@hightor,
hightor wrote:
You make the standard big L "liberal" defense of freedom of speech as seen by the Founding Fathers but I really wonder how relevant this political philosophy from the Age of Enlightenment is today.
Isn't that the little L defense?
Quote:Our country is completely different from what it was 225 years ago. The electorate is no longer made up exclusively of educated white male property-owners for one thing. The notion of what even constitutes "speech" has been expanded to cover newly-arising conditions. Certainly the volume of information (and misinformation), the size (and demographic makeup) of the intended audience, and the speed at which it can be disseminated, and the effect all these changes have had, could never have been envisioned by the founders or the thinkers who inspired them.
I don't think that as respects the Bill of Rights, the nation has fundamentally changed in the last two-plus centuries. The concept of free speech is not, at all exclusive to the educated, white people, males, or property owners. In fact, it is easily argued that the right of free speech is immensely important to any group that
doesn't have unfettered access to institutional, economic or hereditary power.
Even when the notion of free speech was considered in the founding of the nation it wasn't limited to vocalizations. Written expressions were, of course, considered to join the spoken word under the umbrella of free speech. I don't make the claim that the Founders had a device that enabled them to look into the future to see how things might change in 225 years, but they came to the intellectual place they occupied after some 5,000 years of recorded history during which the world changed quite a lot. We sometimes have a difficult time appreciating that at any point in time that time was
modern, and that for advancing civilizations, that time was considered the pinnacle of learned thought. I've no doubt whatsoever that the Founders, along with a lot of people during their time, understood that the world would continue to change in the future. Clearly, some people's ability to imagine what that change might look like was more well tuned than others', and the pace of change has progressively and exponentially accelerated since the 18th century, but if Leonardo da Vinci could imagine the contemporaneous creation of flying machines and submarines in the 15th century I don't think it's far fetched to assume people (even those of a lesser genius than da Vinci) in the 1700's were capable of some crystal ball gazing.
The Founders may not have been able to imagine all of the changes that were to come, but they had to know they would come, and so we find that very often they deliberately used words that could become umbrellas in the future. I don't think that the ways that speech has changed since the 18th century: Speed, volume, and audience, fundamentally alter the concept of free speech as an essential right in a Democratic Republic. Sometimes scale can make an incredible difference (as with the bizarre Quantum scaled universe), but not here. If and when we are able to communicate telepathically thanks to brain implants or we occupy a hive mind or a single consciousness, the concept of free speech will have to undergo serious reconsideration (assuming it has any relevancy in a future that far away) but right now the changes are simply scale and means of delivery that don't make speech something vastly different than it was to the Founders or the Americans of that time.
Quote:I'm not arguing with you here. I'm just curious as to the efficacy of trying to fit our 21st century society into an 18th century grid, especially in light of the "originalism" which seems to be the judicial vogue these days. At what point does our museum-quality Constitution morph into something else, something less organic and more like some artifice imposed on the present by the past?
I didn't think you were.
I don't think we are trying to apply an 18th century template to a 21st century reality. There is room within
Originalism to view speech as an umbrella for modes of expression in both the 18th and 21st centuries. Some originalists might go so far as to contend that since the citizens of the 18th century had no understanding of digitized expression it wasn't including in the meaning of speech and therefore it is not protected by the First Amendment, while others (most I believe) would argue that the citizens understood the meaning of speech, in the context of the Bill of Rights, to mean expressions of thought (both spoken and written) and that there is nothing intrinsically different between speech delivered in e-mail or a manifesto written in a pamphlet, or words spoken in a town square vs words spoken on the radio. The messages might get to more people more rapidly than they would have back then, but the vehicles don't fundamentally alter the concept of expressing ideas.
This is quite different, I think, from most of the judicial interpretation based on the concept of a
living Constitution which, theoretically, could be used to support a decision that a law making
hate speech is Constitutional, i.e., that societal values in 2017 have changed since the 18th century due to intervening national and even global experiences. We now fully recognize the destructive power of
hate speech and for the good of the modern society we live in, it should not be protected by the First Amendment.
Of course regardless of the school of interpretation one favors there is a process very clearly laid out to change, amend or
modernize the Constitution. It is necessarily a difficult process but it has been used 17 times (not including the 10 amendments of the Bill of Rights) with the most recent ratification of the 27th being in 1992 (Only 202 + years since it was submitted for ratification!). So it's by no mean an impossible task. Unfortunately it is
too difficult for some litigants and activist justices who prefer the often much easier task of forming a majority of like minded members of the Court to change the meaning of the Constitution or even locate brand new rights buried deeply within the text.
I don't know how many amendments have been submitted for ratification but I imagine the number includes at least several that were silly or dangerous, but I do find it surprising that even four of the ones ratified were either misguided or not terribly significant: The 18th, 20th, 23rd and the latest, the 27th. Of course the 21st was only necessary because of the idiotic 18th that criminalized the manufacture or sale of liquor.
I don't think you are advocating scrapping the outdated Constitution, but before anyone even contemplates such a thing, we ought to attempt to bring it into the 21st Century via the Amendment process. If the thresholds are not met on any of the submitted Amendments, it's a pretty good indication that they shouldn't be the law of the land.
Constitutional interpretation and reliance on the Amendment process is actually a fairly good litmus test for determine whether one is a conservative or progressive.
