Freeing Speech: The Constitutional War over National Security

Freeing Speech: The Constitutional War over National Security

Freeing Speech: The Constitutional War over National Security

Freeing Speech: The Constitutional War over National Security


The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy's citizens to fully participate in the discussion. In Freeing Speech, John Denvir targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard.

Denvir argues that the First Amendment's goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press' ability to comment on public issues, and presidential speech on national security, Denvir examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.


The life of the law has not been logic;
it has been experience

—Oliver Wendell Holmes

While I am not a great admirer of President George W. Bush, I must admit that he did much to energize public interest in constitutional law. Time and again after one of Bush’s expansive uses of presidential power, students and friends would ask me, “Can he do that? Is it constitutional?” That turns out to be a question that will take a book to answer. The question itself assumes that the text of the Constitution draws bright lines between constitutional and unconstitutional actions. But the United States Constitution does not automatically churn out clear answers. It’s a 200-year-old document whose authors employed broad language to govern a small former colony perched on the Atlantic coast and that offers few clear answers to the issues facing a twenty-first-century superpower. It is Supreme Court justices who give the text meaning relevant to today’s issues. And the meanings they choose are fated to be controversial. To answer the question of the constitutionality of President Bush’s uses of presidential power, we must reject the “one clear answer” picture of constitutional law and accept the fact that constitutional interpretation is an intellectual battlefield where different visions of our collective future compete for dominance.

Not only is certitude in short supply in constitutional argument; we must also accept that the competing constitutional visions are influenced by politics. In fact, they tend over time to reflect the political philosophies . . .

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