Centennial Review, October 2011 ▪ 3
U.S. government to ban political books and movies.
Evenmore remarkably, four Justices of the Supreme Courtseemed to agree.How can this be? The answer is the substitution of “values”for the actual provisions of the Constitution. JusticeStephen Breyer, for example, is a leading theorist for theidea of a values-based interpretation of the Constitution. While Justice Breyer has made clear that he believes thatcampaign nance regulations abridge free speech, healso believes, as a matter of policy, that the regulation of political speech can improve American self-government by promoting better debate and greater political equality.
A Strong Presumption
Thus, despite the constitutional command that“Congress shall make no law,” he argues that“there is no place for a strong presumptionagainst constitutionality” of speech-abridging regulations because “there are constitutionally protected interests on both sides.”
To those of us whotake language seriously, this is patently absurd. We do notargue that even such absolutist language as “Congressshall make no law” is in all respects absolute. For example,the government may be able to punish the unauthorizeddistribution of classied material, or maintain libel laws.But surely “Congress shall make no law…abridging thefreedom of speech” must at least mean that there is astrong presumption against the constitutionality of a law abridging what Justice Breyer agrees is “the freedom of speech.” The problem with Justice Breyer’s approach is that every question of constitutional law that reaches the SupremeCourt is likely to have “constitutional interests”—values —“on both sides.” Otherwise, it is difcult to envision thatanyone would ever take a constitutional challenge all the way to Supreme Court. Once “constitutional values” canbe substituted for the actual language of the Constitution,there is no meaningful check on the courts—or frankly, onpopular majorities, for legislators, too, agree to abide by theConstitution—from doing whatever they want. In other words, there is no Constitution.
First Amendment Makes No Exceptions
Moreover, to say that there are “interests” on both sidesand to then ignore the Constitution is, in most cases, likely to be a means of ignoring the values that might actually have led to the inclusion of the constitutional provision atissue. Indeed, in this particular case, the First Amendmentcould have provided exceptions for regulating speech “tofoster political equality” or to “improve public discourse”or simply, “when necessary in the public interest.” That itdid not is perhaps recognition that the value most behind
What part of ‘make no law’don’t they get?
the First Amendment’s protection of speech was a distrustof government regulation of the political process. Why are so many so eager to interpret the Constitution notin terms of its actual provisions, but in terms of its alleged values? The answer, oddly enough, is that many of thesesame persons are not particularly enamored of many of the values that seem to have motivated the drafting of theoriginal document and its rst ten amendments, the Billof Rights. What were some of the values behind the Constitution? They included national unity, as reected in the full faithand credit clause; the power given the federal government tocoin money and carry out foreign policy; the requirementsof Article I, Section 8 that duties, imposts,and excises be uniform throughout thecountry, and of Article I, Sections 9 and 10that no duties may be laid on exports betweenstates; or Congress’s power to establish postroads. Clearly, representative democracy wasanother important value. So far, so good. Few peopletoday do not share these values.
Founders Distrusted Power
But other values of the founding seem more controversialtoday. Among the other values that surely inuencedthe Constitution were respect for private property and atremendous distrust of government power. These valuesare discussed at length in the Federalist Papers and reectedin many provisions of the Constitution.Prominent examples are the due process and proceduralprotections of the Bill of Rights; the explicit protectionsof private property and the right of contract found in Article I and in the Fifth Amendment; and the document’scareful division of power, with its three coequal branchesand bicameral legislature. Another key value reected in the Constitution that seemsparticularly unpopular today is the desire for a limitedgovernment. The framers sought to support this not only in the express limitations of the Bill of Rights but in thestructure of the government as one of enumerated powers. This concept has, over the years, been all but obliterated.By resorting to constitutional “values” or “interests,”legislators and courts have been able to slip the actual
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1. 30 S. Ct. 876 (2010).2. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (Breyer, J., concurring).