronger bar to oppression. Black's literal interpretation of "speech" minimizes the restraints applied further than Brandenburg v. Ohio, supra, and invalidates all defamation law and anti-obscenity laws. But this same concrete interpretation prevents giving speech the broad sweep of contemporary First Amendment jurisprudence in extending it to acts speechlike only in their communicative intent. While Black would sacrifice some decisions civil libertarians are fond of, explicitly verbal communication is still ideology's main vehicle, and suppressing speech based on viewpoint is historically the main motive for suppressing speech to obfuscate and deceive.

The motive for the volume-maximization policy is hard to understand on its own terms because volume maximization serves a different right. Speech restrictions most disadvantage those with fewest means. Intermediate scrutiny of nonideological speech constraints protects the expressive rights of citizens without means to circumvent time, place, and manner restrictions. Because the courts haven't used economic status to define any suspect class, the First Amendment's recentering without broadening the Fifth Amendment would delete Constitutional protection for accessible expressive outlets.