Reply to Fleming

I am honored that Professor Fleming has taken the time to read my book so carefully. Jim raises three kinds of questions of Eloquence and Reason: (1) the book's methodology and theoretical aims; (2) its causal claims about the Gobitis to Barnette sequence; and (3) its characterization of the Lawrence Court's deployment of the First Amendment on behalf of sexual autonomy. I'll take these up in turn.

I. General Comments

Jim wonders whether the book argues that the First Amendment is the "defining feature" of American constitutional culture or is simply interested in exploring First Amendment subculture. The answer is both, to varying degrees: I am primarily interested in explicating the contours of the political belief system and grammar we together call "First Amendment law." I am concerned with how that emerged over time, and, as a theoretical matter, how broader institutional and cultural processes gave us the modern First Amendment we have. That said, Eloquence and Reason also contends that, for better or for worse, and as originally designed or not (I think probably not), the First Amendment has come to dominate both the development of legal doctrine and ordinary Americans' attitudes about the Constitution. Because the book focuses on a handful of case studies during the twentieth century in the name of theory, it necessarily offers an incomplete history and partial ethnography. But, even though its sources consist of the writings and speeches of judges, lawyers, and elected officials, once more work is done I would expect to find that First Amendment ideas influence how ordinary people think of the Constitution.

When the book analyzes metaphor, it endeavors to make a general defense of the practice of transmitting constitutional ideas in metaphorical terms, while leaving room for just the kind of critique of specific metaphors that Jim offers of the "marketplace of ideas."

II. Gobitis to Barnette

Jim is skeptical that executive branch action did much, if anything, to cause the Supreme Court's shift from one position to another. I don't deny the role that personnel changes and changes of mind played, but argue that everything occurred in an environment shaped significantly by presidential action. While the Supreme Court was going to have to hear Walter Barnett's appeal, there are a few ways presidential language may have "caused" the outcome and content of Barnette:

1. To the extent that presidential rhetoric flooded public discourse, its basic thematic opposition to the logic of Gobitis (especially its claim that security and liberty stand in opposition) weakened that decision's capacity to gain popular assent.

2. Presidential words and executive branch actions, coupled with a refusal to endorse Gobitis publicly, signaled to the High Court a refusal to cooperate in enforcing its constitutional vision.

3. Presidential emphasis of the right to speech and religion between the years of 1940 and 1943 empowered pro-rights advocates. These included members of the media, high officials, DOJ lawyers, lawyers for the litigants, and receptive members of the Supreme Court, who specifically mentioned FDR's speeches and argued that Gobitis interfered with the president's priorities.

4. Presidential emphasis on the First Amendment may have inclined those within the administration to favor the following changes to Supreme Court personnel: Stone to Chief Justice, Robert Jackson for Stone's seat, and Wiley Rutledge for Jimmy Byrnes. Each of these individuals opposed Gobitis.

5. These words not only wrapped the plight of the Jehovah's Witnesses in major war-inspired themes but also offered a roadmap to follow should the Court wish to present a united front regarding the president's war agenda.

To be fair, I delve more deeply into these historical and theoretical claims in a subsequent article, Reconsidering Gobitis. My posts here, here, and here discuss archival materials suggesting that DOJ lawyers sought to overturn Gobitis and that extra-judicial statements by the executive branch impacted the Court's decisionmaking.

Footnote Four of the Carolene Products decision is important to contemporary theory. But here is where I fear Jim may be reading too much back into the past. Footnote Four cites a few First Amendment cases for the proposition that certain rights trigger "more exacting judicial scrutiny," and is a bit cagey at that (specifically mentioning "dissemination of information," "interferences with political organizations," and "peaceable assembly"). It does not explicitly use the "preferred position" formulation or otherwise place First Amendment rights above other non-economic liberties. Harlan Fiske Stone's Gobitis dissent mentions the process-clearing and "discrete and insular" rationales, but it nowhere claims that the First Amendment is to be privileged over other political rights. It's in his Opelika I dissent that Stone explicitly employs that formulation for the first time: "the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position." This more subtle reading of the decisions shows that a political order privileging the First Amendment was on the ascent during this period, but that it was not built all at once in 1938, nor complete by 1943.

III. Autonomy

Jim is among the most eloquent and committed defenders of individual autonomy today. And I quite agree that in the pluralistic order most of us accept today, it is absolutely essential to reconceive how the law can respect people of diverse experiences and life plans so as to promote human flourishing. But I don't pretend that sexual autonomy was on the minds of the Founding generation or that it is self-evident from the handful of cases decided. Rather, any right of autonomy must be (as Jim's own labors attest) constructed, articulated, and defended in ways that, if we are honest, will have seemed foreign to the generation that authored original text but will be persuasive to us living today. For me, Lawrence v. Texas is defensible on any number of grounds. So when I point out that the Lawrence Court has drawn on the First Amendment to "reconstruct" the notion of sexual privacy, I mean the following:

First, normative theory must be rooted in historicity if it hopes to persuade. Despite the fact that Justice Douglas may have downplayed the First Amendment over successive drafts, the published decision in Griswold v. Connecticut nevertheless draws heavily from First Amendment examples in its articulation of the various "zones of privacy." That Douglas was initially inclined to draw on the First Amendment more aggressively is compatible with the claim of Eloquence and Reason that the First Amendment has an influence—perhaps too much influence—on contemporary adjudication. For it's possible to say that being too wedded to the First Amendment may have prevented a more full-throated articulation of autonomy.

Second, Bowers v. Hardwick did violence to the emerging jurisprudence of privacy or autonomy; hence, the need for "reconstruction" of liberty insofar as human sexuality is concerned. Among other things, that decision appeared to make liberty turn on sexual preference (if the Court wished to return to some kind of privacy-is-for-procreation formulation, it should have overruled Eisenstadt v. Baird). But Bowers, while it damaged then-existing doctrine, also was a "socially plausible" reading of the Constitution in 1986. That social attitudes change, I think, is appropriately if cautiously acknowledged in Lawrence.

So, then, if I think Lawrence is socially plausible in 2003, normatively defensible, and even worth celebrating, what do I mean when I say that it is still necessary to engage "the hard work of making lasting connections" between the First Amendment and sexual liberty?

Just this: the cases do not articulate well why the right to free speech is implicated by the choice of sexual partners, for straights or for gays. Instead, Lawrence (incorporating Griswold and Casey) trades on widely-accepted belief in expressive values (by the way, I agree that today there is popular support for some notion of sexual autonomy). This type of appropriation and synthesis is a staple of constitutional decisionmaking--indeed, I have argued as much. But that doesn't change the fact that connections between domains of constitutional knowledge should be elaborated rather than merely asserted. Like the talented theorist he is, Jim points out that earlier cases already suggested that autonomy implicates expressive values. But those controversies involved making choices about whether or not to beget a child, and more importantly, the rulings only gesture in the direction of speech and association.

Do sexual choices really speak to the world in a coherent way or are they better understood as control over one's body or resistance of control by others? If sexual choices are expressive, under what circumstances? When securing the durable assent of elites and the general population is the name of the game, it's important to tend to these matters—if not in Lawrence, then down the road. Most of these questions having to do with persuasiveness lie beyond the scope of my book, which demonstrates only why arguing over liberty in such terms may be legitimate. Eloquence and Reason ends right around where Securing Constitutional Democracy begins.