Clear and Present Dangers 10: Civil Liberties and the Constitution

In my latest reading of M. Stanton Evans' Clear and Present Dangers: A Conservative View of America's Government (copyright 1975), I finished the chapter on civil liberties, read the chapter "How to Silence Dissent", and started the chapter on foreign policy.  In this post, I'll focus on civil liberties and Evans' discussion of government suppression of dissent.

Evans' point in his chapter on civil liberties is that the Left interprets so much of the U.S. Constitution loosely, while being strict on freedom of speech.  According to Evans, this is because the Left regards freedom of speech as a good idea because it allows for a marketplace of ideas, but it does not support free speech specifically because it is mandated by the Bill of Rights.  Otherwise, it wouldn't play so fast-and-loose with the Second and the Tenth Amendments!  Evans is also critical of conservatives who interpret the First Amendment loosely by claiming that times are different now, but Evans believes that conservatives in that case are following liberal methodology when it comes to interpreting the Constitution.

Recently, I read and blogged through Sheila Suess Kennedy's What's a Nice Republican Girl Like Me Doing in the ACLU?  Kennedy was a conservative Republican (though some would disagree with characterizing her as such) who headed the Indiana branch of the American Civil Liberties Union (ACLU).  How are her beliefs similar to and different from those of M. Stanton Evans in Clear and Present Dangers?

One area in which they are similar is that they both believe in the rule of law rather than rule by the whims of human beings.  Kennedy believes that free speech should be protected because it's in the Bill of Rights, and, if we don't obey the Bill of Rights, we are subject to the whims of whomever may be in power, which is potentially dangerous.  Evans has a similar concern about the powers of government being limited by law.  But I think that there are differences between him and Kennedy.  First of all, Kennedy does not address the Tenth Amendment in her book.  Whereas Evans would probably dismiss Medicare as unconstitutional (or at least he'd probably do so in 1975, and I'm not sure what he'd say about Medicare today), Kennedy is a critic of Paul Ryan's plan for Medicare and appears to be open to aspects of Obamacare (see here and here).  My impression is that Kennedy supports a limited government in the economic sphere because she thinks it's a good idea (due to her support for fiscal responsibility, encouraging people to work, and freedom), but she's not an absolutist who believes that the federal government can only do what is explicitly stated in the U.S. Constitution.  Evans, however, appears to think that the federal government should be limited because it's a good idea and also because it is constitutionally-mandated.

Second, Kennedy interprets the Establishment Clause strictly, and she believes that states under the Fourteenth Amendment cannot support a religion, and that's why states cannot sponsor prayer in public schools.  And, although she critiques a strict originalist approach to reading the Constitution, she argues that her interpretation of the Establishment Clause is consistent with what certain founding fathers believed.  Evans, by contrast, appeals to a statement by Justice Felix Frankfurter in speaking against the notion that the Fourteenth Amendment "incorporates the Bill of Rights and applies it to the states under the stewardship of Federal judges" (page 273), and he does not believe that prayer in public schools is constitutionally problematic.  Moreover, in this speech, Evans manifests an interesting view on originalism.  In seeking to understand the intent behind the Establishment Clause, Evans argues, we should not look so much at James Madison's strict views on church-state separation, but rather at the states that accepted the Bill of Rights, some of which explicitly established a religion in their own constitutions.  For Evans, the Establishment Clause was not intended to prevent the states from sanctioning religion.

For this third point about Kennedy and Evans, I won't be contrasting them, but rather I'll talk about an issue that Kennedy brought up that I thought about after reading Evans one day: the issue of the relevance of previous drafts of constitutional amendments.  Kennedy argues that the Establishment Clause was not merely intended to ban the government from supporting a specific church, but rather that its aim was to prevent the government from supporting a religion, period.  Her reason is that a previous draft of the First Amendment that banned the federal government from supporting specific churches was rejected.  This stood out to me because I recalled reading a religious right publication that make the opposite sort of argument: that we can tell what the original intent of the Establishment Clause was by looking at previous drafts, and since a preceding draft referred to churches rather than religion, we can conclude that the Framers meant churches when they prohibited the establishment of a religion.  My impression is that Kennedy was arguing that the Framers repudiated the concept of the previous draft, whereas the religious right publication held that they were simply rejecting the phrasing and were looking for another way to phrase the same concept.

Regarding Evans, Evans' discussion of the Tenth Amendment made me wonder how liberals interpret it, and why the Supreme Court in 1941 called it a "truism".  I haven't found a satisfying answer to my quest, but wikipedia's article on the Tenth Amendment (which refers to a University of Chicago article) states the following: "After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers 'expressly' delegated, which would have denied implied powers. However, the word 'expressly' ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause."  Some argue on the basis of the absence of the word 'expressly' in the Tenth Amendment that the Amendment was not intended to limit the federal government's responsibilities to what is explicitly enumerated in the U.S. Constitution (see here).  Like Kennedy's argument regarding the previous version of the Establishment Clause that was rejected, the idea here seems to be that, because the word "expressly" was rejected in the writing of the Tenth Amendment, the Amendment was not intended to be a rigid limitation of the federal government to the tasks expressly defined in the Constitution.

Where do I stand on these issues?  Regarding the application of the Bill of Rights to the states under the Fourteenth Amendment, I fail to see how we can have rights if only the federal government is forbidden to infringe upon them, whereas the state and local governments can.  On the Tenth Amendment, I have much to learn about that.  I think that the intent was to limit the federal government's powers to what the Constitution enumerated, otherwise why would the Constitution take the trouble to enumerate the powers in the first place?  At the same time, I believe that there were framers who desired some degree of flexibility, which is why there is a Necessary and Proper Clause that allows the federal government to use whatever powers it deems necessary to do what the Constitution stipulates.  It comes back to what the Constitution permits the federal government to do, but there is some flexibility----and my guess is that this flexibility is somewhere in-between the interpretation of the Amendment by strict conservatives and liberals.

I'd like to turn now to another issue that Evans raises: how government power to control property can open the door to government suppression of free speech.  Evans critiques the Fairness Doctrine, which required stations to provide free air-time to an opposing point-of-view if a program made a controversial political statement.  The result, Evans argues, is that many stations chose to avoid controversial programming altogether rather than to assume the cost and hassle of giving free air time to another side!  This often affected right-wing programs, and Evans notes an example in which oil companies were not able to respond to the media's attack on them because stations were afraid of showing controversial programming.  Evans also goes into how people influencing the Kennedy Administration desired for the means of government (i.e., the IRS) to be used to suppress right-wing spokespersons, a practice that Richard Nixon was criticized for doing when it came to his own political enemies.  Evans' point is that, when the government has more power over property, the government can use that power to suppress dissent. 

Evans may have a valid point.  And yet, I recall how Michael Moore's Sicko made the point that, in parts of Europe, which many conservatives would characterize as socialist, the government is afraid of the people and is sensitive to their demands.  In my opinion, social democracy is not necessarily incompatible with freedom of speech.