The Chartered Rights of Americans: A Kirkian Case for the Incorporation of First Amendment Rights.

• Author: Sheahan, Luke C.

Traditionalist conservatives have often expressed hostility to the Supreme Court's First Amendment jurisprudence, perceiving it as an attempt to accomplish social change undertaken by the court's current justices while disregarding the original meaning of the Bill of Rights. (1) According to this account, rather than recognizing the provisions of the First Amendment to be part of a larger constitutional project that upholds social order and traditional institutions, the court interprets First Amendment clauses so as to undermine the basic structural logic of the Constitution itself. An advocate of this position is the figure many consider to be the godfather of American intellectual conservatism, Russell Kirk.

Kirk made a substantial contribution to a variety of scholarly and literary fields including political theory, history, fiction (especially Gothic horror), educational policy, and social commentary. An elaboration of conservative sentiment and thought provided unity to Kirk's disparate interests and direction to his prolific writing and thinking. In the area of constitutional history and theory, for example, Kirk declared that the American Constitution "has been the most successful conservative device in the history of the world." (2) But, though viewing the Constitution as a distinctly conservative achievement in general, Kirk took sharp issue with the Supreme Court's interpretation of the Bill of Rights, beginning in the early twentieth century, as applying not only to the federal government but to the state governments as well. For Kirk, the court's so-called "incorporation doctrine"--the notion that the Bill of Rights, including the First Amendment, were made binding on the states by the due process clause of the Fourteenth Amendment--undermined the conservative nature of the original constitutional order, introducing instability and discontinuity into the American constitutional system.

This article explores Kirk's interpretation of the First Amendment in light of his constitutional thought as a whole and proposes a way that conservatives may understand First Amendment rights as upholding Kirk's constitutional principles. It does not argue that incorporation is, contra Kirk, a conservative development, nor does it counter Kirk's position by appealing to the necessity of the Fourteenth Amendment to "complete the Constitution." (3) Rather, it suggests that despite some of its clearly unconservative jurisprudential origins and effects, the incorporation of the First Amendment may be interpreted and defended as a conservative development upon grounds amenable to traditionalist conservativism.

The crux of my argument is that the First Amendment rights of religion, speech, press, assembly, and petition were rights long taken for granted by the American people and practiced as if they had significant protection from federal, state, or even local regulation. In this way they are what we might call the "Chartered Rights of Americans," taking the term from Burke's famous description of rights in the unwritten English constitution as the "Chartered Rights of Englishmen." (4) They are rights that arose in the historic context of the American colonial experience and the early republic and ones that Americans have long enjoyed largely free of government censorship.

Even while conceiving of First Amendment rights as "chartered," as prescriptive in the unwritten American constitution, it is important to recognize that the manner in which the judiciary incorporated First Amendment rights and the arguments made on their behalf reflect liberal or even radical philosophical notions. Consider the following quotes from two of the court's prominent free speech cases: "[I]t is nevertheless often true that one man's vulgarity is another's lyric" (5) and "[free speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." (6) Both of these statements are anathema to traditional conservatism. The first reflects a relativism regarding moral standards for speech and manners, and the second suggests that instability is better than stability, implying in a manner reminiscent of Rousseau that disrupting a stable traditional political order will, ipso facto, unleash something better. In the liberal and radical mind First Amendment rights are essential to enabling such social disruption.

What is a conservative to do? An essential principle of conservatism as it relates to such developments is encapsulated in Kirk's dictum that "salvaging is a great part of conservatism." (7) Change happens--and not always for the better. Conservatives must be prepared to adapt to and, where possible, shape social and political fluctuations as they occur. As Kirk writes, "[c]onservatism is never more admirable than when it accepts changes that it disapproves, with good grace, for the sake of a general conciliation." (8) In this case, incorporation is a fact of modern jurisprudence; it is now interwoven into Supreme Court case history, having produced nearly a century of judicial precedents. Allegations of damage to the structural elements of the constitutional order are not questioned here. The doctrine of incorporation did contribute to the abrogation of the original constitutional relationship between the federal government and the states, and it was inspired by liberal and radical mindsets. But a conservative cannot be limited to lamenting changes with which he disapproves. He must make the best of his circumstances. An incorporated First Amendment is part of the circumstances within which a constitutionalist must work.

Below, I will describe the essential elements of Kirk's constitutional thought, including his defense of judicial interpretation as a means of constitutional change. Then I will outline the four principles that he describes as essential to a "desirable constitution." After that I will turn to a defense of an incorporated First Amendment, linking my points to elements of Kirk's constitutional thought, especially the four qualities he attached to a good constitution.

Kirk's Constitutional Thought

Kirk's constitutional thought, like the rest of his work, is animated by his conservative philosophy. While he barely mentions the United States Constitution in The Conservative Mind, a fact he explicitly notes, (9) he devotes several other works to an elaboration of the conservative nature of the American constitutional order. In The Roots of American Order, (10) Kirk argues that the story of American order, including its constitutional order, is the story of five cities: Jerusalem, Athens, Rome, London, and Philadelphia. Only by understanding that history can one understand the elements of the unwritten constitution that undergird American political existence, including the articles and clauses of the written Constitution. The Conservative Constitution, (11) re-published posthumously in a somewhat different form as Rights and Duties: Reflections on our Conservative Constitution, contains a series of essays that explore the intellectual influences and historical context of the American Constitution as well as judicial controversies over property rights, freedom of speech, religious liberty, and the like. Finally, in America's British Culture, (12) Kirk explains the profound influence of British literature, legal history, governmental structure, and mores in American life. According to Kirk, American culture is effectively British culture, and by extension American constitutionalism is essentially a particular late development of British constitutionalism.

Kirk believed that "every country possesses two constitutions, existing side by side, yet distinct. One of those is the formal constitution of modern times; the other constitution is the old 'unwritten' one of political compromises, conventions, habits, and ways of living together that have developed among a people over the centuries." (13) In the American Constitution Kirk perceived a culmination of previous centuries of constitutional and political development. This was for Kirk its essential strength. At the center of Kirk's argument is the contention that the success of the written American Constitution, the one sent to the states for ratification in 1787, is due to the fact that it is consonant with its unwritten constitution.

When forming the written constitution, a country must take into account the whole body of social institutions, political habits, and social mores that provide the foundational order upon which political society depends for stability and longevity. Only by carefully adhering to the underlying unwritten constitution can the written constitution "achieve in a society a high degree of political harmony, so that order and justice and freedom may be maintained." (14) The basic function of preserving political order makes all constitutions conservative. They must be conservative in this way to be constitutions at all. "But," Kirk writes, "the Constitution of the United States, over two centuries old, is especially and deliberately conservative of a social inheritance." (15)

Conservative Constitutional Change and Judicial Interpretation

No order is unchanging, as if it were passed down by a Lycurgus never to be altered. Whatever the patrimony of Jerusalem, Athens, and Rome, Western order changed as it filtered through London's historical experience. Likewise, the American inheritance of London's historical experience was not uniform. It was sifted as that experience crossed the Atlantic, mostly through the dissenters of English political and religious conflicts. Such change continues to this day, Kirk writes. "This American order is not immutable, for it will change in one respect or another as the circumstances of social existence alter." (16) Change happens, but, Kirk warns in his second canon of conservatism in The Conservative Mind, the...