Virtue, freedom, and the First Amendment.

• Author: DeGirolami, Marc O.
• Position: Abstract through II. The Revised Account of the First Amendment A. Freedom Under the First Amendment Is Not an Intrinsic Good of American Political Life but Part of a Larger Political Problem, p. 1465-1490 - Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

"Despotism may govern without faith, but liberty cannot." (1)

ABSTRACT

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody's freedom of thought, belief, speech, and religious exercise as basic goods--as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. This Article offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means--a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem--the problem of how to allocate a resource in civically responsible ways, so as to limit freedom's hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.

Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture's core values are not the First Amendment freedoms themselves, but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.

One prominent group has invented a new legal category: "enumerated rights Lochnerism." These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court's post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.

Part I of this Article presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem--the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.

But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues--exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy--are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court's post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns's arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment "absolutism. "

The Article concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual-libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone--for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

INTRODUCTION

The modern First Amendment symbolizes the triumph of freedom. It embodies the idea of freedom as a fundamental and self-evident good of contemporary American society, one so obvious as to need little defense. At the level of legal doctrine, the Supreme Court has only occasionally doubted the expansive protections of religious freedom (2) and freedom of speech that it has found in the First Amendment over the last century. (3) At the level of ideas, the contest between communitarian or virtue-promoting views and libertarian views of the purposes of the First Amendment is widely believed to have been decided conclusively in favor of the latter. The First Amendment protects and promotes every individual's freedom of thought, belief, speech, and religious exercise as basic goods--as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those relatively rare cases when the exercise of a First Amendment freedom exacts an intolerably high social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. Some may contest or quibble with certain of its details--indeed, some have (4)--but it is serviceable as a general statement of the prevailing understanding of the First Amendment's purposes and functions. The conventional account of the First Amendment has had profound effects not only on American law and politics but also worldwide, providing the foundation for new and revised accounts of religious and expressive freedom in international secular and religious documents. Some of those effects have been beneficial; others have not. This Article largely avoids these evaluative issues and instead offers two challenges to the premises of the conventional account.

First, the development of the First Amendment over the past century suggests--against the conventional account--that freedom is not an American sociopolitical end. It is a means--a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. To put it another way, freedom (How much? What kind?) is not a social solution but instead gives rise to a social problem--the problem of how to allocate a resource in civically responsible and healthful ways, so as to limit freedom's hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing as a society altogether. Freedom, as Tocqueville said, cannot govern without faith. (5)

The particular responses to the problem of virtue and freedom offered by the Supreme Court over the last hundred years have helped to shape--and transform--American society. (6) There is therefore no contest between the communitarian or virtue-promoting and the libertarian views of freedom under the First Amendment. Contestation requires rivalry, but these are not rival perspectives about freedom at all. Rather, the supposed triumph of the libertarian First Amendment, in combination with the broad expansion of the American regulatory state and the ever-hardening political commitment to equality as the preeminent constitutional value of our time, has steered American law away from one set of political commitments and toward another. The First Amendment of the conventional account has not maximized freedom for all people and groups. It has instead promoted a new set of views and dispositions about the nature of the virtuous legal and political society.

Second, as it becomes entrenched, the new legal culture is increasingly finding the conventional account of the First Amendment uncongenial. It no longer needs that account to achieve its most important aims. Even more, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture's core values are not the First Amendment freedoms themselves (in this it resembles the legal culture that preceded it) but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and even intentionally promoted. Proponents of the new legal culture in consequence have argued for aggressive new limits on First Amendment freedoms.

One newly prominent group has invented an entirely novel legal category: "enumerated rights Lochnerism." These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment. In the religion clause context, for example, they claim that religious...