podcast

by Dr. Paul Rahe
Professor of History
Hillsdale College
February 24, 2017
Part of the 2016-17 St. Vincent de Paul Lecture and Concert Series, endowed by Barbara and Paul Henkels

 

If I were a minister of the Gospel, I would begin my sermon today with a reference to a sacred text. Well, I am not a minister of the Gospel, but I nonetheless have in front of me a sacred text. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As you know, I am quoting the First Amendment to the American constitution.

Once that constitutional provision was the law of the land. For a great many decades, Congress made no law whatsoever “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to peaceably assemble and petition the Government for a redress of grievances.” And for a great many decades the states and localities respected the same principle.

Those days are now gone, however. Now we live in a brave, new world in which there is a great deal of legislation in place that has a considerable impact on the free exercise of religion and that abridges freedom of the speech, freedom of the press, and the right of the people to petition the government for a redress of grievances. The First Amendment has not been amended. It has not been repealed by the American people acting in a solemn fashion via the amending process provided for in the Constitution. But it is nonetheless well on its way to becoming a dead letter — thanks to the ambition of politicians, to the grand projects they pursue, and to a decision of the courts to strike a balance between the rights provided for by the First Amendment and other imperatives thought to be of greater or at least equal importance.

Whether our gradual abandonment of the First Amendment is a good thing, whether the principles articulated within that amendment are good principles, whether they still pertain is a question worth asking. For it has not always been obvious to human beings that the members of a particular political community should be free to speak their minds, to worship, and to teach religious doctrine as they wish. In fact, if you were to take the time to examine the entire sweep of human history, you would find that almost never have been men left free in these regards. We Americans are peculiar — or, at least, we used to be … peculiar.

Why did Americans once think that Congress should be prohibited from making any “law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances?” This question is, I think, relatively easy to answer. James Madison, who drafted the First Amendment to the Constitution; those in the First Federal Congress who approved it and sent it on to the states for consideration; and those in the state legislatures who ratified the amendment thought freedom of speech, freedom of the press, freedom of assembly, and the freedom to petition the government for a redress of grievances essential to self-government. They did not regard themselves as the rulers of the Americans. They thought of themselves as representatives of the people responsible to the people. It was through them that the people governed, and elections were held at frequent intervals to insure that the representatives of the people were forcefully reminded that they were mere intermediaries, not rulers, and to keep them faithful to their charge. There was every expectation that elections would be contested and that the results would frequently turn on questions of principle. This could not happen if there was no press to keep the people informed. It could not happen if the people were not free to argue things out in the public arena, and it could not happen if the people could not operate collectively by assembling and petitioning for a redress of grievances.

Elsewhere, in the 18th century, there were those who ruled the people, and they did so on the presumption that they knew the interests of the people better than the people did themselves. Plato’s Republic with its guardian class is an extreme and imaginary case, but the human possibility explored and articulated in that work was the common sense of the matter. Had you asked almost any magistrate at that time or any prelate, you would have been told that ordinary folk need guidance. The operative word was tutelage. In consequence, nearly everywhere there was a licensing of the press and there were restraints on religious dissent. Religious establishment and censorship were the norm — and even in Great Britain, where religious dissent was tolerated and licensing fell into abeyance, criticizing the government could give rise to a charge of seditious libel.

There is another way to put this. When the First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” it presupposes that the people of the United States can be trusted and that the members of Congress cannot. And there is reason for this. The latter have an interest that can set them at odds with their constituents. Put simply, those who hold high office do not want to be subject to criticism; and, tolerably often, they want to be re-elected — and they prefer that there be no effective opposition. To grant Congress the right to abridge freedom of speech, freedom of the press, the collective right to assemble and petition for a redress of grievances is to give the fox free rein within the hen house. It is to treat our lawmakers as arbiters in their own cause. It is, our forebears thought, the task of the people to hold their representatives accountable, and this they cannot do if their right to speak to their fellows concerning matters of political concern is in any way regulated by those on whose conduct in office they are sitting in judgment.

As you will see from my remarks, the freedom of speech that the First Amendment was designed to protect was freedom of political speech. No one in the Founding generation had artistic license in mind. No one supposed that pornography or blasphemy as such could not be banned. The pertinent passages from the First Amendment have to do with reporting the news and with public advocacy.

Times, as I said, have changed. We now have a Federal Election Commission — which tells us what we can do and what we cannot do with our own money when we engage in public advocacy, and it puts road blocks in the way of candidates raising money for their campaigns. This it does — despite the words “Congress shall make no law” — purportedly because sizable amounts of money corrupt. But the law’s real purpose is to protect incumbents and prevent the emergence of insurgencies. It is easy for an incumbent to raise small sums from a host of donors. It is next to impossible for an insurgent to do so — unless, of course, the insurgent is a celebrity already, in possession of a large following (think Donald Trump!); or a fabulously wealthy man spending his own money (think Mitt Romney).

There is even talk these days that the Federal Election Commission should regulate the internet, treating advocacy in a blogpost as a financial contribution to a candidate. I am myself a blogger. I have a website, and I write from time to time for a website called Ricochet. The price that one pays for having a website is negligible — as little as ten dollars a month. This is seen, however, as a threat. For the low price of entry means that the internet is a medium by means of which an insurgency can begin. Of course, no one dares to suggest that such a standard be applied to The New York Times, The Washington Post, or The Los Angeles Times. The legacy press — owned by the American aristocracy — is sacrosanct. It is the little guy on his internet soapbox who needs to be reined in, and there are those in Congress today who argue that the press should be licensed — that journalists should be certified, regulated, and required to meet certain standards like beauticians and bicycle-repairmen. Otherwise, are told, there might be malpractice and “fake news” might be propagated. But we should not kid ourselves. Laws made where no law is supposed to be made are always made in the interest of the few.

But this is not the worst of it. For when the courts decided that “Congress shall make no law” really means “Congress shall make no law that we do not approve of,” they opened the flood gates — and at the state and local level a great deal of legislation has been passed regulating what citizens can and cannot do by way of public advocacy, and these laws all make elected officials and their minions the arbiters of what constitutes the speech that can be tolerated. In other words, those on whom we sit in judgment on election day propose to sit in judgment on us and to regulate what we can say and when and where and how we can say it. In many cases, these laws put obstacles in the way of public assembly and cooperative efforts — because collective action is a real threat to the powers that be. In other cases, they ban speech that public officeholders regard as misleading — which is to say, these women and men presume to decide what is true and what is false.

There is more that can be said. Our last President seemed interested in shutting down civil society, and he hailed from a city where they really know how to do it. To this end, his administration considered the means by which the government could use its licensing power to intimidate radio station owners into shutting down conservative talk radio. To the same end, this President sought to have corporations seeking government contracts list their political donations. He was from Chicago. He understood how a political machine can isolate, intimidate, and crush all sources of opposition. As that machine and similar operations abroad — in Russia, for example, and in Turkey — have demonstrated, it is perfectly possible to have the forms of democracy without the reality.

And one of our two political parties is now committed to that same project. When the Supreme Court recently ruled in defense of the right of citizens to band together, pool their money, incorporate, and speak up not only on the issues being debated but also concerning the candidates running for office, forty-four Senators from that party presented an amendment aimed at allowing Congress to regulate freedom of speech, the right of assembly, and the right to petition for a redress of grievances. Yes, I said forty-four …

Section 1 of the proposed amendment (S. J. Res. 19) says: “Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”

Section 2 of the proposed amendment says: “Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

The point of the amendment, as was acknowledged at the time, was to overturn the Supreme Court decision in Buckley v. Valeo, which reasoned as follows: “The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama stemmed from the Court's recognition that [e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” In short, the aim of the amendment is to eliminate the right to assemble peaceably and petition for a redress of grievances. You must keep in mind that the act of assembling and petitioning is virtually guaranteed to influence elections. That is what distinguishes petitioning from begging.

Moreover, as one commentator noted at the time, “By implication, then, the proposed amendment also overturns the landmark civil rights case NAACP v. Alabama, which protected the privacy of the members of associations to allow them to engage in anonymous political speech. Congress — and the states, including Alabama — would now have the power to compel disclosure for any criticism of an elected official, and to outright ban speech by groups.”

There is an exception to this rule. Section 3 of the proposed amendment gives — you guessed it — the legacy press an express carve-out: “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.” The only individuals or groups allowed a megaphone are those who own the newspapers and the radio and television stations.

Now I am not worried that this means that Congress in the near future will actually send such an amendment to the states. That, I suspect, our Senators and Congressmen would not dare to do — for they know that we still hold elections and that if such an amendment were to pass there would be a hue and a cry in the localities. My worry is that this is a signal to the courts. The real story of the last century is that — as Woodrow Wilson openly, publicly advocated in his book The New Freedom — the courts have over and over and over again made it their business to bring constitutional law into accord with current political fashion. “Congress shall make no law” … surely, that cannot mean what it says. And presto! changeo! Today, it doesn’t mean what it says. It means what the courts want it to say.

A word should perhaps be said about current political fashion. At least in theory, universities should be the place where anything can be debated, where all claims are up for dispute, where freedom of speech knows no bounds, where evidence is allowed to defeat ideology — and it was once in these United States close to being true. But not today. Nearly all of our universities, public and private — with the exception of Hillsdale College and a handful of other institutions — take money from the federal government, and the courts have ruled that this legitimates that government imposing almost any condition on the receipt of that money that Congress or the regulatory agencies care to impose. The regulations regarding sexual harassment, sponsored by the Department of Education, have been interpreted so broadly as to make actionable in a court of law any conversation concerning women and men thought by a listener to create “a hostile environment.” In practice, this rules out the discussion of disputed questions — for, if anyone takes offense, the instructor will find himself (or herself) in hot water. And, of course, on many a campus, this new set of rules has been extended to race. Can one teach Jane Austen today? Can one intimate that she has something to teach us? Can one teach Mark Twain’s Huck Finn? There is language used by some of the characters in the novel that is offensive. To get along, today, in the academy, one has to go along — which means that, in the humanities and the social sciences, to an ever increasing degree, the questions of deepest interest — those that pertain to how we should live our lives — cannot be touched. For one cannot ask whether one way of life is superior to another without risking offense. If the university is to be “a safe space,” free from “micro-aggressions,” it will not be a sanctuary for free inquiry.

I mention the universities because there one sees in embryo what one will soon see in the larger world, and what is happening is a shutting down of controversial discourse … at least, insofar as that discourse does not contribute to the project favored by those who want to put an end to academic freedom and freedom of learning. For we should not kid ourselves. All of this is a prelude to shoving down everyone’s throats a new and unchallengeable orthodoxy. There will be no “safe space” for those who firmly disagree, and the aggression they encounter will not be “micro” in any way.

I will now turn to the question of religious freedom. Let me begin with a simple observation. It is no accident that John Locke, the Englishman who penned the Letter Concerning Toleration, was the man responsible, as a member of the Board of Trade, for England’s quiet abandonment of the licensing of the press. In modern times, intellectual freedom, political freedom, and religious liberty have always been inseparable.

There is another, perhaps a better way, to make the same point. Limited government is a recent phenomenon. It was crafted in the late-seventeenth century to solve an otherwise apparently insuperable problem: the catastrophic political consequences of the fact — as visible in late antiquity (especially in the Christian east) as it would be in the Christian west during and after the reformation — that the Christian faith tends to give rise to doctrinal disputes and sectarian divisions. Only if these can somehow be quarantined, John Locke and others thought, only if doctrinal disputes can be kept out of the political arena, only if political authority can be rendered neutral with regard to sectarian divisions, can these divisions be rendered neutral with regard to political authority and only then can there be domestic tranquillity within Christendom — and to this end Locke proposed that government be re-conceived, that it be refounded on the basis of an imaginary but utterly sensible social contract, that it be limited to the protection of the rights accorded human beings by nature, to the rights that no one in his right mind would even think of alienating — first and foremost, the right to life, liberty, and property — which is the formulation that you will find in the declarations of rights that George Mason wrote for the Virginia Constitution and John Adams penned for the Massachusetts Constitution, which is the formulation that Thomas Jefferson rephrased when he spoke of “Life, Liberty, and the Pursuit of Happiness” in the American Declaration of Independence.

It is not fortuitous that this same Thomas Jefferson asserted the existence of religious freedom as a natural right in his Virginia Statute of Religious Liberty. When he substituted Pursuit of Happiness for John Locke’s Property, he did not mean to deny that we have a natural right to the fruits of our own labor. Nor did he mean to make property rights dependent on positive law (as some suppose). In the Revisal of the Laws of Virginia that he penned in 1779, he restates John Locke’s trilogy — Life, Liberty, and Property — verbatim. No, when he substituted Pursuit of Happiness for Property Jefferson meant something more extensive than property — something for which the acquisition of property might be a means, something that also included religious faith. For Jews, Christians, and Muslims, as Jefferson well knew, the free exercise of religion is part and parcel of the Pursuit of Happiness. That is why the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” for the establishment of one religion leads nearly always to the prohibition of the free exercise of other religions or to the imposition of restraints on that exercise.

Let me be more precise. Consider the Declaration of Independence and the inalienable natural rights mentioned therein. Consider the Virginia Statute of Religious Freedom and its Defense of Religious Freedom as a Natural Right. The rights specified in these two documents — both drafted by the same man — have this in common: They are negative rights. In each case, it is the task of government to defend us against those who would interfere with our exercise of those rights — who would deprive us of life, liberty, and the pursuit of happiness as we conceive of that happiness (which is where both the acquisition and preservation of property and religious liberty come into it). We are to be constrained by this government only to the extent that we deprive our fellow citizens of life, liberty, and the pursuit of happiness, and it is our duty to cooperate with this government in protecting those rights. That is what constitutes justice under a limited government.

Notice this. We are to be constrained. We have to respect the rights of others. This means that religious liberty is a two-way street. To be accorded religious freedom one must be willing to respect the religious freedom of others. If I try to take another’s life, my life may be forfeit. If I try to deprive someone else of his liberty, my liberty may be forfeit. If I try to deprive someone else of his property, I might lose my life, my liberty, or my own property. We do have the right to self-defense; we do have courts; and we do have prisons after all. Similarly, if I try to deprive someone else of religious freedom and I do so on the basis of religious principles that I hold dear, I will find myself in trouble. Religious freedom is not and cannot be a license for crime. Nor can it be a justification for failing to perform one’s duties as a citizen. The First Federal Congress considered writing conscientious objection into the First Amendment, and they chose not to do so. When I become party to the social contract, I agree not to infringe on the rights of the other adherents, but I also agree to join with them in defending their rights, and they agree to join with me in defending my rights. An attack by a gang of criminals or a foreign country on one of us is an attack on us all. Conscientious objectors are free riders. They want to profit from the protection that the social contract provides without contributing. We may choose by dint of “legislative grace” to let them off the hook. But that is generosity on our part. It is not a matter of right.

Let me add that, if there is a religion that requires of its members that they take over the polity and impose on all of the citizens that which they consider to be Holy Law, that religion is in breach of the social contract — which requires that, in matters religious, we live and let live. Those unwilling to let others live cannot themselves be allowed to live.

I spoke earlier of negative rights. There is, however, another conception of rights. It asserts that it is the responsibility of government to guarantee to all Americans a set of positive rights — rights that it will exercise on their behalf. On 11 January 1944, in his State of the Union message, Franklin Delano Roosevelt delineated what he called an “economic bill of rights.” Here is what he said:

We cannot be content, no matter how high [our] general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth- is ill-fed, ill-clothed, ill housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.…

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

Here is the problem. Accepting this “economic bill of rights” requires a massive shift of responsibility from the individual, the family, and the local community to the central government. Accepting it requires a massive shift of power from the individual, the family, and the local community to the central government. Under the old dispensation, it was the responsibility of the individual citizens to provide for themselves — to find jobs; to negotiate adequate salaries; to find markets for what they produce, to locate niches where their work will be rewarded; to find decent housing and pay for it; to arrange for medical care; to lay money aside for old age, sickness, accident, and unemployment; and to seek an education suited to their abilities and their needs — and this they did with the help of their families, their friends, and their local communities. Under the new dispensation, this was to be the job of the federal government — and to fulfill this responsibility that government was to take from those inclined to provide for themselves in order to provide for those not so inclined. It is no accident that, when Franklin Delano Roosevelt spoke of “certain inalienable political rights,” he left property off the list. Nowhere does he assert that a man has a right to the fruits of his own labors.

Herein lies a problem. In the absence of secure property rights, none of the other natural rights mentioned in the Virginia and Massachusetts Declarations of Rights, in the Declaration of Independence, and in the Virginia Statute of Religious Freedom can be secure — for property is power. It is by means of the fruits of our own labor that we secure our freedom from domination. It is, moreover, by means of the property we have earned that we are able to pursue happiness insofar as it can be pursued in this world. A government that provides jobs; specifies salaries; guarantees markets; provides niches wherein one can work; guarantees housing; arranges for medical care; provides for our old age, sickness, accident, and unemployment; and provides for our education cannot but be a government in control of our lives. Such a government will be sorely tempted to decide how long we shall live and when we shall die. Such a government will be sorely tempted to commandeer our lives and subject us to its regimen. Such a government will be sorely tempted to define for us how we are to pursue happiness — and woe be unto any secular organization, synagogue, temple, or church that stands in its way. When the various Christian churches — above all, my own denomination, the Roman Catholic Church — embraced FDR’s “economic bill of rights,” as they did long ago, when they demanded that the government “ensure access to quality, affordable, life giving health for all,” they put their welfare, their liberties, and ours in the hands of men who will be and are sorely tempted to do them and us harm.

Limited government leaves us to our own devices. It allows us to pursue happiness, to worship, and to think and speak as we think fit. The nanny state, which looks after our happiness, does nothing of the sort. It is this that explains why Attorney General Erich Holder Sought to Assert the Right of the Federal Government to Oversee the Hiring and Firing of Religious Teachers by the Evangelical Lutheran Church. It is this that explains the so-called “HHS mandate,” requiring that corporations and even religious institutions, such as schools, universities, and religious orders, provide birth control and the morning-after pill (which induces an abortion) to their employees.

The latter deserves attention. For the “benefit” — if you can call it a benefit — is insubstantial. The last administration’s initial claim to the contrary notwithstanding, the pill and other birth control devices are not free. But the expense involved is trivial. Among those who are employed and have healthcare insurance, no one is hard put to come up with the paltry sum required.

This suggests that there can be only one reason why its principal proponents — Kathleen Sebelius, Nancy Pelosi, and Barack Obama — decided to proceed. They wanted to show the Catholic bishops and the laity who is boss. They wanted to make those who think contraception wrong and abortion a species of murder complicit in both. They wanted to rub the noses of their opponents in it. They wanted to marginalize them. Humiliation was, in fact, their only aim, and malice, their only motive.

Later, when, in response to the fierce resistance he had deliberately stirred up, the President offered the bishops what he called “an accommodation,” what he proffered was nothing more than a fig leaf. His maneuver was, in fact, a gesture of contempt, and it was Barack Obama’s final offer. From his perspective and from that of Sebelius and Pelosi, the genuine Catholics still within the Democratic coalition are no more than what Vladimir Lenin called “useful idiots,” and, now that the progressive project is near completion, they are expendable — for there is no longer any need to curry their favor. Contraception and the morning-after pill are a stalking horse. For the real aim is to prepare the way for requiring that every hospital do abortions, and if something is not done to push back and push back hard that is where we will go. And surely it will not stop there. For the point of making everyone complicit is to require that everyone approve of the new way of life that is being imposed on us all.

We are faced today with a political movement that constitutes a secular religion. There have been many such movements in the last hundred years — socialism, communism, fascism, national socialism — and they have this in common. They want to impose a doctrine; they want to make us live in accord with that doctrine; and they promise us salvation on earth. That is why genuine religion is an obstacle. That is why Christians and Jews must be made be made parties to that which many of them consider a terrible crime.

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