Academic journal article Constitutional Commentary

Free Speech and Obedience to Law

Academic journal article Constitutional Commentary

Free Speech and Obedience to Law

Article excerpt

I.

Several generations ago Alexander Meiklejohn asserted that among the virtues of a regime of freedom of speech was its connection with the obligation to obey the law. (1) More specifically, Meiklejohn maintained not only that the right to voice disagreements with laws was a morally and politically necessary condition of compelling people to obey laws with which they disagreed, but seemed to imply as well that people would in fact be more inclined to obey those laws when they were given the opportunity to object than would be the case were their dissenting voices to be stifled by official action.

The relationship between democratic legitimacy and freedom of speech has subsequently been the subject of analyses offered by Ronald Dworkin, (2) by Robert Post, (3) and, most recently, by James Weinstein in this Symposium (4) and elsewhere. (5) Weinstein in particular advances our understanding of the issue by drawing on the venerable distinction between normative legitimacy and descriptive (or sociological) legitimacy. (6) Normative legitimacy is a process-based philosophical idea, (7) and designates or describes those forms of governmental organization and governmental action that are right, or just, as matter of political philosophy. The idea is normative and not empirical, and a government or its actions are legitimate insofar as they are democratic, or egalitarian, or deliberative, or in some other way built on normatively desirable foundations. More specifically, normative legitimacy typically is taken as referring to the conditions permitting the political state to justifiably demand obedience from its citizens, and thus to impose its laws on those who refuse to obey. (8)

If we understand normative legitimacy as a fundamentally non-consequentialist and non-instrumental idea, and if we understand it as focused primarily on procedure in the broadest sense of that word, then we can say that a normatively desirable form of governmental organization is to be preferred independent of the value of the consequences that may flow from adopting it. We might believe, for example, that majoritarian democracy is a good in itself, and that it has moral merits as a form of decisionmaking independent of whether it produces better policies, or more citizen happiness, or more truth, or anything else. (9) And thus we might believe, as Weinstein plainly does believe, that allowing people to object to policies with which they disagree is a necessary component of normative legitimacy, and thus of the warrant of the state to enforce its directives by coercive means. From this perspective, normative legitimacy stands in no need of consequential, instrumental, or empirical justification. It is simply a matter of first-order political morality. In offering this claim, Weinstein seems largely correct, even though it might be plausible to argue that a democracy exists when people have the right to vote for their representatives, or have the right to vote on matters of policy, and that, especially in a representative rather than direct democracy, the right of the citizen to speak out is not a necessary condition of democratic legitimacy itself as long as the citizen can be part of choosing those who will represent her. (10)

Although there are substantial difficulties with treating representation as a sufficient condition for either democracy or legitimacy, I mention that position here only to highlight the fact that tying freedom of speech to normative legitimacy needs some argument, and that a strong and continuous right to freedom of speech is not entailed by the very idea of democracy, at least as long as the idea of representative democracy is not an oxymoron. Still, it seems difficult to imagine a process of selecting representatives or policies that is not crucially facilitated by direct citizen speech, and it seems even more difficult to imagine government by the people that does not permit those people to participate in policy-making outside of the episodic process of voting. …

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