The American Constitution and the Limits of Free Speech

If I refer to the American Constitution it is because it is the template for most modern democratic nations in the way they aspire to treat human rights – even if only in theory. That American Constitution was approved 236 years ago, on September 17, 1787. It was created following a war that witnessed up to five times as many people die from disease and starvation as died in battle. There were those that felt it was not possible to fight for liberty if human rights were ignored. However, the main driver for the constitution was the need to provide a framework for a federal form of government without which the thirteen original member states remained disconnected from each other.  One nation was not possible without its unifying provisions. And it provided for civil rights that would be consistent across the separate states.  But there are two further documents that make up America’s founding, guiding ethos and they are the Bill of Rights and the Declaration of Independence. I will discuss them here, later.

People were suspicious of central authority.  They were weary of the abuse of parliament as well as kings (in this case the British one). But all kings and their aristocratic partners existed as self-perpetuating oligarchies.

Kings and emperors aspired to the status of earthly divinity and thereby most who ruled, demanded (and received) absolute loyalty.  Secular society had not yet been created and even when not governed as theocratic nation states, religious leaders inevitably bestowed the mantle of divine appointment on those who aspired to legitimise their rule.  Divine right was a crucial imprimatur to be invoked if things did not always go the way one intended.  Bureaucratic instruments ensured the “right kind of people” provided support; the few always acted against the interests of the many.

And so to return to the constitution, at its creation it did not protect the rights of slaves, Native Americans or women and together, they remained a repressed majority.

The American Constitution, created a blueprint for a society based on organising the nation through an administration that was kept in check by a doctrine of the separation of powers. Its influential opponents included prominent Founding Fathers who argued that the Constitution failed to protect the basic rights of the people. It was John Adams who in 1788 used the phrase "Tyranny of the Majority" to describe “a scenario in which decisions made by a majority place its interests so far above those of an individual or minority group as to constitute active oppression, comparable to that of tyrants and despots” (Wikipedia) and it was in response to this kind of thinking that the Bill of Rights was enacted. And Alexis de Tocqueville brought the term into prominence internationally when he published ‘Democracy in America’ in 1835.

It was this ongoing agitation that created the conditions for future judicial activism.

The first ten amendments to the Constitution are what we know as the US Bill of Rights and they became effective on December 15, 1791. 

The first amendment grants “Freedom of religion, speech, and the press; rights of assembly and petition.” 

It took a long time and very specific circumstances before inequality was tackled, even as imperfectly as it is today. 

The most controversial document of all was the Declaration of Independence.  It speaks of Natural Rights and in the Preamble it states that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Again, it was all about timing or at least, those that believed in its universal application explained it as an unfinished endeavour, a standard for perfection and one to which the Declaration represented an ongoing ideal awaiting completion.  In that way, after the fact, it became central to both the Constitution and the Bill of Rights it preceded.

In the 18^th and the 19^th Centuries, issues of personal freedom and freedom of expression did not have to contend with mass communication, near limitless wealth and (most) weapons of mass destruction. While it is futile to debate whether the founding fathers would have been quite so idealistic had the conditions been different the basic principles remain relevant even if we are too often insufficiently fast enough to react to threats against the Society those ideals were codified to defend.

Issues of identity, lawful protest and freedom of expression have become no-go areas that we are frightened to tackle as if everything in history is a forward march. But it is not. A nation at war must be able to defend itself while preserving the rule of law. Democracies have to preserve human rights but are too often fighting a war against people and groups happy to use the instruments of democracy to undermine (erode) and destroy those same institutions.

The American Constitution and its ancillary documents represent a framework for society that has stood the test of time.  But they are also ideals that need to be protected from those whose intent it is to invalidate them. It is not just America that is at fault here. Ideals can be placed out of reach so that they do not protect the people they are intended to serve. They become idols that are worshipped for them-selves and they replace that aspect of human responsibility without which we all live in a worshipful state of ignorance.

The most delicate balance exists between protecting the rights of citizens and giving them the licence to destroy the society.

The right to decide what constitutes incitement can change with the times however incitement always creates a momentum for violence that only someone attempting to tear down the edifice of democracy sees virtue in possessing.  Our society seems to have lost the enthusiasm to judge others as readily as others judge us. Perhaps that is because when we are morally selective the only defence is indifference.

The challenge for society is to define the limits of free speech: What is permissible, and what permissible language is not. Passionate beliefs are no excuse for failing to exercise self-control.  And it is irrelevant that some people truly believe they are endowed with divine permission to slander or to kill. Like human sacrifice, there are some uncivilised aspects of human behaviour best left to the professionals to explain and the law to debar.