This column verges too closely on equivalence between the alt-right and the violent thugs of Antifa, however a tribute to James Madison is very welcome.
I visited James and Dolly Madison’s restored home and graveside “Montpelier” in Virginia last fall. I walked off a tour which only emphasized his ownership of slaves without mentioning that he was editor of The Bill of Rights, or a co author, with Alexander Hamilton and John Jay of the Federalist Papers. My brother and I walked through the magnificent estate bemoaning the fact that he is so under appreciated as a founding father of our great democracy…..rsk
The broad middle of this country seems caught between a rock and a hard place. On the far left, the “Antifa” movement has taken to protesting — often quite violently — ideas that do not conform to their transitory notions of social justice. On the other extreme, the alt-right has become indistinguishable from white-supremacist and neo-Confederate movements that have their origins in the seedy underbelly of American political history.
In light of this, it is seductive to question the utility of free speech. After all, speech is not entirely free in Europe. There are certain views you are prohibited from publicly expressing there, and they seem to have well-functioning democracies. Why must we hold to such an absolutist view? Are we not giving aid and comfort to the opponents of the republic by allowing them to utter such vile words? Is it not wiser to leaven the First Amendment with a prudent disregard for the fringes?
If we understand free speech in purely liberal terms — i.e. as a self-evident right — then these questions seem to have merit. After all, we restrict other rights for the sake of the public welfare. Most of them can be taken away, so long as it is done so with “due process.” And the process that is due, in many respects, is conditioned by the political, social, and economic climate of the day. Why not speech?
But the First Amendment is not merely an expression of liberal freedom, but of republican freedom as well. The liberal conception of liberty defines it as absence of government interference from your life — or, in its 20th-century evolution, liberty means that the government provides for a certain standard of living. But the republican notion of liberty is different. A free republic is one in which people are governed by laws that they themselves have a hand in making. From this perspective, freedom of speech needs to remain nearly absolute.
To appreciate this, consider the efforts of the man most responsible for the Bill of Rights, James Madison.
Madison was not so much the author of the Bill of Rights, but its editor. He was initially opposed to the project; the structure of the Constitution offered sufficient protection for civil liberty, he thought, and he feared that an enumeration of rights would imply a limitation to them. But the ratifying conventions in many states had approved the Constitution, with suggested revisions. Madison, who viewed these conventions as tribunes of the popular will, took their recommendations seriously. As George Washington’s de facto prime minister during the first session of the First Congress, he refined the wide array of proposals into what ultimately became the Bill of Rights.