Legal Commentary

I was recently asked to write a paper and present a talk on the general, amorphous and ephemeral concept of happiness. Hedonic economic theory would be an easy discussion point, but as a student of the First Amendment, and given our post-Tucson fleeting interest in so-called civil discourse and the recent Syder decision, I asked myself the following questions: Given the fact that consistent polling shows that we use words like "frustrated," "bad," "mean," "childish," and "corrupt" to describe our government, elected officials and state of politics today, why are we unhappy with politics and do we even have a right to be happy or satisfied with our politics in the first place?

More capable historians than I have argued that a litany of factors explains our disaffection with government -- Vietnam, Watergate, President Nixon, the assassination of President Kennedy, endless sex and influence peddling scandals, moral hypocrisy among conservative senators who sleep around, and so on. But, I am interested in a more subtle point. There is evidence to suggest that we are not only dissatisfied with government, the men and women who populate government and the waste that results, but we also find political discourse -- partisanship, negative campaigning, loud debates in the body politic -- distasteful and disillusioning.

Is the ideological drift of the First Amendment -- or, Professor Belkin's description of the First Amendment's broadening reach -- to blame? If so, is that a bad thing? Did the Framers ever expect us to be happy with raucous American republicanism? Or, did they, like John Godfrey Saxe, see laws like sausages -- we will never want to see them made.

First, we must discuss First Amendment "drift." In his article in the Duke Law Journal in 1990, Professor Belkin noted that "all around [him, he] see[s] the American left abandoning its traditionally libertarian positions" when it comes to the speech protected by the First Amendment. Free speech, Belkin notes, is being invoked more by conservative groups speaking about conservative ideology or fringe groups spouting hate.

I am moved to ask two questions: Is Professor Belkin's observation correct? And, if so, is the First Amendment's ideological drift toward protecting hate, nasty or, at a minimum, unpleasant speech related to our dissatisfaction with partisanship, politics and government?

It is difficult to disagree with Professor Belkin; his and other articles contain a number of examples of the ideological shift. Snyder may be another example. But, I am not sure the "drift" to the right of the First Amendment is unexpected or contrary to the Framers' intentions and expectations. Perhaps the early progressivism of the First Amendment's reach was anomalous (and I offer this early theory without regard to my own political views). Without joining the chorus of originalists who believe that the words "Congress shall make no law" automatically requires free speech absolutism, I hypothesize that the historical record shows that the Framers and the early Republic felt that nasty, brutish and hateful discourse was all part of the marketplace of ideas protected by the First Amendment. I am currently at this stage of my research, but the writings of Madison (if not the writings of Hamilton), not to mention the hoary campaigns of the early Republic, lend some credibility to my hypothesis.

I would love to hear your thoughts...