Academic journal article
By Baker, C. Edwin
Constitutional Commentary , Vol. 27, No. 2
The legitimacy of the legal order depends, in part, on it respecting the autonomy that it must attribute to the people whom it asks to obey its laws. Despite the plethora of values served by speech, the need for this respect, I claim, provides the proper basis for giving free speech constitutional status.
To justify this claim requires development of five points. First, because the concept of autonomy (or the analogous concept of liberty, treated here as largely interchangeable) is notoriously slippery and subject to varying usages, Part I specifies the particular conception of autonomy that I consider constitutionally relevant and distinguishes it from a prominent alternative that, I believe, should be central legislatively as long as the legislation is consistent with the first conception. Second, since this version of autonomy is, in a sense, simply stipulated, the claim that it is the relevant conception for establishing legal legitimacy and, hence, should have a constitutionally foundational role requires defense and must be connected to constitutional interpretation. That is the subject of Part II. Part II also considers the often raised question of whether any constitutional or foundational role for autonomy should or even can be limited to speech or expressive behavior. Third, it must be shown that this conception of autonomy has sufficient bite to give relatively determinate answers to important First Amendment issues. Fourth, this proposed content must survive reflective equilibrium. For these tasks, giving protection to autonomy need not, and probably should not, duplicate (or merely describe or explain) existing constitutional holdings but should lead to a satisfying account of why many holdings are right and an appealing (or at least plausible) explanation of which other holdings should be rejected. Part III considers these two issues. Finally, interwoven into the remarks is development of a view that, rather than free speech being an essential attribute of an otherwise undefended but merely described theory of democracy or, maybe, of "our democracy," legal legitimacy--and respect for autonomy--requires both constitutional democracy and also broad speech freedom that encompasses non-political speech as a necessary limit on majoritarian or popular rule.
Those who disparage autonomy as a basic, virtually absolute First Amendment value usually take one of three tacks. First, they stipulate or imply that autonomy tot liberty) refers to an individual doing whatever she chooses. (1) This stipulation, often an intellectually lazy way to avoid thinking through the legal implications of a state commitment to respect autonomy, makes the term virtually meaningless for purposes of constructive legal theory or political theory (but maybe not moral theory where the question is often, "should I do this act, obey this law?"). Part I offers an alternative stipulation that, Part II claims, is required by constitutional and political theory. Second, they treat a laissez faire economic order as an implicit aspect of respecting autonomy--a view illustrated by many critical comments here. (2) Recognizing the problem this claim has for my views, I focused on and rejected this claim in my first published writing about free speech, (3) and restate my rejection here in Part III's discussion of commercial speech. I conclude that right-wing libertarian theory invokes an ideologically useful (to them) but intellectually indefensible conception of autonomy. (4) Third, most plausibly, those who do not regard autonomy as an absolute value, view the only humanly meaningful conception of autonomy to be some version of substantive autonomy, a view that would lead, for example, to the type of balancing advocated by Steve Shiffrin. (5) In the face of this pragmatic challenge, Part II seeks to show that a formal conception has relevance as a side constraint on law necessary for legal legitimacy and appropriate for constitutional theory. …