Happy Bill of Rights Day! For what it's worth, the Third Amendment is still in pretty good shape—at least, the last soldier to crash on my sofa was a friend sleeping off a post-divorce binge. It's a mixed bag for the other nine amendments in the Bill of Rights, though, with protections for some important freedoms facing serious incursions. What's most disturbing is that the threat comes not just from the usual suspects in government, but from the public at large.
On the plus side, criminal justice reform is getting a long overdue look. Some tentative and limited reforms for asset forfeiture, cash bail, and mandatory minimums suggest that the Fifth and Eighth Amendments still have life in them.
But some top-tier liberties are in real danger.
Fourth Amendment-wise, this week brought us a much-anticipated Justice Department Inspector General's report on the FBI investigation of the Trump campaign's alleged contacts with Russia. While Inspector General Michael Horowitz found no evidence that political bias motivated the decision to open the investigation, the report "identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation." This is how the feds conducted themselves in a high-profile investigation. They play at least as fast and loose with privacy protections for us commoners, according to a 2018 Foreign Intelligence Surveillance Court ruling that slapped at repeated FBI misuse of snooping tools.
Self-defense rights are more unpopular than ever with much of America's political class. Politicians may not be able to define "assault weapon," but many wannabe Democratic presidential candidates propose to ban the things—and even to confiscate them. While most Republicans reject such grabbiness, too many of them endorse the president's unilateral restriction on "bump stocks" that let people rapidly fire some semiautomatic rifles. They're also prone, along with their cross-aisle co-conspirators, to endorsing "red flag" laws that would let government officials temporarily (supposedly) suspend individual Americans' Second Amendment rights with minimal due process muss and fuss.
Free speech gets similar disrespect from lawmakers. Last week four socially conservative members of Congress tried to revive old-fashioned sex panic, demanding that Attorney General William Barr "declare the prosecution of obscene pornography a criminal justice priority." On an even more dangerous note, Democrats continue their efforts to trim First Amendment protections for core political speech. Their proposed constitutional amendment would not only potentially choke off the speech rights of people banded together as incorporated entities, it would also empower government to regulate the raising and spending of money to influence elections—an outright gift to incumbent politicians with easy access to free media coverage.
Legislators from both major parties want to strip away protections for online speech. And President Trump insists that "free speech is not when you see something good and then you purposely write bad, to me that's very dangerous speech."
But these are government officials. We assume that they're nasty creatures who will always push against restraints on exercising the power that attracted them to their chosen careers. Against their worst efforts the public can supposedly count on the admittedly uncertain, but often helpful, protections of the Bill of Rights to protect their rights from government violation.
What happens, though, when the public itself becomes iffy about personal freedom?
It's now trendy, especially on the progressive left, to question the value of free speech protections. These skeptics argue that relatively unfettered discussion is a tool of the powerful and of the un-lefty. A version of the viewpoint is winning favor among mainstream types like former Time editor Richard Stengel, who went from heading the National Constitution Center to favoring laws against very loosely defined "hate speech."
That contempt for open discussion is reflected among the public at large. An October 2019 survey by the Campaign for Free Speech found that 51 percent of Americans think "the First Amendment goes too far in allowing hate speech in modern America and should be updated to reflect the cultural norms of today." An even larger 57 percent think "the government should be able to take action against newspapers and TV stations that publish content that is biased, inflammatory, or false."
Unfortunately, that hint of grassroots authoritarianism jibes with the 56 percent of Americans who supported domestic surveillance in the name of counter-terrorism after Edward Snowden revealed that the U.S. government was spying on private communications. At the time, a solid 59 percent of Democrats and Republicans alike wanted to prosecute the whistleblower for giving us a heads-up. Numbers shifted a bit in a more civil libertarian direction later, but most people's initial reaction was to give the snoops a free hand.
Public support for self-defense rights is also eroding after a long period in which they seemed relatively safe and gained a big Supreme Court win in Heller. The ranks of Americans willing to compromise Second Amendment protections in the name of stricter gun laws is growing and now stands at 60 percent, up from 57 percent last year and 52 percent in 2017. Sixty-nine percent of respondents want to ban "assault-style weapons" and 71 percent favor giving the same treatment to ammunition magazines that hold more than 10 rounds.
Why are Americans seemingly becoming more willing to let the government intrude into people's lives and penalize people for exercising their rights?
Interestingly, the Campaign for Free Speech sees political polarization at work. "While many who identify as conservative may dislike the reporting of CNN and would likely favor sanctions for 'fake news,' many progressives or liberals may feel the same way towards Fox News," the group says. That is, while Americans may favor punishing "biased" media outlets, they see bias in media operations on the other side of the political divide and want to put the screws to their opponents.
The weaponized nature of the assault on speech rights becomes clearer when left-wing academics complain that "free speech law entrenches a social view at war with key progressive objectives," and when social conservatives campaign against pornography, at least in part, as an exercise in "smashing the sacred cow of cultural libertarianism."
Similar factional concerns may be at play in views of Fourth Amendment issues, too. Americans generally favored domestic surveillance after Snowden's revelations, but after it became clear that the FBI—a major player in monitoring communications—was investigating Donald Trump's 2016 presidential campaign, Pew Research reported, "the share of Republicans and Republican-leaning independents with a positive view of the bureau has fallen 16 percentage points," from 65 percent to 49 percent. Democrats' views of the FBI remained overwhelmingly positive, at 77 percent.
And attitudes toward Second Amendment rights have long divided along partisan lines. With firearm ownership established as a right-of-center preference (44 percent of Republicans report owning guns, compared to 20 percent of Democrats), 86 percent of "Democrats and Democratic-leaning independents favor stricter gun laws, compared with" 31 percent of their Republican and Republican-leaning counterparts, according to Pew.
There's a good chance that Americans are turning against their own liberty because they're deeply concerned that it might be enjoyed by people who disagree with them. They'd rather tighten the restraints on everybody then see their political enemies exercise universal rights.
That doesn't bode well for constitutional rights protections, since words on paper can't stand alone. The Bill of Rights can withstand a hostile political class if it's supported by a culture that genuinely wants to be shielded from the depredations of government officials. If, instead, people come to see the Bill of Rights as a barrier to their efforts to harm their opponents, its component amendments will be reinterpreted or overturned so that they don't get in the way of political warriors sticking it to each other.
So, happy Bill of Rights Day! Celebrate while it still means something.