Jeremy K. Kessler

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Response to Glenn Greenwald

Four points on Glenn Greenwald’s thoughtful response to @rortybomb and my @bloggingheads conversation. I really appreciate the exchange, and should note that Anythony Kammer has also posted a response here. Hopefully we can all continue this conversation

(1)

I’m glad that Glenn mentioned his support for “robust public financing to even the playing field - a solution completely anathema to libertarians.” If money is political speech, as the defense of CU assumes, then I do think the government should engage in a project of regulation and redistribution to ensure that all American citizens have the same positive rights to express their political views. Once one accepts the money = speech equation, a truly “left” civil libertarianism should dedicate itself to this positive project rather than focusing on the defense of negative corporate speech rights. While the negative and positive modes of activism are not mutually exclusive, it’s important to note how much easier and less dangerous the defense of negative rights is in a society with such an inegalitarian status quo.

(2)

Glenn re-iterates the contemporary understanding of First Amendment law as enshrining content-neutral – and nearly-absolute – protection of speech for the sake of speech. My only point in this regard was that this hasn’t always been the way left civil libertarians understood the structure and purpose of First Amendment protection. If you look at what early civil libertarians like Crystal Eastman, Harry Weinberger, and Roger Baldwin (co-founder of the ACLU) were up to in the early 20th century, they weren’t wandering around looking for test cases to enshrine the most absolute and content-neutral interpretation of First Amendment law. They were deploying novel First Amendment arguments (along with an array of other legal tactics) to defend particular forms of left-wing political action – strikes, boycotts, war resistance.

The content-neutral vision of the First Amendment arises later and I would argue in an ironic fashion, largely in relationship to anti-communism. On the one hand, left-leaning civil libertarians used an increasingly content-neutral account of the First Amendment (with limited success) to fight back against Red-baiting and McCarthyism. On the other hand, a content-neutral First Amendment also appealed to Cold Warriors as a way to distinguish U.S. legal culture – where all views were allowed (the Smith Act to one side) – from Communist legal culture, where only some left-wings visions were licit.

Law changes over time and a program of dogged, content-neutral First Amendment activism should be defended on its normative merits, not because that’s what the law requires.

(3)

 I think we just disagree about this characterization of political ideologies:

“If anything is right-wing, I’d say it is the premise at the heart of the anti-CU position: namely, that the state should be empowered to suppress political speech when it can be demonstrated that doing so is necessary to avert bad outcomes.”

While I don’t support the state suppression of political speech, I don’t think there is anything inherently “right-wing” about the state suppression of political speech. That Glenn does is indicative of particular kind of American left-liberalism that I was trying to diagnose in my n+1 piece – a left-liberalism that begins with an allergy to state regulation.

(4)

Finally, the question of constitutional theory. I did not mean to suggest that Glenn was an originalist, and wish I had been clearer in my initial comment. I do think, however, that Glenn’s insistence on a strict law-consequences divide is strikingly conservative. Since the rise of legal realism in the early twentieth century, most American legal theorists have accepted that there is no sharp divide between law and politics. Judges are always “legislating from the bench” to some extent, as their moral and policy judgments either color their interpretation of the law or fill in gaps where the law is silent.

To be sure, this inescapable “judicial activism” is a cause for democratic concern – we don’t want a group of unelected elites telling us what the law is. I think the progressive answer to this quandary is that the best we can hope for from judicial decision-making is that it remains responsive to the will of the people as articulated through social movement mobilization. Robert Post and Reva Siegel have called such dialogue between courts and social movements “democratic constitutionalism” and there’s a fair bit of historical evidence that this actually works – that while judges do necessarily legislate from the bench they tend to be constrained, over time, by organized popular sentiment. Against this picture, conservatives insist on a strict law-politics or law-consequences divide, justifying judicial decisions on the basis of some formalism, whether constitutional originalism, or plain-meaning analysis, or natural law theory.

So, no, I don’t want “to argue for the power of courts to simply strike down or uphold laws based solely on their views of the desirability of the consequences.” But that doesn’t mean that we the people should not want our nation’s courts to achieve the most desirable consequences over the long haul. And the way to get courts to arrive at the outcome we want – a more just society – is by transforming our political and legal culture. Making persuasive arguments about the bad consequences of judicial decisions is a traditional part of that transformative process.