Erwin Chemerinsky is a left-of-center legal scholar and prolific author who is now Dean of the University of California’s Berkeley School of Hall, formerly known as Boalt Hall (named after a prominent 19th century attorney, John Henry Boalt, whose widow funded construction of the school’s initial building over a century ago). Berkeley’s law school was re-named—before Chemerinsky became Dean on July 1 , 2017—in part due to sensitivity regarding its namesake’s opposition to Chinese immigration and advocacy of the 1882 Chinese Exclusion Act. I raise this because the issue of heightened “sensitivity”—frequently resulting in the removal or re-naming of historical memorials—currently roils higher education in a number of ways, including the suppression on campus of viewpoints considered to be objectionable.
Editor’s note: David Deavel, editor of St. Thomas University’s quarterly, Logos, invited me to contribute an essay on Orestes Brownson‘s remarkable defense of religious liberty in his 1864 essay “Civil and Religious Freedom.” Posted below is a modified version of my essay published in the Fall edition of Logos.
Orestes Brownson’s wonderful essay “Civil and Religious Freedom” (1864) provides a remarkable philosophical and constitutional defense of religious liberty. The essay bears the particular merit of bridging the traditional American understanding of religious freedom as an individual right with the corporate notion of freedom of the church, which acts, Brownson argues, as the shield of religious liberty. In this way, Brownson provided an original, robust defense of American constitutionalism and religious freedom.
A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
The ACLU has decided to not to defend the First Amendment rights of those who carry firearms to their protests. This decision betrays its historical commitment to protecting the free speech rights of all. First, people do not lose one constitutional right because they are exercising another simultaneously. Second, free speech doctrine offers ample room to address any problems caused by carrying guns.
The Second Amendment is as much a part of the Constitution as the First. And while the Supreme Court has not yet so held, the best scholarship suggests that the Second Amendment includes a right to possess arms outside the home in some fashion. After all, the right is to “bear arms” as well as to keep them. But even were there no such constitutional right, so long as having arms outside the home is lawful, a state or a municipality cannot condition that statutory right on giving up First Amendment freedoms. To do so would be a classic unconstitutional condition.
In any event, First Amendment doctrine has resources to deal with threats of violence should carrying guns raise them. For instance, it would be a reasonable time, place and manner regulation to separate protesters and counter protesters, if groups are armed.
Indeed, Charlottesville could have done so, had it pursed a more sensible legal strategy last week.
The rule of law is not at all the same thing as the rule of laws, or the preeminence of law in our lives; indeed, they are almost opposite, insofar as one of the objects of the rule of law is to make the legally permissible and impermissible knowable to the citizen in advance. Where there are so many laws that even highly specialized lawyers have difficulty in keeping up with the provisions in their own area of specialism, the rule of law declines, and litigators rush in where common sense fears to pronounce. This superabundance of laws exists in many places around the world today, and needless to say it flatters the self-esteem of legislators and judges. It makes them the arbiters of our existence. It also makes the rest of us wards of the court.
Throughout the two-year history of the Massachusetts case in which a young woman was charged with involuntary manslaughter for encouraging her boyfriend to commit suicide, there was a nationwide discussion of the implications of the case for free speech under the Constitution’s First Amendment.
One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.
For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens. The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state. The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.
But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.
The Benedict Option, Rod Dreher’s much-discussed book, has largely been portrayed as a way to rethink Christian political and cultural engagement. How, exactly, the rethinking ought to play out has been debated incessantly, albeit often superficially, as only the Internet can ensure. Dreher does attempt to make clear, in any case, that Christians should focus “all the attention they have left for national politics” on expanding religious liberty. Religious liberty is naturally necessary for any religious undertaking and Dreher is right to recognize that without it no one could take his advice to focus on cultivating local politics and community. But…
Minimum wage laws have forced restaurants to raise prices and lose business. Many owners are not happy. One recourse is to tell customers about the effects of these laws on their pocketbook. Some restaurants are posting a minimum wage surcharge on their menus, so that diners recognize the reasons that establishments have jacked up their prices.
But in some jurisdictions this surcharge is illegal. For instance, in New York a statewide law bans the practice even if notice is prominently displayed. Such laws violate the First Amendment and block one of the best ways of getting the public to debate the costs of minimum wage laws.
Commercial speech gets somewhat less protection than political speech under current doctrine. But even if this surcharge and explanation were (wrongly) given only the protection afforded to commercial speech, such laws would still be unconstitutional. Commercial speech, like advertising, cannot be prohibited unless the restriction is “narrowly tailored to advance a significant government interest.” But it is hard to see any significant government interest advanced by these laws.
In any event, the speech at issue here is political speech, because it provides information about the effects of the minimum wage. If so, it can only be suppressed by a compelling government interest, like forestalling violence.