Free Speech

Our Largely Non-Libertarian Constitution

Many restrictions on liberty may be unwise and wrong -- but not unconstitutional.

|The Volokh Conspiracy |

My post on Why There's No First Amendment Problem With Compulsory Union Agency Fees drew many interesting comments, and I hope to respond to some of them. Let me turn first to this one:

Professor, whatever you may say about thus surprising position, it is decidedly not libertarian….

The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise.

A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired?

Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness.

Now I'm not persuaded by the substantive argument here: True, the government has the right to compel many things that other entities, such as unions, can't. But when a government employee is require to pay union agency fees, that requirement is still imposed by the government, much as the requirement to pay taxes is imposed by the government. (Indeed, requiring government employees to pay agency fees burdens liberty less than does requiring people to pay taxes; government employees could escape agency fees by changing jobs, and taxpayers can't.) And while the government can't require people to "support" right-to-life organizations in the sense of expressing agreement with them, it can certainly require people to financially support—via taxes—the government's own anti-abortion advocacy; if so, I think it can equally require people to pay taxes to other organizations that end up using some of that money for anti-abortion advocacy.

But there's a deeper point here, and that has to do with my position on the First Amendment / agency fee question being "decidedly not libertarian." Indeed, the position certainly is not libertarian. Yet the proper interpretation of the Constitution is often not libertarian, I think, because the Constitution is not primarily a libertarian document.

The Constitution, first and foremost, establishes a federal government. Indeed, it deliberately establishes a stronger federal government than existed before. It also assumes the existence of state governments. It sets up a structure for the federal government that enables democratic lawmaking; state constitutions do the same for state governments. These constitutions do set up checks and balances aimed in part at preventing certain forms of tyranny. But the constitutions certainly authorize a wide range of constraints on liberty, chiefly because they leave judgments about the proper scope of liberty—and the proper restraints on liberty—to the democratic process.

Now the Bill of Rights, and some similar provisions in other parts of the Constitution, are indeed supposed to directly protect liberty, and courts are understood as having the duty to enforce those protections. In that respect, the Free Speech Clause, for instance, is libertarian; certainly the modern law of the Free Speech Clause has provided broad protection for liberty of speech.

But the Free Speech Clause deliberately identifies a certain zone of liberty—the freedom of speech—that is an exception to the normal rule of political decisionmaking. Government action that doesn't intrude on the freedom of speech may be unlibertarian, may be unwise, may be oppressive, may be many things, but it's not a violation of the Free Speech Clause.

The legal system thus needs to draw a line between what constitutes the freedom of speech and what doesn't, and in particular what constitutes a speech restriction (or a speech compulsion) and what doesn't. This isn't an easy process, and it isn't one that's always defined by the literal meaning of the word "speech." (For more on how Anglo-American law has long treated certain kinds of symbolic expression as tantamount to verbal expression, for instance, see my article on Symbolic Expression and the Original Meaning of the First Amendment.) But I see no basis for concluding that such a line should always be drawn in an especially "Libertarian" way, for instance by defining "freedom of speech" to include "freedom from being required to pay money that will be used for speech," or "freedom from being required to pay money directly to nongovernmental organizations which will then use that money for speech."

Will's and my brief goes into that substantive argument in more detail; please have a look at that if you're interested. But the fact that this analysis isn't "libertarian" does not trouble me at all. Indeed, if all my judgments about free speech questions—including about questions that do not actually involve outright restrictions on outright speech—always yielded the "libertarian" result, then I think that itself would be reason to doubt my "thoughtfulness."

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  1. This post makes an important point: that the constitution is not primarily a libertarian document. It was written by men creating a powerful central government, not as a check on powerful government. They deposed the existing US government comprised of the Articles of Confederation, which in the view of the prevailing founders was neither sufficiently strong not consolidated. Many libertarians mistakenly buy into the small government purpose of the constitution, following the path that Ron Paul, among others, has tread. Sheldon Richman has a recent book, America’s Counter-Revolution: The Constitution Revisited, on this very topic. Libertarianism is not consonant with, nor even necessarily compatible with, constitutionalism.

    1. I disagree. The Founders were creating a more powerful central government than had been possible under the Articles of Confederation but “more” is a relative statement. The Founders explicitly built the new federal government on the principle of enumerated powers. Their supplementary writings reinforce this interpretation. The First Amendment is not “carved out” as an exception to government powers. Many of the Founders argued that the First Amendment was unnecessary because restricting speech wasn’t an enumerated power in the first place. In their minds, the First Amendment was passed as a ‘belt and suspenders’ protection.

      1. Founders seem split on the issue. I would also argue the Civil War Amendments were a fundamental change in our Constitutional system.

        1. “Founders seem split on the issue”

          However, the Virginia delegation proposed a very broad legislative power: “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by exercise of individual legislation”…and it was rejected as a non-starter…. in favor of enumeration…whose purpose was then reinforced by the 10th amendment. It would seem unkind to characterize the majority view of the founders as being narrowly divided or “split” on this question.

          The 13-15A amendments certainly provided an avenue for Congress to legislate to ensure equal protection…..and ultimately legitimating the 1866 Civil Rights Act…..but I don’t see these amendments as reversing or weakening the concept of enumerated power. I could agree that the country has become less state-oriented, less agriculture-focused, and less wary of central power….but that does not mean that we should read these modern developments into the founding era.

          1. It’s probably worth noting that federal government spending as a percentage of GDP was higher after the Civil War than before, but not by much. The difference may be attributable to paying down war debt. Other than a small bump for the Spanish-American War and a huge jump for World War I, federal spending returned to a level roughly comparable to pre-Civil War years until the Great Depression. Then the New Deal came in and things haven’t been the same since. This suggests that the Civil War amendments themselves didn’t have as big of an impact on the role of the federal government as many people assume.

    2. While the US Constitution created a more powerful central government, most people don’t realize the power structure it created. We all know that Congress, supposedly, has limited powers. But limitations weren’t really placed on the President because?as a few authors have pointed out?the Founders liked the concept of an independent leader functioning both as the head of government and the head of state.

      Under the Articles of the Confederation, there was no executive. When it was created by the constitution, the president had much more power than an English monarch wielded since the Glorious Revolution. The post-Stuart monarchs couldn’t veto legislative acts, make treaties, direct government employees, or conduct governmental affairs; the president is specifically given those powers. On top of that, the president?as Donald Trump continually reminds us?is the only individual that matters since all executive power is vested in him. Legally, the king required a group of ministers to do his “governing” in name only.

      For one example of this line of thought, see Eric Nelson’s The Royalist Revolution: Monarchy and the American Founding.

    3. My take has always been that the antifederalists succeeded post-ratification of spinning the document they opposed as being actually something benign that didn’t threaten liberty. Since they started winning elections, we ended up with a theoretically powerful federal government that often didn’t exercise that power. Since early practice set a precedent for what our government was supposed to originally be, many libertarians have followed that antifederalist narrative to this day.

  2. Very Strange.

    You seem to be asserting that constitutions properly authorize *any* action that *can* be done by government, provided it doesn’t violate the strict bounds of liberties cited. Thus, there is a constrained “zone of liberty”, but no constraint on the “zone of law”.

    This might lead one to conclude that the federal enumerated powers are just a few convenient examples of the innumerable things government *can* do … simply because it can.

    To the specific point, you claim that freedom of speech does not include “freedom from being required to pay money that will be used for speech.” This implies that agency (access to media) severs any legal right to expression.

    For example, I can legitimately be required by government to subscribe to the New York Times, even if I disagree with everything they print and even if speech is their only product. That is, with legislation, the NYTimes is “free to coerce” my support for their speech.

    Mandatory agency fees of are of the same kin: I can be required to support the expression of views with which I disagree. The agency is “free to coerce” my support, provided a majority of Congress allows it.

    Your argument strikes me, “with all due respect”, as ludicrous.

    1. Can the government spend tax revenue on paying for a free copy of the NY Times for every citizen?

    2. “For example, I can legitimately be required by government to subscribe to the New York Times”

      Doesn’t NFIB v Sebelius say you can’t (although the government could impose a non-subscriber tax on you)?

  3. Under your analysis, I see nothing to prevent the government from simply passing a law requiring individuals to pay $500 a year directly to Planned Parenthood. And that cannot be the case. There is a difference between the government collecting taxes and disbursing them for the government’s purposes, and the government requiring payment from one person to another, and that’s something you just seem to assume away.

    1. What is the difference?

      1. One is an enumerated power, and the other isn’t?

        Literally: Levying taxes is an enumerated power. Spending money is an enumerated power. But directing citizens to give money to other citizens?

        Not in the list.

        You might think, “What’s the big difference?”. The big difference is that one power is delegated, and the other, not.

        1. Brett Bellmore: (1) The federal government was set up as a government of limited, enumerated powers. But state governments were not — they have plenary powers, subject only to the Bill of Rights and similar constraints. Abood and Janus both involve actions of state or local governments, not of the federal government.

          (2) In any event, all governments have broad powers to set forth rules for their own employees. There’s no express power, for instance, allowing the federal government to require certain employees to wear uniforms, or not to moonlight, or the like — but government as employers necessarily have broad powers to prescribe employee behavior as a condition of employment (again, subject only to the Bill of Rights and similar constraints). So even if these were federal employee cases, I don’t think the enumerated powers argument would be a problem; but I stress again that these are state cases, where the enumerated powers doctrine doesn’t apply.

          1. But I thought the topic was the federal government, otherwise you would have made “constitution” plural, no?

            1. No. The topic was about particular supreme court cases that have nothing to do with federal power, and are instead focused on the first amendment (of the singular federal Constitution). The relevant question is whether a particular type of law falls into the first amendment exception to the general rule of plenary state power. More generally, the assumption the Constitution makes of plenary state power (subject to exceptions in the BOR) is inconsistent with the idea of a “libertarian Constitution” (at least as conceived by many libertarians).

        2. I’m always puzzled by arguments that say the government can do X, but not Y, when the end result of X and Y is identical.

          1. It’s really quite simple. The Constitution doesn’t typically say that the (federal) government can achieve a given end in any way it pleases. Rather, it is given a specific power it may exercise.

            The argument is based on actually reading the words of the Constitution, and applying them.

          2. Bernard, I have made this point before, and want to stick to it. There are some government functions?taxation, punishment of crime, for instance?which amount to direct exercise of sovereign power. You can recognize those kinds of functions because they are the ones which treat citizens specifically as subjects. (So buying paper clips for government offices, for another instance, is not one of those, not even if it ends up being purchase of aircraft carriers for the common defense.)

            I suggest that direct exercises of sovereign power ought always be performed directly by government, and not contracted. There is a difference between direct accountability, and accountability at one remove (or more than one remove). Government exercise of sovereign power over subjects is best managed by direct accountability.

    2. Why do you think “that cannot be the case”? It’s pretty much a direct comparison to the individual mandate from the Patient Protection and Affordable Care Act. Since the government can constitutionally tax you for not purchasing health care, why can’t they write a bill that taxes you for not donating to Planned Parenthood?

      1. Well, for starters, the individual mandate involves you paying money to the government, which is what you do when the government taxes you. The government then uses that money to fund whatever activities the government wants to fund. It does not require you to directly pay money to Planned Parenthood so that it can lobby for government funding of abortions — not only would that be compelling you to fund speech you don’t support, but it would also seem to be inconsistent with the majority holding that the government can’t compel you to purchase insurance in the private market.

  4. Question/comment, oh sage! I’m seeing references to governments’ “rights” to compel… I’ve always read the words powers and duties in respect to government, our golem. And I’ve always felt that people – not agencies – have “rights.” Agencies have “rights” in the same sense/one the same plane as human (inalienable) rights? [Rationale: Governments are entities like partnerships, businesses, etc – constructs of human actions, entities that can be dissolved.]

    1. To paraphrase:

      Government is people, my friend.

      1. Therefore, by logical analysis, government is soylent green.

        (Are we having fun yet, Sarcastro?)

      2. In one formulation, “Government is what we do together.” In the other, “Government is what we do to each other.”

        I tend to think the latter formulation more accurate.

        1. That would explain the disaffection toward the great American mainstream..

  5. Suggesting that the US Constitution should be viewed from a libertarian slant is the mark of a poor education in my opinion. By it’s very wording, the document creates and empowers a government that will always coerce, limit, or otherwise infringe on it’s citizens no matter how much the document [supposedly] limits the government. If the US Constitution or others didn’t exist, the people would then truly be free to choose whatever they individually wanted.

    If we can just get libertarians to stop recommending policies that only work in a vacuum, we’d be good to go.

    1. I agree….especially since State’s were presumed to have a generalized police power and were not restricted by the Bill of Rights.Even if one sticks with an Originalist view of the more controversial Constitutional clauses, the federal government still had the power to declare war, tax, borrow money, spend for the general benefit, and devise regulations for trade. What practically limited this in our early history was a healthy distrust of centralized power, an economy that was still local in nature, the desire to maintain slavery, and a preference of local control for most things, Now this does not excuse the current extra-constitutional intrusion into local matters…and how the commerce clause is now viewed as granting federal authority over anything economic….provided it has some actual or imagined substantial affect on a national matter or scheme. So, a strict constructionist view of the Constitution would more jealously limit how the feds would spend and regulate….and thus be able to tax. And I think this is the point of mentioning anything about libertarianism….it’s not a literalism….but a statement on boundaries.

      Now certainly there is a wing that would argue that “natural rights”…implied by the 9A…provided a much greater protection of property from the feds. I’m sympathetic to this, but there does not appear to be good ways to definitively identify such boundaries or even define a process to do so.

      1. State’s were presumed to have a generalized police power and were not restricted by the Bill of Rights.

        This seem like a key point here. A Constitution that grants very broad power to state governments, (or permits them to exercise such powers) can hardly be characterized as libertarian.

        1. The point you seem to miss is that the Federal Constitution doesn’t grant the states powers at all.

          ALL the powers started out as state powers, and some of them got delegated to the federal government.

          1. The federal Constitution (and amendments) could have prohibited or limited state regulation of economic matters, just as it prohibits the abridgement of the freedom of speech. The founders (and authors of the later amendments) chose not to do that. Many libertarians either disagree with this decision, or (incorrectly) believe the Constitution does impose such limits on state power. (See Reason’s coverage of the Texas hair braiding case, Lochner more generally, etc.) But that doesnt change the fact that the Constitution is not a libertarian document, and arguments for results based on the opposite assumption (such as the arguments Eugene refers to) are dubious.

            1. But the 14th amendment uses w/o further qualif’n the word “liberty”, so there’s nothing in it to say it doesn’t limit or prohibit state regul’n of biz. Just seems to depend which judge you get as to whether a particular measure’s a depriv’n of “liberty” as meant therein.

  6. It isn’t that the Constitution is a libertarian constitution. It’s that the Constitution is much more libertarian than constitutional jurisprudence! When the jurisprudence departs from the actual text, (Which is depressingly often.) it’s always in an anti-libertarian direction.

    This is to be expected given that Supreme Court justices are nominated and confirmed by the people who exercise that power, but it’s still wrong.

    1. It’d be hard to imagine the jurisprudence being anything but at most as libertarian, usually less so, than the Constitution itself, just because of the nature of cases brought before it. Someone affected by gov’t sues or appeals, saying this statute doesn’t apply (to me or generally), because the Constitution says whatever. If the gov’t loses, the result is just as libertarian as the Constitution, no more; if the gov’t wins, it’s less so. The only way it could be otherwise is if someone brings to court something on a theory that’s more libertarian than the Constitution, and judges go along with that, citing something extraconstitutional as the basis for the decision. I mean, it can happen, as appears to have been the case w Roe v. Wade (where not even the 9th Amendment was given as the reason), but that’s got to be a rarity.

  7. “It isn’t that the Constitution is a libertarian constitution. It’s that the Constitution is much more libertarian than constitutional jurisprudence!”

    See, this is what happens when people ignore the actual argument advanced. This is just a category error; the Constitution isn’t libertarian just as it isn’t Marxist, because (to use the easy example) neither of those things existed when the Constitution was being ratified.

    The Constitution was primarily concerned with the proper division of powers between the Federal government and the states, and with the powers of the federal government. The framers, who had experience at the state level, clearly did not believe in “libertarianism” which did not exist in the states. Instead, it was solely a balancing act between those who wanted an extremely powerful central government (to replace the AoC) and those who feared it.

    Sure, there are other issues. Dual sovereignty. Civil war amendments. The importance placed on property rights by the people that wrote it (who owned property). But it’s not a libertarian document. …contd….

    1. What is, of course, fascinating is that many of the same people who routinely laud Prof. Volokh for his work on the Second Amendment and for his deep understanding of the First Amendment (especially the history- remember “Freedom of Press”) are so quick to disparage him when he says something they disagree with. Not on actual legal or historical grounds, but because it just … doesn’t agree with what they want to be true.

      1. They can and should have only one loyalty, loki13, and it doesn’t involve Prof. Volokh, no matter how devoted his service to the right-wing cause might be — they’re on a Mission From God.

        But don’t worry — they bark a lot, but they’re not so tough.

        1. No, Arthur, these men are nihilists, there’s nothing to be afraid of.

      2. I didn’t say it was a libertarian document. I said the jurisprudence is even less libertarian than the document itself. Not quite the same thing.

        1. Yes, there is definitely a difference between “the jurisprudence is not as libertarian as the constitution” and “the constitution isn’t libertarian, and the jurisprudence is even less libertarian than that.” I just don’t understand why you’d make the distinction that one thing amounts to less of something that amounts to nothing?

  8. Volokh offers an excellent response! It is certainly true that “the proper interpretation of the Constitution is often not libertarian […] because the Constitution is not primarily a libertarian document.” There are many nuances (including one noted by JoeGoins, “but limitations weren’t really placed on the President…”) which are decidedly non-libertarian but were determined to be necessary and proper for the operation of a practical government. [I recall a judge asking me a very good question: “well, then, how else are you going to do it?”]

    Having said that… while I agree that “there’s no _First Amendment_ problem with compulsory union agency fees,” it is not necessarily true that “stripped of [its] unfounded First Amendment concerns, [Abood] is an easy case.” As stated in the brief, “to be certain, [] compelled subsidies are subject to other constitutional restrictions,” and such restrictions also arise as complications in Janus v. ASFCME. I’ll keep my mouth shut for the moment [pleasing many, I’m sure] in the hope that Volokh’s future responses touch such complications.

  9. Agreed.

    For historical reasons, libertarian views on social policy and domestic relations are traditionally generally classified as “liberal,” while libertarian views on economic policy and work relationships are traditionally generally classified as “conservative.”

    The Constitution no more gives liberals a warrant to impose their views on the public than it gives conservatives. Rather, it establishes the structure of federal government, sets limits on federal to government and established its superiority within those limits, establishes a few central individual rights, and imposing a very small number of direct limitations on States. But when the Constitution does not impose a limit, either making something a federal responsibility making it an individual right, or imposing a direct prohibition, a state can do whatever it wants.

    And like enumerated federal powers, enumerated individual rights are limited. They cannot be read so expansively as to essentially prohibit whatever a judge disagrees with.

    1. Seems to me they can, when broad language like “liberty”, “rights, privileges, or immunities”, and “other rights” are in play. Were the drafters of that language deliberately 2-faced, aiming to placate liberals & conservatives w opposite inferences by the same words? Passing the buck to others, deflecting responsibility from themselves?

      1. As Professor Volokh said above, the answer is that the Framers indeed deflected most issues to the political branches. They didn’t purport to decide everything themselves, and they didn’t intend to have “the least dangerous branch” be the primary decision-maker on all the hot-button political, economic, and social questions. So in that sense they did intend to pass the buck to others.

        And the people they most intended to pass the buck to is us. We are where the buck stops. Through debate, through elections, through the political process, it is our job to address these questions ourselves as best we can. They imposed no “ism” on us, no single all-embracing political philosophy. We have to figure things out as we go along.

        1. What’s the point of giving vague instructions, except to deceive?

      2. Hamilton, at least, viewed the Constitution as an acorn he was planting in order to get an oak tree. He certainly appears to me to have wanted a much more powerful government than most of the other founders.

  10. I admire Prof. Volokh’s professionalism in answering comments.

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