‘Constitutional fundamentalism’ restricts our ability to adapt to changing times

In Cult of the Constitution, Mary Anne Franks dis­cuss­es “Constitutional fun­da­men­tal­ism” a con­di­tion she describes as a strict adher­ence to the text of the Constitution with­out regard to the chang­ing soci­etal norms which may – and do – affect the appli­ca­tion of the document.

Given the chang­ing con­di­tions in American soci­ety at present, it is per­haps appro­pri­ate to con­sid­er some alter­ations in our laws and sep­a­rate them – with the utmost cau­tion and con­sid­er­a­tion – from the strict inter­pre­ta­tions of the Constitution.

The First Amendment deserves some pro­found atten­tion.  The First Amendment is very explic­it about speech: “Congress shall make no law….abridging the free­dom of speech…or the right of the peo­ple peace­ably [empha­sis added] to assem­ble… ”  Pretty emphatic. 

However, total free­dom of speech and assem­bly have been lim­it­ed numer­ous times in the United States, most notably dur­ing the times when sedi­tion laws were enact­ed at the begin­ning of the 19^th cen­tu­ry and dur­ing World War I.  In 1919 the Supreme Court opin­ion in Schenck v. United States was that free speech in oppo­si­tion to the war was not pro­tect­ed. It was in this deci­sion that Justice Holmes pro­claimed that shout­ing fire in a crowd­ed the­ater was not pro­tect­ed free speech. 

In 1969 the deci­sion in Brandenburg v. Ohio lim­it­ed the scope of banned speech to that which would be direct­ed to and like­ly to incite immi­nent law­less action.  The dis­tinc­tions of “peace­ably” and “incite­ment” are espe­cial­ly impor­tant because they go to the very heart of past dec­la­ra­tions which have placed lim­its on both.

Even dur­ing the American Civil War, President Lincoln sus­pend­ed the writ of habeas cor­pus, and those who spoke out against the war were sub­ject to arrest.

Following World War II the German penal code pro­hib­it­ed pub­licly deny­ing the Holocaust, dis­sem­i­nat­ing Nazi pro­pa­gan­da both off and online, includ­ing images of swastikas, wear­ing an SS uni­form, or mak­ing state­ments in sup­port of Hitler.  Admittedly this is all relat­ed to Germany, unin­hib­it­ed by our Constitution stric­tures, but the German repub­lic under­stood the extent to which hate speech, fos­tered in the decade before the start of the war, can fes­ter and foment the most hor­ren­dous actions.

So, maybe it’s time for America to con­sid­er the pos­si­bil­i­ty of enact­ing laws that pro­hib­it the for­ma­tion of groups that con­sis­tent­ly espouse vio­lence against those who dis­agree with them.  Any such pro­hi­bi­tions would undoubt­ed­ly be chal­lenged in the Supreme Court as exer­cis­es in abridg­ing free speech and assem­bly, but isn’t there some bal­ance to be achieved between this unfet­tered speech and the safe­ty and wel­fare of the aver­age indi­vid­ual?  Must Jews, Muslims, Asians, LGBTQ+, and numer­ous oth­er minori­ties be con­tin­u­ous­ly fear­ful because of the unre­strained hate speech so preva­lent today and the mul­ti­ply­ing hate groups tar­get­ing them?

There has been a trou­bling rise in hate groups in recent years, and they seem to be get­ting more vio­lent, so fol­low­ing Germany’s lead could poten­tial­ly allow this coun­try to cur­tail events sim­i­lar to those which result­ed in the destruc­tion of that coun­try and, to be blunt, the events of January 6, 2021.

And all this leads back to a dis­cus­sion about “Constitutional fun­da­men­tal­ism” because if the courts of this coun­try adhere to the strict inter­pre­ta­tion of that por­tion of the First Amendment we may nev­er have a method of restrain­ing the hate and vio­lence that is so read­i­ly avail­able, espe­cial­ly now through its wide­spread dis­sem­i­na­tion on the internet.

The process will undoubt­ed­ly be described as a “slip­pery slope,” and so it may be, which is why extreme dili­gence must be exer­cised and thought­ful dis­course applied to it.  But even a ski­er, trav­el­ing at break­neck speed down a snowy slope has the oppor­tu­ni­ty to stop his down­hill race or to change course.  So too are there var­i­ous and numer­ous options avail­able to assure that any restric­tions do not become ham­mers with which to pum­mel groups that pose no immi­nent threat to the peace and wel­fare of cit­i­zens.  They can­not become a cud­gel to be used against dis­sent strict­ly for the sake of silenc­ing oppo­si­tion views.

But Constitutional fun­da­men­tal­ism does not allow us the lux­u­ry of apply­ing the high-mind­ed propo­si­tions of the founders to the changed cir­cum­stances of today — and our founders cer­tain­ly were not pos­ses­sive of the pre­science nec­es­sary to pre­dict the cir­cum­stances fac­ing this coun­try today.

The point of all this is that this coun­try needs some method of pro­hibit­ing the for­ma­tion of, or con­tin­u­a­tion of, clear­ly defined hate groups and their abil­i­ty to use the dis­sem­i­na­tion of mes­sages that pro­mote hate and vio­lence to achieve their aims.

Otherwise, we may find our­selves on the path that destroyed a coun­try and mil­lions of people.