Liberalism (Locke, Mill)

Charles Brown CharlesB at
Thu Oct 29 11:40:57 PST 1998

>>> <JKSCHW at> 10/28 11:46 PM >>>
In a message dated 98-10-28 12:47:16 EST, you write:

>>It can be argued that it in the US it has been historically

difficult to defend the civil liberties of leftists or other dissidents

using any standard short of a "First Ammendment absolutism."

Anything short of a "First Ammendment absolutism" seems to

leave too many loopholes that the state can use to repress the

speech of leftists.

Justin, esq.: Actuallly our 1st Amend. jurisprudence hasn't done too well in protecting the speech of leftists when it counted. And US v. Dennis, upholding the conviction of the CPUSA leaders for--am am not making this up--conspiring to advocate the overthrow of the government--is still technically good law. __________

Charles: I know my brother counsel, Justin, doesn't agree with my whole position on this issue, but I am glad to see him take note of this important fact of U.S. jurisprudence: The First Amendment has been very shaky in protecting the speech of leftists. Besides Dennis case from the 50's, the original (that is first) and famous Holmes/Brandeis decisons had the result that WWI era and 1920's Leftists were jailed for speaking against the capitalist WWI as against the interest of workers. Eugene V. Debs was jailed and found not to have his purely political speech protected. ________
>>Thus we get the spectacle of progressives

who would normally argues against a strict constructionist

interpretation of the Constitution taking an almost fundamentalist

view of the Bill or Rights (excluding the Second Ammendment).

This is very confused. The Nixonian term "strict constructionst" means nothing. Justice Black, the absolutist architect of most of our 1st A jurisprudence in the ACLU vein, was a quasi-textualist, insisted on the litearl ,eaning of the words, but then paid no mind to the word "Congress" in the text, reading that to mean "government." As far as original intent goes, it's very unckear what the framers had in mind, or what the Amendment mewant back then to an ordinary reader. The framers had no trouble with the Alien & Sedition Act, for example. ___________

Charles: The generation that enacted the First Amendment did not consider that it protected speech advocating couter revolution, Tory speech. (See _Early Years of the Republic_ by Herbert Aptheker)


As Richard Epstein has argued at length, the real snake in the barrel of the Bill of Rights is the Takings Clause of the 5th Amend, "Nor shal;l private property be taken for public purposesw ithout just compensation." Give taht one some play and it will get you to right wing libertarianism of Epstein's variety. ___________ Charles: We need a constitutional amendment for a right to a decent job, including a provision amending this aspect of the 5th Amendment such that corporate perogatives with their private property are curbed based on their public impact on jobs, as in plant closings.

A very radical and dialectical dimension of the U.S. Constitution is its provision for Amendment. It implies that the fundamental law is not a fixed set of eternal principles , but changes. This was a completely new idea at its origin , as was a written constitution period.

The Amendment provision has been called the Revolution provision. __________

Progressives, incidenatrlly, also downplay the 10th Amend., which has been getting some teeth lately in a series of recent states-right S.Ct decisions.

>> Philosophically I think that a free speech absolutism is difficult

to sustain but given the realituis of American jurisprudence

and such factors as the historical weakness of the left then

a First Ammendment absolutism may in fact be pragmatically

the best course for leftists to take.

As a pragmatist, iI'd say, so much the worse for your philosophy then. __________ Charles:

A closer look shows that protecting Rightwing speech has not protected Left wing speech (See for example, _Dennis_ above) So, this strategy fails the pragmatic test.

By the way, I would even say that jurisprudence IS pragmatism. ___________

>>> In other more

progressive countries a more nuanced approach to free speech

may be the best course to take.

If you think our 1st Amend jurisprudence isn't nuanced enough. try readinga treatise on the suvject. You want nuances? We got nuances. __________

Charles: Having read much of the nuances, I would call them poltically motivated rationalizations. Law is politics, the old pragmatist Lenin said.

Charles Brown

attorney and counselor at law

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