The First Amendment Freedoms, Civil Peace and the Quest for Truth
Dry, Murray, Constitutional Commentary
Judicial review makes American constitutional law as intellectually engaging a subject of study as it is an important part of American government. By combining particular facts and legal controversies with appeals to principles of justice, American constitutional law is the country's practical political philosophy. It covers what Francis Bacon called "knowledges that are drenched in flesh and blood, ... about the which men's affections, praises, [and] fortunes do turn and are conversant."(1) The first amendment freedoms of speech and religion are particularly interesting and important because of their connection to the liberal principle of toleration, and through that principle to philosophy, or the quest for truth. The connection is the philosophic argument made in defense of laws which encouraged toleration; the argument claimed that truth as well as freedom benefitted from toleration. First made by John Milton and then extended by John Locke and Benedict de Spinoza, this argument succeeded in establishing civil peace and political freedom in England in the seventeenth century and in America and France in the eighteenth century.
The American founders, who drew on Locke and Charles de Montesquieu, believed that constitutional government was informed by philosophic truth. Do we still believe that? There is reason to doubt it. Here is a passage from Justice Oliver Wendell Holmes' dissent in an early speech case decided in 1919.
[W]hen men have realized that time-has upset many fighting
faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas--that the
best test of truth is the power of the thought to get itself accepted
in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out.
That at any rate is the theory of our Constitution.(2)
Justice Robert H. Jackson's court opinion in the 1943 flag salute case provides an important gloss on Holmes' statement. Explaining why public schools could not require anyone to salute the flag and recite the pledge of allegiance, Jackson wrote:
If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
The American founders' understanding of political truth implicitly acknowledged that individuals could define happiness largely in terms of their own desires and tastes. Still, America's philosophic understanding as a people has shifted from belief in a truth based on what it means to be a human being to confidence in progress to a proud affirmation of agreement to disagree. Today, many Americans think that they have no orthodoxy, or at least that "under the First Amendment there is no such thing as a false idea."(4) This "content neutral" approach to the first amendment has led to results that are difficult to reconcile with confidence in the "competition of the market," also known as the "marketplace of ideas" metaphor. For example, in the name of free expression, the Supreme Court has held that nude dancing is expressive conduct protected by the First Amendment.(5) It has also extended constitutional protection to flag burning,(6) cross burning and other hate speech,(7) pornography,(8) and unlimited expenditures on political campaigns.(9) Virtually unrestricted freedom seems to have buried any serious preoccupation with truth. Yet, the original philosophic arguments made on behalf of freedom of speech and religion were quite serious about the pursuit of truth. Apparently something went wrong along the way, although the Supreme Court continues to assert that "the purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas, in which truth will ultimately prevail. …