Interpreting the Bill of Rights
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Interpreting the Bill of Rights


IN “DEMOCRACY’S
DISCONTENT,” I BEGIN WITH THE CONTRAST BETWEEN
TWO POLITICAL PHILOSOPHIES, ONE LIBERAL, THE
OTHER REPUBLICAN. THE MAIN DIFFERENCE
BETWEEN THE LIBERAL AND THE REPUBLICAN
PUBLIC PHILOSOPHIES LIES IN THE
CONCEPTION OF FREEDOM AND OF CITIZENSHIP
THAT THEY AFFIRM, AND THE LIBERAL
CONCEPTION TO BE FREE, TO BE A FREE CITIZEN, IS TO
BE ABLE TO CHOOSE MY OWN ENDS, WHATEVER THEY MAY BE,
CONSISTENT WITH RESPECTING A SIMILAR LIBERTY FOR OTHERS. IN THE REPUBLICAN
CONCEPTION, FREEDOM IS A MORE DEMANDING NOTION. TO BE FREE IS TO
SHARE IN SELF RULE, TO PARTICIPATE IN
SELF GOVERNMENT. NOT JUST TO GO AND VOTE EVERY
TWO YEARS OR FOUR YEARS, BUT TO SHARE IN SELF
GOVERNMENT IN THE SENSE OF DELIBERATING ABOUT
THE COMMON GOOD. BUT ON THE REPUBLICAN VIEW,
TO SHARE IN SELF GOVERNMENT REQUIRES THAT CITIZENS
ACQUIRE OR COME TO POSSESS CERTAIN VIRTUES,
CERTAIN QUALITIES OF CHARACTER THAT ORIENT THEM
TO THE COMMON GOOD. IT REQUIRES A KNOWLEDGE
OF PUBLIC AFFAIRS, BUT IT ALSO REQUIRES
A SENSE OF BELONGING, A SENSE OF IDENTITY
WITH THE COMMUNITY WHOSE FATE IS AT STAKE. THIS LEADS TO AN
IMPORTANT DIFFERENCE WITH THE LIBERAL CONCEPTION
OF FREEDOM AND OF GOVERNMENT, BECAUSE IF FREEDOM DEPENDS
ON SHARING IN SELF RULE, AND IF SELF GOVERNMENT
DEPENDS ON HAVING CERTAIN QUALITIES OF CHARACTER,
THEN CHARACTER AND CIVIC VIRTUE BECOME AN IMPORTANT
PUBLIC QUESTION. IT MEANS THAT GOVERNMENT
CAN’T BE NEUTRAL ON THE QUESTION
OF THE GOOD LIFE, ON THE QUESTION
OF CITIZEN VIRTUE. GOVERNMENT HAS TO CONCERN ITSELF
WITH THE QUALITIES OF CHARACTER ITS CITIZENS HAVE. IT HAS TO TRY TO
CULTIVATE THE VIRTUES THAT WILL EQUIP CITIZENS
FOR SELF RULE. SO, IN THE LIBERAL
PICTURE OF FREEDOM, GOVERNMENT IS NEUTRAL AMONG
ENDS, AND NEUTRAL WITH RESPECT TO THE VIRTUES THAT CITIZENS
ACQUIRE, EXCEPT VIRTUES TO DO WITH TOLERATION
AND RESPECT FOR OTHER PEOPLE’S RIGHTS. THOSE VIRTUES, THE
LIBERAL CAN AFFIRM. WHEREAS ON THE
REPUBLICAN VIEW, THERE’S A MORE THOROUGH GOING
CONCERN FOR VIRTUE. REPUBLICAN POLITICAL THEORY
IS CONCERNED NOT JUST WITH THE VIRTUES OF BEING
TOLERANT AND RESPECTING OTHER PEOPLE’S RIGHTS
TO CHOOSE THEIR ENDS. THE REPUBLICAN
CONCERN WITH VIRTUE IS CONCERNED WITH CULTIVATING
THE FULL RANGE OF QUALITIES OF CHARACTER THAT WILL EQUIP
PEOPLE TO DELIBERATE WELL ABOUT THE COMMON GOOD. NOW, HOW DOES THIS
MAKE A DIFFERENCE IN PRACTICE OR IN
DEFINING RIGHTS? TAKE THE EXAMPLE OF THE
RIGHT TO FREE SPEECH. THE LIBERAL DEFENSE OF FREE
SPEECH COULD BE AS FOLLOWS. FREE SPEECH IS AN
ESPECIALLY IMPORTANT RIGHT BECAUSE PEOPLE SHOULD BE
FREE TO FORM AND TO EXPRESS THEIR OWN OPINIONS
FOR THEMSELVES. THE RIGHT TO FREE SPEECH
IS A RIGHT TO SELF EXPRESSION, TO CHOOSING
ONE’S OWN OPINIONS, AND TO EXPRESSING THEM. HOW WOULD THE REPUBLICAN
DEFEND THE RIGHT FREE SPEECH IN A DIFFERENT WAY? THE REPUBLICAN WOULD EMPHASIZE
THE IMPORTANCE OF SPEECH IN SEEKING THE COMMON
GOOD, IN DELIBERATING ABOUT THE COMMON GOOD. THE REASON FREE SPEECH HAS
TO BE SPECIALLY PROTECTED ON THE REPUBLICAN VIEW IS THAT IT’S
ESSENTIAL TO SELF GOVERNMENT. IT’S ESSENTIAL TO THE
POLITICAL DISCOURSE AND POLITICAL DELIBERATION
IN THE FORMATION OF PUBLIC JUDGMENT THAT
THE REPUBLICAN VIEW SEES AS ESSENTIAL TO FREEDOM. NOW, YOU MIGHT
SAY, WELL, HERE ARE TWO DIFFERENT JUSTIFICATIONS
FOR OUR RIGHT TO FREE SPEECH. IF THEY LEAD TO THE SAME
OUTCOME, WHAT’S THE DIFFERENCE? WHY DOES IT MATTER
WHICH JUSTIFICATION ONE AFFIRMS, OR A
SOCIETY AFFIRMS? IT DOES MAKE A DIFFERENCE,
BECAUSE THE RIGHT TO FREE SPEECH MIGHT BE
APPLIED DIFFERENTLY DEPENDING ON WHAT
THE JUSTIFICATION IS. IF THE RIGHT TO FREE
SPEECH IS PRIMARILY FOR THE SAKE OF LETTING PEOPLE
EXPRESS THEMSELVES AND CHOOSE THEIR OWN OPINIONS AND
VALUES, AND IF, THEREFORE, IT SHOULD BE APPLIED IN A WAY
THAT’S NEUTRAL WITH RESPECT TO THE CONTENT OF SPEECH–
AND THAT’S HOW THE US SUPREME COURT HAS INTERPRETED THE
RIGHT TO FREE SPEECH– THEN A WHOLE RANGE OF
EXPRESSION MUST BE PROTECTED BY FREE SPEECH
THAT WOULDN’T NECESSARILY GET THE SAME PROTECTION
ON THE REPUBLICAN VIEW. THINK OF COMMERCIAL
SPEECH, FOR EXAMPLE. IN THE UNITED STATES,
ONE OF THE REASONS WE CAN’T HAVE MEANINGFUL
CAMPAIGN FINANCE REFORM IS THAT THE SUPREME
COURT HAS SAID THAT SPENDING UNLIMITED
AMOUNTS OF MONEY ON POLITICAL CAMPAIGNS
OR TELEVISION COMMERCIALS DURING A CAMPAIGN SEASON,
THAT’S FREE SPEECH. YOU CAN’T RESTRICT
THE AMOUNT OF MONEY SPENT BECAUSE THAT’S
VIOLATING FREE SPEECH. ON THE REPUBLICAN
CONCEPTION OF FREE SPEECH, I THINK THERE WOULD BE A MUCH
GREATER READINESS TO SAY, WHAT WE NEED TO THINK ABOUT IS
THE AIM, IS THE END IN VIEW. NAMELY, THE BEST KIND
OF PUBLIC DELIBERATION AIMING AT THE COMMON GOOD. AND IF THAT REQUIRES RESTRICTING
THE EXPENDITURE ON TELEVISION CAMPAIGN COMMERCIALS,
THEN SO BE IT. OTHER KINDS OF COMMERCIAL
SPEECH MIGHT ENJOY PROTECTION UNDER THE LIBERAL JUSTIFICATION
BUT NOT SO MUCH PROTECTION UNDER THE REPUBLICAN
JUSTIFICATION. THEY WANTED TO ADVERTISE
ON SUNDAY MORNING AMERICAN TELEVISION. THEY SHOWED CHILDREN’S CARTOONS
AND OFTEN THOSE CARTOONS ARE SPONSORED BY SUGARED
BREAKFAST CEREALS THAT THEY WANT TO
ENCOURAGE CHILDREN TO BUY. WHEN THE FEDERAL
GOVERNMENT PROPOSED RESTRICTING THE
NUMBER OF MINUTES THAT COULD BE DEVOTED
TO COMMERCIALS FOR SUGARED CHILDREN’S BREAKFAST
CEREAL ON SATURDAY MORNING, THERE WERE THOSE
WHO SAID, NO, THIS RAISES A CONSTITUTIONAL
VIOLATION OF FREE SPEECH. THE FREE SPEECH OF THE
CEREAL MANUFACTURERS TO PEDDLE THEIR GOODS TO
IMPRESSIONABLE CHILDREN ON SATURDAY MORNINGS. NOW, ON THE REPUBLICAN IDEA OF
THE RIGHT TO FREE SPEECH, WHAT JUSTIFIES THE RIGHT
DOESN’T APPLY TO THE CEREAL MANUFACTURERS, AND SO
WOULDN’T ARISE AS RIGHT. YOU MIGHT SAY, WELL,
THAT’S AN EASY CASE. WHAT ABOUT RESTRICTING
PORNOGRAPHY? THERE HAVE BEEN
ATTEMPTS RECENTLY BY FEMINISTS TO RESTRICT
PORNOGRAPHY ON THE GROUNDS THAT IT IS REALLY
NOT FREE SPEECH, BUT IT’S A MULTI-MILLION
DOLLAR INDUSTRY THAT DEGRADES WOMEN
AND UNDERMINES THE CIVIC EQUALITY OF WOMEN. THIS WAS AN ARGUMENT
ADVANCED IN A FEDERAL SERIES OF FEDERAL COURT CASES ABOUT
AN INDIANAPOLIS ORDINANCE THAT WOULD HAVE
RESTRICTED PORNOGRAPHY IN THE NAME OF THE
CIVIC EQUALITY OF WOMEN. AND THE FEDERAL COURTS
STRUCK DOWN THOSE ORDINANCES AS A VIOLATION OF FREE SPEECH. THOSE ORDINANCES CLEARLY
WERE NOT NEUTRAL. THEY WERE PASSING JUDGMENT
ON THE CONTENT OF THE SPEECH. I’M NOT SURE THOSE
ORDINANCES ARE THE BEST WAY OF DEALING WITH
THE PROBLEM, BUT I THINK THAT ON A REPUBLICAN
CONCEPTION OF FREE SPEECH, THERE WOULD BE A
GREATER WILLINGNESS TO ALLOW ORDINANCES SUCH
AS THAT TO GO FORWARD. BECAUSE THE INTEREST
ON THE OTHER SIDE, ALLOWING THIS MASSIVE
INDUSTRY TO GO FORWARD REALLY WOULDN’T BE RELATED TO
THE AIM OF SELF GOVERNMENT, WHEREAS THE CLAIM
OF THE FEMINISTS WAS INVOKING THE CIVIC
EQUALITY OF WOMEN. SO, THE RANGE OF
APPLICATION OF THE RIGHT WOULD VARY DEPENDING
ON THE JUSTIFICATION. IN THE LIBERAL DEFENSE,
THE RIGHT TO FREE SPEECH IS TO ENABLE PEOPLE TO
CHOOSE THEIR OWN OPINIONS AND TO VOICE THEM,
REGARDLESS OF THEIR CONTENT. ON THE REPUBLICAN DEFENSE
OF THE RIGHT TO FREE SPEECH, THE JUSTIFICATION HAS
TO DO WITH DELIBERATING ABOUT THE COMMON GOOD
AND EQUIPPING CITIZENS TO DELIBERATE WELL. ONE ILLUSTRATION OF THE CONTRAST
BETWEEN LIBERAL AND REPUBLICAN UNDERSTANDINGS OF
CITIZENSHIP AND FREEDOM ARISE IN THE CASE OF
DEBATES ABOUT THE GROWING GAP BETWEEN RICH AND POOR. IN THE UNITED STATES
AT THE MOMENT, THE GAP BETWEEN RICH
AND POOR IS THE BIGGEST IT’S BEEN SINCE THE LATE 1920S. AND THERE ARE DIFFERENT
WAYS OF ADDRESSING THIS, MORALLY AND POLITICALLY. THE WAY THAT FLOWS FROM
PROCEDURAL LIBERALISM SAYS IT’S UNFAIR TO
THOSE AT THE BOTTOM. AND THE REASON IT’S UNFAIR
IS THAT THOSE AT THE BOTTOM ARE NOT FREE TO CHOOSE THEIR OWN
ENDS IN ANY MEANINGFUL SENSE. THEY’RE NOT FREE TO CHOOSE
THEIR OWN LIFE PLANS. IT’S A VIOLATION OF
THEIR INDIVIDUAL FREEDOM THAT THEY NOT HAVE A CERTAIN
DECENT SOCIAL MINIMUM. IN THE US, AT
LEAST, THAT HAS NOT BEEN A WINNING
POLITICAL ARGUMENT, AND I THINK IN PART
BECAUSE IT LACKS A CERTAIN KIND OF
MORAL RESONANCE THAT SPEAKS TO THE COMMON GOOD. A REPUBLICAN OR A CIVIC ARGUMENT
AGAINST TOO GRAVE A GAP, TOO DEEP A GAP
BETWEEN RICH AND POOR, SAYS IT DESTROYS
THE COMMON LIFE. IT DESTROYS ANY POSSIBILITY OF
SHARING A SUFFICIENTLY COMMON LIFE SO THAT WE CAN DELIBERATE
AS A POLITICAL COMMUNITY ABOUT THE COMMON GOOD. THIS OBJECTION TO GROSS
INEQUALITIES OF WEALTH GOES ALL THE WAY
BACK TO ARISTOTLE, WHO SAID THAT, IF THERE’S TOO
GREAT AN INEQUALITY OF WEALTH, IT WILL BE CORRUPTING. HE DIDN’T SAY, AT
LEAST NOT PRIMARILY, IT WOULD BE UNFAIR TO
THOSE AT THE BOTTOM. IT’LL BE CORRUPTING. WHAT WILL IT CORRUPT? IT WILL CORRUPT THE VIRTUE
OF THE RICH AND OF THE POOR. THE POOR ARE SUBJECT TO THE
SCOURGE OF ECONOMIC NECESSITY, SO THEY HAVE TO BE PREOCCUPIED
WITH THEIR OWN SELF INTEREST, AND THEREFORE, THEY WILL BE ILL
EQUIPPED TO SHARE IN SELF RULE. BUT THE RICH ARE ALSO
CORRUPTED, BECAUSE THEY’RE DISTRACTED BY LUXURY. AND THEY’RE CUT OFF IN THEIR WAY
OF LIFE, FROM THE COMMON LIFE, SO THEY ALSO ARE ILL
EQUIPPED TO SHARE IN DELIBERATION ABOUT
THE COMMON GOOD. ROUSSEAU EMPHASIZED THIS CIVIC
ARGUMENT AGAINST INEQUALITY AS WELL. AND THAT’S WHY ROUSSEAU
SAID THAT NO SOCIETY SHOULD BE ONE IN WHICH THE
RICH ARE RICH ENOUGH TO BUY OFF THE POOR. IT’S CORRUPTING. AND WHAT IT’S CORRUPTING OF
IS CIVIC VIRTUE, THE COMMON OR THE SHARED WAY OF
LIFE THAT GIVES RISE TO A POLITICAL COMMUNITY
WHERE PEOPLE CAN ARGUE IN COMMON ABOUT
PURPOSES AND ENDS. AND I THINK THAT, IN
DEALING WITH THE GROWING GAP BETWEEN RICH AND
POOR IN THE US AND ALSO IN MANY WESTERN
SOCIETIES, WE NEED TO RECOVER THE CIVIC OR
THE REPUBLICAN REASONS FOR WORRYING ABOUT
GRAVE INEQUALITIES. BECAUSE I THINK THE ONES DERIVED
FROM THE LIBERAL TRADITION, WHICH WORRY ABOUT THE
FRUSTRATED CHOICES OF THOSE LEFT ON THE BOTTOM, I DON’T THINK
THOSE ARE POWERFUL ENOUGH MORAL AND POLITICAL
RESOURCES TO RECONSTRUCT THE PUBLIC SPACES THAT ARE
DAMAGED WHEN RICH AND POOR COME TO LIVE ESSENTIALLY
SEPARATE, SEGREGATED LIVES. THE CIVIC TRADITION,
I THINK, HAS SOMETHING TO SAY
TO THAT CONDITION, AND WE NEED TO TRY
TO RECONSTITUTE THAT WAY OF THINKING
AND THAT WAY OF WORRYING ABOUT THE GAP BETWEEN
RICH AND POOR.

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