The First Amendment: Saving Us from Ourselves
Talbot, Cory A., Brigham Young University Law Review
No Liberty for License: The Forgotten Logic of the First Amendment
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."1
"The First Amendment is not difficult to interpret."2 However, its interpretation has "taken some wrong and dangerous turns-not by malice, but by superficial thinking."3 So concludes Dr. David Lowenthal4 in No Liberty for License: The Forgotten Logic of the First Amendment. The book is a criticism of the Supreme Court's modern interpretation of the First Amendment; "the Court made individual freedom its god-at the expense of the moral, social, and political needs of ordered society."5
The attack on current First Amendment jurisprudence focuses on (1) its inadequacy in dealing with revolutionary groups, e.g., the Ku Klux Klan or the Black Panthers; (2) its indulgence in obscenity; and (3) its establishment of a "wall of separation" between church and state.6 More specifically, the bulk of this assault is centered on the legacy of Justice Holmes,7 a legacy that, according to Dr. Lowenthal, impermissibly broadened First Amendment interpretation to protect revolutionary groups and obscenity. Beyond this, Dr. Lowenthal contends that the "wall of separation" between church and state runs counter to the original intent of the framers.8 Each prong of Dr. Lowenthal's arguments reaches the same conclusion: the Supreme Court has led the country toward a slippery slope of license and anarchy in its interpretation of the First Amendment.
The book claims as its foundation the original intention and meaning of the First Amendment,9 raising two questions: First, has Dr. Lowenthal indeed discovered the true intent of the framers? Second, are we bound by that original intention? As to the former question, Dr. Lowenthal's interpretations are questionable; they go even farther than other originalist arguments; they are often based not on the words of the framers, but on the philosophies of the day. The second question is equally troubling. "Originalism" is a much criticized and hotly debated theory of constitutional law. Yet, while recognizing this contention, Dr. Lowenthal gives the issue only shallow analysis.
Dr. Lowenthal argues that the Supreme Court erred in incorporating the First Amendment into the Fourteenth, asserting incorporation is both illogical and internally inconsistent with the language of the First Amendment. While this may very well be true, Dr. Lowenthal fails to adequately address the Supreme Court's actual rationale in incorporating the principles of the First Amendment into the Fourteenth.
The author concludes that the Supreme Court has compromised the original social compact of this nation in order to champion the individual freedoms noted in the Constitution. The Court has forgotten the obligations imposed by the social compact. Without these obligations, there is no counterbalance to personal liberty. Complete liberty, without limitation, degenerates into license.
II. REVOLUTIONARY GROUPS, OBSCENITY, RELIGION AND THE FIRST AMENDMENT
The book is actually a composition of three distinct aspects of First Amendment jurisprudence. Dr. Lowenthal discusses the status of revolutionary groups, obscenity, and separation of church and state under the First Amendment. Each of these sections is tied to the others by the notion that the First Amendment's interpretation has been tainted by a shift in philosophy; the founders and framers generally relied on the philosophy of Locke, with its accompanying social compact, while the Supreme Court has focused on individual rights championed by Mill and even Darwin.10
A. Revolutionary Groups
The democracies in both the Wiemar Republic and Czechoslovakia collapsed due to legalized revolutionary parties. …