The First Amendment and the Future of American Democracy
Rabkin, Jeremy
Bogart) examined, in its superficial way, the other side of the ropes--the business enterprise, the dealing in flesh, the corruption-but opted as usual for the confused, victimized pug as the...
...The root causes, as Prof...
...First, "Funky Chic," something that "was flying through London like an infected bat" in 1969: "So it happened that one night in a club called Arethusa, a favorite spot of the London bon ton, I witnessed the following: A man comes running into the Gents and squares off in front of a mirror, removes his tie and stuffs it into a pocket of his leather coat, jerks open the top four buttons of his shirt, shoves his fingers in John R. Coyne, Jr., an associate of The Alternative, is author of The Kumquat Statement...
...He points to the 26 The Alternative: An American Spectator March 1977 declining force of religion in American life, the instability of modern families, and the erosion of conventional civilities in public discourse, as among the ominous developments clouding the future of liberal democracy in this country...
...Both approaches, in a sense, relieve the Court of the burden of judgment...
...We have been taught by the lag' that they are not illegitimate and the legitimacy follows as a matter of course...
...They did not, for example, believe that the right of free speech extended to those attacking the self-evident truths of the Declaration of Independence...
...They understood free speech as a necessary element in the process of selfgovernment, but for this very reason they did not believe that speech threatening to public morals or to orderly discussion should ever be immune to governmental restraints...
...In fact, almost all these alarming trends of the late '60s seem to have lost ground in recent years and the social atmosphere is perhaps now healthier, the prospects for American democracy now brighter than for some time past...
...needless injury if governmental power were still limited by traditional constitutional doctrines, but no one, it is argued, can really be hurt by forcing the government to keep hands off religion or "free expression...
...wearing her blue jeans and her blue work shirt, open to the sternum, with her long pre-Raphaelite hair parted on the top of the skull, uncoiffed but recently washed and blown dry with a Continental pro-style dryer (the word-of-mouth that year said the Continental gave her more 'body')...and she is telling her interviewer: " 'We're not having any "coming-out balls" this year or any "deb parties" or any of that...We're tired of cotillions and hunt cups and smart weekends...
...it was blind to realities in bringing even abusive or disruptive forms of public "expression" under the constitutional immunity afforded by the First Amendment...
...It should be said at once that Berns is not simply displaying crankiness or rigidity in warning about these trends...
...On the other hand, the Founders did take for granted that the authority of the Constitution, though secular in origin, must--in legal terms--be above the claims of religious opinion...
...it was scandalously irresponsible in extending First Amendment protection to the pornography industry...
...Dialogue drags, and incidental encounters are mercilessly stretched into soliloquies with lingering shots of facial expressions...
...He insists, however, that it should not prohibit the government from penalizing or restraining anti-democratic organizations (like the Communist Party), whether they now pose a serious threat or not...
...Rocky is a good example of how delicate is the task of producing a play on a bare stage...
...In his view, the First Amendment must be understood as protecting all forms of political speech, so long as they are expressed in decent language...
...that in a society which evades its responsibility by thrusting upon courts the nurture of that spirit, that spirit in the end will perish...
...Furthermore, it is completely unbelievable...
...But it is one thing to criticize the Court for closing its eyes to these trends and another to suggest that the Court somehow is complicit in them...
...he recently told a magazine interviewer that he believes in reincarnation...
...Join [] Irving Kristol [] Milton Friedman [] William F. Buckley, Jr...
...A few samplings...
...All of these trends, he argues, have been encouraged by the Court's recklessly expansive interpretation of the First Amendment...
...But between the extremes, Berns argues persuasively that the courts need not provide the unhealthier trends in our society with a further push from the bench...
...Likewise he argues that the government should be allowed to restrain indecent or abusive forms of expression, whether they are likely to provoke violent response (in effect, the Court's present test) or not...
...that a society where that spirit flourishes, no court need save...
...In the end, he is willing to rely on the case-bycase judgment of the courts to see that the lines of prohibition are fairly drawn...
...BOOK REVIEW The First Amendment and the Future of American Democracy WalterBerns / BasicBooks / $12.50 Jeremy Rabkin In the late 1930s, the Supreme Court largely abandoned its traditional defense of property rights and also gave up its long struggle to maintain a balance in the federal system by keeping Congress within the bounds of the interstate commerce clause...
...Still Berns concludes that "the cultivation of those virtues [decency and self-restraint] is not readily accomplished in a liberal democracy and it cannot even be attempted [emphasis supplied] until the Supreme Court is persuaded to forego its doctrinaire attachment to 'freedom of expression' and to complete separation of church and state...
...Stallone is as good a candidate as any, and seems destined to succeed anyway...
...This pattern has been widely applauded, though it finds no clear support in the text of the Consititution...
...The Founders, almost without exception, regarded the continued strength of religious belief as vital to the stability of republican government...
...Berns demonstrates that the Framers of the First Amendment (with perhaps the significant exception of James Madison) were therefore anxious that the language of the "nonestablishment" clause not be taken to imply that government must remain neutral between religion and irreligion, as well as between sects...
...this, notwithstanding the rather flexible application of the "wall" metaphor which has allowed the Court to sanction tax exemptions for church property and a variety of indirect financial aids (though, of course, not all that have been attempted) to religious institutions...
...William E. Simon and thousands of other thoughtful Americans who read the The Alternative...
...To make sure you receive your copy of The Alternative regularly (we are rarely found on newsstands), use this handy order form and subscribe today...
...Berns acknowledges that governmental authorities must act with prudence in these areas, as in the suppression of pornography, an action he strongly favors...
...With respect to the particular Court decisions he singles out for discussion in this book, his criticisms also seems to me, in almost every instance, quite well taken...
...Giving weight to these criticisms are Berns' extended discussions of the original understanding of the religion and speech clauses of the First Amendment...
...I think I was guillotined during the French Revolution," he said...
...In most of Wolfe's writing, in fact, style is substance...
...yet I doubt whether Prof...
...On the other hand, the Supreme Court in recent years has also thought the better of some of its earlier, more extreme First Amendment decisions (as it did in redefining the scope of First Amendment protection for pornography in 1973...
...Most emphatically is this true in First Amendment adjudication, he argues, because restrictions on governmental activity in this area are, in the last analysis, quite far...
...The Rocky-and-his-girl-friend subplot is beaten to death, and thrown in gratuitously at awkward moments, fatally interrupting what action there is...
...Overall Berns does make a persuasive case for his narrower--and, as he demonstrates, more traditional--approach to the The Alternative "...a wonderfully lively highbrow, iconbusting neoconservative, brawlingly staid monthly" --William F. Buckley, Jr...
...In his elaborate discussion of the controversy over the Alien and Sedition Acts in 1798, Berns shows that even the Jeffersonians did not oppose, in principle, the suppression of seditious or anti-republican speech...
...The real interest in Rocky lies off the set...
...Thus Berns tells us that " i t is no longer respectable for academics and 'intellectuals' to say" that Communist Party membership is incompatible with American citizenship "because it is no longer respectable in the law of the Constitution...
...each pose for the health of our democracy...
...I spent last weekend at the day-care center, looking after the most beautiful black children...and learning from them.' " In "The Intelligent Coed's Guide to America," Wolfe lists the criteria necessary for certification as an intellectual in the late sixties, when pride in status had replaced pride in function: "...by the 1960's it was no longer necessary to produce literature, scholarship, or art--or even to be involved in such matters, except as a consumer--in order to qualify as an intellectual...
...There she is in the photograph...
...The camera work is awkward...
...And if one is to deal in extreme formulations, there is probably less validity in some of Berns' bitter charges than in the oft-quoted dictum of Judge Learned Hand, who thought he knew at least "that a society so riven that the spirit of moderation is gone, no court can save...
...You want to know what I did last weekend...
...Berns does not argue for extensive censorship...
...it is that...
...Berns is persuasive when he argues that the law acts by influencing opinion as much as by coercing conduct, but I doubt that many fair-minded observers will attribute this much influence to decisions of the Supreme Court...
...Berns is highly critical of the Court's readiness in these" cases to champion liberty in almost absolute terms, without giving sufficient attention to the problem that, in practice, these liberties are contigent on the survival of liberal democracy...
...Walter Berns has been a thoughtful critic of the Court's work for more than two decades now, and central to all his criticism has been his insistence that the Court cannot, in the end, evade its burden of judgment...
...First Amendment case law, almost entirely the work of twentieth-century Courts, plainly reflects the new emphasis: almost in proportion as it has come to defer to legislative judgment in the economic sphere, the Court has interpreted the prohibitions on governmental activity implied in the First Amendment more expansively and enforced them more intransigently...
...Such independence of mind is admirable in principle, but compromise in this case might have been the wiser route...
...Berns himself well knows, run much deeper...
...Those who defend it often observe that government has no comparable justification to interfere with free expression as it does with the free market: workers," farmers, stockholders, consumers--all of us would be exposed to Jeremy Rabkin is a graduate student in American government at Harvard...
...Berns' book is essentially an attack on the doctrinaire libertarianism that has characterized the First Amendment views of several members of the Court in the last thirty years (most notably Justices Black and Douglas and, in an earlier era, Justice Oliver Wendell Holmes) and has often won over a majority of the justices in the resolution of particular cases...
...Nevertheless, he has done us a service by combining the essentials of these scattered pieces into a single integrated study, where his earlier lines of criticism against the Court gain added resonance and clarity in the larger setting...
...As it is easier to leave the "reasonableness" of economic regulatory schemes to the presumed wisdom of the legislatures (or the safeguarding of federalism to the presumed prudence of Congress), so it is easier to bar all state intrusion on free speech--or state aids to religion--than to judge in each case the actual constitutional propriety of the challenged measure...
...Or at the least, he demonstrates that the courts cannot claim to be bound by the historical meaning of the First Amendment when they do so...
...Bogart) examined, in its superficial way, the other side of the ropes--the business enterprise, the dealing in flesh, the corruption-but opted as usual for the confused, victimized pug as the center of the action...
...It is painful to watch, and soon the examples are distractingly apparent and abundant...
...But perhaps he thinks the prevailing secularist and libertarian biases of the judiciary would render his own interpretations of the First Amendment safe in their hands...
...But one cannot help feeling that the book is somewhat marred by its excessively polemical tone...
...Berns over the past ten years...
...I say, let us have no more cauliflower ears...
...Or at least, it cannot do so without danger to the country...
...But it is a polemic informed by careful study of the writings and practices of the Founding Fathers, as well as by long reflection on the problems of liberal democracy...
...Sylvester Stallone wrote the story and was determined to play the lead...
...He employs a vaudeville Brooklyn accent to represent a native of Philadelphia...
...People are what they say and how they say it, what they wear, what they surround themselves with, how they act...
...Star quality, after all, is an elusive and indefinable gift, and comes from the most unlikely sources...
...Rocky is a clod, and it is a continual mystery how a good-looking, sharp-dressing, grammatical dame like that could bear to be in the same room with him...
...The Founders could not have accepted (nor can Berns) that expansive reading of the "free exercise" clause of the First Amendment which has led the Court in a few recent cases to create, in effect, a constitutionallybased right of civil disobedience to otherwise valid and binding laws, solely on grounds of conflicting personal belief...
...Thus the Court, he insists, was shortsighted (and also confused) in reading the "nonestablishment" clause as erecting "a wall of separation between church and state...
...And in like fashion, Berns suggests that the Court's "wall of separation" approach to the "non-establishment" clause is not only wrong in principle (certainly a plausible enough argument) but has somehow been a very significant factor in the decline of religion...
...BOOK REVIEW Mauve Gloves & Madmen, Clutter & Vine Tom Wolfe / Farrar, Straus and Giroux / $8.95 John R. Coyne, Jr...
...It is easy to imagine how this new principle might be abused in states or localities dominated by only one or two sects and as easy to imagine how it might become a source of emotional community conflict...
...Scenes are protracted, for example, and usually needlessly...
...There is one particularly tortuous scene of Rocky in training, filmed silently, running through the park, exercising, sweating, practicing punches and racing through a railroad siding to the accompaniment of an un-synchronized rock masterpiece all interminable, all unbearable...
...THE ALTERNATIVE, Subscription Department, P.O...
...under the hair on the top of his head and starts thrashing and tousling it into a ferocious disarray, steps back and appraises the results, turns his head this way and that, pulls his shirt open a little wider to let the hair on his chest sprout out, and then, seeing that everything is just so, heads in toward the dining room for the main course.' ' A year later, "Funky Chic came skipping into the United States...in the form of such marvelous figures as the Debutante in Blue Jeans...
...Yes, the decline of religion is a disturbing phenomenon for friends of liberal democracy and yes, the much celebrated revolution in sexual mores has some disturbing political implications...
...He is convinced, obviously, that he has wrought a cinematic tour de force, defying convention, with a bleary eye to the Academy Awards and future triumphs...
...When I see a movie about a person being guillotined, I have the strangest feeling I know what it was like...
...In general, it is somewhat curious how much Berns would rely on the judgment of the courts, given his very dim view of some of the judgments they have recently displayed...
...Judging from the credits, Stallone seems also to have written some of the songs, filled in as script girl, hired his brother-in-law to hold the lights, and built some of the sets with his own hammer and nails...
...Berns would give (and I doubt more strongly whether he would be right to give) the Court, itself, much credit for the improvement in the nation's political climate...
...It was only necessary to live la vie intellectuelle...
...from being inconsequential...
...She was to be found on the fashion pages in every city of any size in the country...
...I know what he means...
...In so doing he ran afoul of the studio moguls, if such there be today, and was obliged to produce the film himself on a modest, indeed impoverished, budget...
...I recently burned my hand fixing a carburetor and felt like one of the Oxford martyrs...
...You can't summarize Tom Wolfe...
...In the same way, Berns would presumably rely on the judgment of courts to see that his narrower interpretation of the "non-establishment" clause is not squeezed into insignificance...
...In the end, it is perhaps best to admit that we do not know what law governs the spiritual resiliency of nations...
...Though conceding the danger to be less immediate, Berns also berates the Court for extending First Amendment protection on some occasions to avowedly anti-democratic organizations like the Communist Party...
...1970...
...Yet there is, after all, a certain underlying continuity between these broadly divergent approaches, a practical connection made most explicit in the populist rhetoric of a First Amendment "absolutist" like the late Justice Black...
...Well, all that may come to pass, and given the sense of the times, probably will...
...Nor did the Founders ever imagine that obscene or indecent speech, or abusive forms of expression, were entitled to constitutional protection...
...For the most part, the book draws on arguments and scholarship already published in various articles by Prof...
...As for Sylvester Stallone, it is tempting to crib Dorothy Parker's remark about Katherine Hepburn, namely that he runs the gamut of emotions from A to B. Stallone has one facial expression, dulleyed with his mouth open, and seems convinced that an aura of silent strength is best conveyed by appearing to be under the influence of depressants...
...Summaries can't adequately deal with style, and when you attempt to peel the style from a Wolfe piece, you take with it great swaths of substance...
...Yes, the vulgarity and at times the abusiveness of public discourse is cause for concern and yes, so too is the greater tolerance sometimes accorded extremist groups in the past decade...
...Berns criticizes in this connection the Amish school decision, Yoder v. Wisconsin [1972], and conscientious objector decisions such as Welsh v. U.S...
...For he does place a heavier burden on the courts in this area when he argues that the promotion of religion in general (i.e., on a nonsectarian basis) is a legitimate end for governmental action, because it has a secular purpose-promoting the moral restraints inculcated by religion...
...If corners are to be cut it is probably best to be brazen about it, because in trying to look expensive the meager resources inevitably look cheap...
...Box 877, Bloomington, Indiana 47401 Please enter a [] new [] renewal subscription for: D One year -- $10 [] Two years -- $18 [] Three years -- $25 [] Payment enclosed [] Please bill me (please print) Name Address City State Zip 106B The Alternative: An American Spectator March 1977 27 First Amendment...
...And, at least in tone...
...Similarly, Berns demonstrates that the Founders never regarded the right of free speech as unlimited...
...At another point: "...vulgarities expressed publicly...have become an accepted mode of discourse...
...A little brown bread in the bread box, a lapsed pledge card to CORE, a stereo and a record rack full of Coltrane and all the Beatles albums from Revolver on, white walls, a huge Dracaena marginata plant, which is there because all the furniture is 28 The Alternative: An American Spectator March 1977...
...In the decades since, the Court has instead become increasingly vigilant in its defense of noneconomic liberties or, as they are sometimes called, "human rights--presumably to distinguish them from those rights tainted by the inhuman institution of property...
...Berns' latest book, The First Amendment and the Future of American Democracy, is sure to be labeled a polemic...
...indeed he speaks quite soberly and sensitively about the dangers they...
Vol. 10 • March 1977 • No. 6
