Jim Fleming's Comments at ASLCH

Jim Fleming, Boston University, has graciously given me permission to post the comments he delivered on April 3, 2009, at the Annual Meeting of the Association for the Study of Law, Culture & Humanities. He was a participant on a lively roundtable on Eloquence and Reason in Boston. Professor Fleming is the author of several books on constitutional theory, including Securing Constitutional Democracy: The Case of Autonomy, and Constitutional Interpretation: The Basic Questions (with Sotirios Barber). He is working on Rights and Irresponsibility (with Linda C. McClain). In a future post, I will respond to Jim's thoughtful comments.

Here is Professor Fleming:

I want to begin by noting five great things about Robert’s book. Then, I’ll make three general observations about it. Finally, from the standpoint of my own constitutional theory, I’ll criticize his analysis of Gobitis & Barnette along with his discussion of Griswold & Lawrence.

I. Five great things about the book

First, it is, appropriately enough, an eloquent book. Second, it is also an elegant book. Third, it is proudly post-originalist. Fourth, and relatedly, its model of adjudication as facilitation rather than translation of original meaning is quite powerful. Finally, and also relatedly, it is a rich work of popular constitutionalism, especially of presidential popular constitutionalism, over and against judge-centered and originalist constitutionalism. From reading the book, I learned much about subjects I have been studying for years.

II. Three general observations

One, the book manifests an ambiguity surrounding, in terms of its subtitle, “creating a First Amendment culture.” Does Robert mean to argue that our constitutional culture is a First Amendment culture? That the First Amendment is somehow its constitutive, defining feature? Or does he simply mean to say that he is analyzing the First Amendment as an aspect of our larger constitutional culture? I would find the book more persuasive on the latter interpretation.

Two, is the book really about our First Amendment culture or instead a highly literate and terrifically clever analysis of metaphors and rhetoric in Supreme Court decisions and presidential statements about the Constitution? To a large extent, it seems the latter. For example, his wonderful analyses of the metaphors of the marketplace of ideas and of speech-as-fire demonstrate that the Supreme Court justices love to use these metaphors. But does it tell us anything about “precepts of eloquence” and the “linguistic regimes” outside Supreme Court opinions, if you will, out there in the culture and in the ways people think and talk about freedom of speech?

Three, I worry that in places the book fails to recognize the difference between metaphor and theoretical framework, e.g., in his analysis of “the marketplace of ideas.” When I teach Constitutional Law, I distinguish two understandings of the First Amendment as protecting a “marketplace of ideas.” First is the general metaphor illustrated by Justice Holmes’s dissent in Abrams: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” Second is the specific law and economics-inspired theory based on an programmatically developed analogy between the economic marketplace and the political marketplace. Judge Easterbrook explicitly in Hudnut (the Indianapolis pornography case), and Justice Scalia implicitly in R.A.V. (the St. Paul hate speech case).

On Easterbrook’s view, government must be neutral in the political marketplace as between the views that women are equal to men and that women are subordinate to men, just as it must be neutral in the economic marketplace as between the views that consumers should buy Fords and that they should buy Toyotas. And so, just as he would object to the government picking winners and losers in the economic market, e.g., saying buy a Ford rather than a Toyota, so too he objects to government sanctioning favored viewpoints in the political market, e.g., saying women are equal to men rather than subordinate to men. Under this specific theory, as distinguished from the general metaphor, the First Amendment becomes a veritable marketplace of ideas. My sense is that when most people in our constitutional culture speak of the marketplace of ideas, they are using it as a general metaphor, not as this specific theory.

III. The Turnabout from Gobitis to Barnette

This is a fascinating case study. It begins with an excellent explication of FDR’s conception of four freedoms. And it is a good illustration of presidential role vis a vis the First Amendment culture (analysis of Reagan’s role vis a vis wall of separation is also quite illuminating). But Robert does not establish that FDR directly contributed to or influenced the Supreme Court’s decision to overrule Gobitis in Barnette. I think that what he calls “internal accounts” and changes in personnel are sufficient to account for the turnabout.

Let’s look at Robert’s formulations:

1. “Rhetorical intervention of the president...cuts against the internal account.” (114) But as far as we can tell from his own account, the rhetorical intervention occurs in the constitutional culture generally, not at the Supreme Court.

2. “The president’s oration appeared to repudiate the logic of Gobitis.”(119) Yes, but that does not establish that it influenced the Supreme Court’s decisionmaking.

3. “The 1941 address came as close to a repudiation of Gobitis as one could expect from the president.” (120) Yet, the repudiation is highly general, and not directed at Gobitis or at the Supreme Court. In my experience, presidents don’t shy away from naming Supreme Court decisions they reject and want to overturn. FDR himself certainly did not.

4. Justice Stone’s dissent in Jones v. City of Opelika “appeared to be the first time that he...had placed the First Amendment in a ‘preferred position,’ endorsing the contemporaneous moves of the president.” (121) But Stone had placed the First Amendment in a “preferred position” in United States v. Carolene Products in 1938 and in his dissent in Gobitis in 1940. In the casebook of which I am co-author, we publish the Frankfurter-Stone correspondence about the application of Carolene Products to Gobitis. And Stone’s dissent in Gobitis is straight Carolene Products.

5. “After this series of presidential orations and judicial responses, the Supreme Court revisited the question of the coerced flag salute.” (122) Here Robert practically commits the fallacy: after this, therefore on account of this. He does not squarely establish that there has been a judicial response specifically to the presidential orations.

6. Next, “discursive convergence between the political branches and the judiciary” and “mirroring the rhetoric of the president.” (123) Convergence, yes, and mirroring, yes, but he has not established more than that.

7. Finally, “taking its cue from presidential rhetoric, the Supreme Court endorsed and elaborated the point.” (126) Again, he has not established that the Supreme Court has taken its cue from presidential rhetoric. I grant that Robert does establish that FDR contributed to Walter Barnette’s brief, which alluded to the four freedoms. (122-23)

I want to offer an alternative, sufficient account: The shift is explainable on the basis of changes of personnel and changes of mind. Changes of personnel: Rutledge and Jackson replace two members of the Gobitis majority. Changes of mind: Black, Douglas, and Murphy come to their liberal, First Amendment respecting senses. It is possible that in Gobitis they were moved by concern for national cohesion but then came or reverted to their senses in Barnette. The point is that we don’t need FDR in the account: he is a fifth wheel.

Finally, this change is explainable by the Supreme Court and the president independently reacting to the same developments in the world: or, convergence and mirroring in this sense.

IV. Griswold & Lawrence

A. Griswold

The first draft of Justice Douglas’s opinion of the Court in Griswold placed primary emphasis on freedom of association. Justice Brennan urged Douglas to shift the emphasis to “an expansive interpretation” of privacy. And Douglas did so in the final version of the opinion.

Robert analyzes Douglas’s opinion as if it is trying to trade on “the power of First Amendment ideas in reconstructed America” and also refers to “reverence for the First Amendment.” (136) He also suggests that Douglas is on weaker ground, from the standpoint of constitutional culture and popular acceptance, when he justifies Griswold on the basis of the right of privacy. But is the right of privacy any less central in our constitutional culture than freedom of speech? Many indeed have spoken of our constitutional culture as a “culture of choice.” Lawrence Friedman has written a major book about our “republic of choice.”

In my book, Securing Constitutional Democracy, I have argued that Griswold, no less than Brown v. Board of Education, is “a fixed star in our constitutional constellation”: after the Senate’s rejection of Robert Bork, every nominee to the Supreme Court has said, and has to say, that Griswold was rightly decided. I grant that law professors, especially those educated at Yale, are dubious about the right of privacy and confident about the First Amendment. I grant that specific right of privacy cases, like Roe, are controversial; but so are specific First Amendment cases, like the flag burning cases. And I would point out that we’ve come closer to amending the Constitution to overrule the flag burning cases than we have to amending the Constitution to overrule Roe or Lawrence. Moreover, I don’t believe that the right of privacy and the culture of choice is any less salient to an understanding of our constitutional culture than is the First Amendment. Let’s not forget that Robert Bork ran into more trouble in his Senate confirmation hearings for denying that the Constitution protected a right to privacy than he did for writing that the First Amendment protected only political speech.

B. Lawrence

Robert similarly suggests that in Lawrence, Justice Kennedy is “tempted to rebuild the right to privacy through the First Amendment,” for again, he believes that “the language of expressive liberty had the potential to foster broad social support” whereas the right to privacy is “more contested.” (137) He quotes Kennedy’s line: “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” (137) And he observes that the first three of these are tied to the First Amendment. (137)

But the heart of Lawrence is the same as the heart of Casey: a conception of individuals as having a right of personal autonomy to make certain decisions fundamentally affecting their destinies. Lawrence doesn’t need and doesn’t use the First Amendment any more than Casey did. In my book, Securing Constitutional Democracy, I present this commitment to protecting personal autonomy in terms of commitment to a fundamental theme of deliberative autonomy. I present the fundamental theme of deliberative autonomy, together with that of deliberative democracy, as the two bedrock structures of our Constitution and constitutional order. The First Amendment is but a manifestation of these two underlying structures. From the standpoint of my theory of securing constitutional democracy, the “freedom of thought, belief, and expression” in Kennedy’s formulation are aspects of individual liberty and autonomy, not aspects of the First Amendment apart from individual liberty and autonomy. Indeed, I’ve always read Barnette as being fundamentally about what Jackson calls “a right of self-determination,” which itself is an aspect of deliberative autonomy. It is not just about the First Amendment.

Thus, there is no need for Kennedy to do what Robert calls “the hard work of making lasting connections” between the First Amendment and the right of privacy. (137) The Court in Casey has already done the hard work of articulating the connection between liberty and personal autonomy that Lawrence invokes. To the extent that Lawrence needs anything more than liberty and personal autonomy, it is the idea that it demeans the existence of gays and lesbians not to recognize a right to privacy and personal autonomy for them that is analogous to the right of privacy and personal autonomy already recognized for heterosexuals in the line of substantive due process decisions. And Lawrence needs the idea denied in Bowers, that there is a “connection” and “resemblance” between the “intimate sexual conduct” of heterosexuals, on the one hand, and homosexuals, on the other. The First Amendment comes in only as itself a manifestation of the deeper commitment to deliberative autonomy.