Free Speech and Political Legitimacy: A Response to Ed Baker
Weinstein, James, Constitutional Commentary
Normative discussion too often suffers from lack of agreement on criteria by which to judge the merits of the various contending theories. Bereft of such common ground normative debate often has the deep subjectivity--and hence the productivity--of schoolyard boasts about whose dog is best. I was therefore delighted to discover that the normative essence of the autonomy-based theory of free speech that Ed Baker proposes in this Symposium is political legitimacy, (1) the same basic norm underlying the somewhat different visions of participatory democracy that Robert Post and I defend in a related symposium as the best explanation of the American free speech principle. (2) Having identified this common ground, I will in Part I of this response attempt to show that there is a firmer connection between legitimacy and participatory democracy than there is between legitimacy and the autonomy theory that Ed proposes. Part II responds to certain of Ed's claims about the fit between his theory and current free speech doctrine. Part III concludes this response with a short discussion of why overall doctrinal fit matters in determining the best theory of the First Amendment.
As Ed notes, political legitimacy is at least a partial solution to the age-old problem of justifying the "use of otherwise immoral force or coercion to enforce the law"; (3) or, relatedly, and adopting H.L.A. Hart's famous distinction, a partial answer to the question of what conditions are necessary to "obligate, not merely oblige people" to obey the law. (4) But though Ed, Robert, and I all ground our theories in political legitimacy, none of us so far in this discussion has explained precisely or in any detail what we mean by that term. So I will suggest that the term "legitimacy" in this context has both a descriptive and a normative sense: descriptively, a legal system is invested with legitimacy to the extent that citizens obey the laws not just out of fear of punishment but also out of a sense of duty (or "obligation," to use Hart's term); or if not out of something as strong as duty, at least because they think that obeying the law is generally the right thing to do. Normatively, a legal system is legitimate if it warrants, on moral grounds, the allegiance of its citizens. (5)
Ed's use of the term in his article for this Symposium suggests that he is concerned predominately, if not exclusively, with the normative sense of the term, which may mean that our mutual reliance on legitimacy provides common ground only with respect to the normative but not the descriptive sense. (6) It seems to me, however, that these two senses of legitimacy converge at least at the following point: one reason that citizens might feel obligated rather than merely obliged to obey the laws, or at least might believe that obeying the laws is generally the right thing to do, is their warranted conviction that the legal system is, on the whole, moral. For this reason, I will consider both senses of the term in the discussion that follows. However, in an attempt to find common ground on which to engage Ed, I will emphasize the normative dimension.
B. LEGITIMACY AND DEMOCRACY
Although ultimately basing his theory in autonomy, it is significant that Ed recognizes that "[d]emocracy is one answer" to the question of what can make a legal order legitimate. Indeed, he even allows that because at least in a formal sense
a democratic process ... 'equally' respects people as properly having a 'say' in the rules they live under.... [D]emocracy is arguably the best that can be done, given the impossibility (or, at least, lack of pragmatic appeal) of anarchic or completely voluntaristic social life, for justifying the legitimacy of the social order. (7)
Given this paean to democracy's legitimating power, why then doesn't Ed agree with Robert and me that it is that speech by which people "hav[e] a 'say' in the rules they live under" that is the primary concern of the First Amendment? …