Constitutional Obligations as a Counter to Zero-Sum Thinking

The Constitution is a legal document that structures government and protects rights. Sometimes overlooked, however, is the reality that it is also a statement of values and principles on which the structure of government and the protection of rights is based.

These values and principles are not law — but they can suggest non-legal obligations that the government owes to its citizens or that citizens owe to each other.

Sometimes the obligation is stated explicitly as the foundation for the protection of a right. For example, a few months ago a racist killer influenced by white supremacist ideology and so-called “replacement theory” massacred Black Americans at a super market in Buffalo, N.Y. We know from bitter experience that white supremacy and replacement theory leads to violence and murder. We know this. Yet our constitutional system prohibits government from suppressing such pernicious speech.

The First Amendment generally prevents government from prohibiting speech that may influence individuals to commit crimes — even horrible crimes like the massacre in Buffalo. As the Supreme Court made clear in the seminal case of Brandenburg v. Ohio, this kind of speech, characterized as incitement, can only be prohibited if it will lead to imminent violence or unlawful conduct. This is a bedrock First Amendment rule today. The speech that warped the mind of the murderer in Buffalo cannot satisfy this incitement test because it did not immediately result in violence.

It is important to understand the reasoning justifying this meaning of incitement which protects such evil speech. The principle underlying the Brandenburg rule imposes an implicit obligation on the State and the people, a principle that requires us to counter evil counsel as loudly and forcefully as we can.

As Justices Holmes and Brandeis wrote in dissenting opinions that eventually led to the Brandenburg decision, dangerous speech could only by suppressed by government if the violence and other unlawful conduct it is inciting is imminent. If there is time to counter and refute evil counsel before it leads to harm, the constitutionally appropriate remedy for bad speech is good speech — not the prohibition of speech.

Thus, the foundation of this key free speech doctrine is grounded in the expectation that good people will not remain silent when they are confronted with evil speech.

It relies on the willingness of good people to speak up when there is time to do so and counter evil counsel to reduce the likelihood that bad speech will lead to unlawful acts or violence.

If good people are silent, evil speech cannot be effectively refuted.

Our free speech doctrine in a very real sense imposes a constitutional obligation on good people to speak up.

And that obligation falls with special weight on those of us who can speak the loudest and can be heard by the largest audiences. Government officials, among others, are in this category of speakers. Their official positions give them a microphone which extends the reach of their voice. The First Amendment doctrine about incitement prevents officials from silencing evil ideas — but the reasoning underlying that doctrine obliges them to speak up loudly against evil speech.

Other private speakers with loud voices — such as media and the clergy — are similarly obligated. And the average citizen’s voice, joining with others, needs to be heard as well.

Consider another principle underlying accepted constitutional law. The Fifth Amendment (made applicable to the states by the Fourteenth Amendment) explicitly requires the government to pay just compensation to the owner when it takes private property. But what justifies this compensatory requirement? The Supreme Court in Armstrong v. United States explained that the purpose of this provision was “to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole.”

This principle extends beyond compensating property owners for takings. It supports an implicit obligation to compensate — or at least mitigate — the costs incurred when the state furthers the public good in a way that disproportionately burdens individuals or a small group. Consider some examples. Government often accommodates religious exercise either as a result of constitutional mandates or as a discretionary political act. While the protection of religious exercise is particularly valuable to the individuals whose religious practices are being burdened, a strong argument recognizes that religious liberty is a public good. Our society in general benefits in important ways from our commitment to religious freedom.

Sometimes, however, accommodating religion imposes costs on identifiable third parties. In Burwell v. Hobby Lobby, a major issue involved the cost to women employees who would lose valuable insurance coverage for medical contraceptives if employers were exempt on religious grounds from the regulations requiring them to provide such health insurance coverage to their employees. If, as I suggest, religious liberty is a public good, a theory of constitutional obligation would support the government (the public as a whole) assuming the cost of such coverage for the women employees denied insurance coverage to protect the religious liberty of their employers.

Or consider the baker who, for religious reasons, will not create a cake to celebrate the wedding of a same-sex couple. If we exempt the baker from the requirements of anti-discrimination laws in the name of religious freedom, does the state have an obligation to alleviate the cost to the victims of the baker’s discrimination? In this situation, monetary or material compensation may not be feasible. But there may be other ways for the government to mitigate the burden same-sex couples will experience. Perhaps the government could make available through web sites a list of the wedding cake bakers in the area who would welcome the patronage of same-sex couples.

A final example involves state laws banning abortion, which require pregnant women to carry a fetus to term and birth. Here, because the woman wants to terminate her pregnancy, she is not a private beneficiary of the state law. The state believes by prohibiting abortion it is furthering the public good. Obviously, however, this law imposes very substantial burdens on women, including physical, psychological, and economic costs. The state and public will not be able to come close to sharing all of these costs. But it can do some things. For example, in the case of a fetus who will be born with severely debilitating ailments, the state could take on the responsibility of providing top quality medical care, assistance, and support for these children after birth.

Constitutional obligations, while not law, are derived from constitutional principles. They have many virtues, not the least of which is that they move us — perhaps only slightly but to some extent — away from constitutional controversies being entirely a zero-sum game.

[Cross-posted from The Hill]