Free Speech Fundamentals: Bills of Rights

Welcome, Milo fans!

One of you over on the Facebook thread had a good question about my previous post: "Lots of people died for freedom of speech before USA existed. Then [an]...argumentum ad Adam and Eve..?" I agree, I needed to give you more links between Milton and the First Amendment. That was the original plan for the post, but then Milton took over, and as often happens when you actually read the primary sources, I found myself in places I had not intended to go but discovered (much to my delight) were far more compelling than the argument I had thought I wanted to make. (Seriously, the tension between freedom and compulsory virtue goes back to our first parents and their relationship with God? How's that for the importance of culture?!)

This happens--a lot--when you take the time to settle in with the texts, which is what makes being an historian so much fun, even better than being in a Dan Brown thriller, because the clues you are following are really out there, but there is no mastermind behind them, only your own ability to piece them together and make sense of them based on your own inevitably imperfect knowledge about the bigger picture that they supposedly fit into but which itself may change based on new evidence. This is very much where I am now, needing to piece together the bits of the story about freedom of speech that I know--basically, it goes from John Milton to J.S. Mill--with the hints that I have from the scholarship about where to look further, specifically in the history of the relations between the English and the Dutch.

U.S Bill of Rights 1789
There are a few highlights which I already knew to be important, a few more that I learned from Wikipedia as I was doing the linknotes on Milton: something something English Bill of Rights of 1689 something something the Virginia Declaration of Rights of 1776 something something the Bill of Rights appended to the U.S. Constitution in 1789 something something the French Declaration of the Rights of Man and of the Citizen of 1789. (The Declaration of Independence of 1776 does not, in fact, mention freedom of speech.) If I were a lawyer or legal historian, I would at this point most likely gesture towards the tradition of precedent underlying the development of the English common law on which the legal culture of the United States is ultimately based. As Tocqueville brilliantly shows, this culture is one of the things that makes the United States radically different from France: in the English tradition, lawyers and judges argue from precedent, while in the French tradition they argue from principle. In Tocqueville's words: "The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produces precedents, the latter reasons." The takeaway for our purposes is that the authors of the American Bill of Rights knew the Virginia Declaration of Rights, whose authors knew the English Bill of Rights of 1689 (probably by heart), while the French most certainly were paying attention to what the Americans did, but thought about things in rather different terms.

My colleagues in seventeenth-century English history can tell you more about how the English came up with their Bill. (Here's a good place to start.) Abridged version: they were reading Milton as well as lots of stuff published by the Dutch, including John Locke. So, basically, yes, it matters what Milton and Locke said, but for the moment let's look at freedom of speech as it was actually invoked in the various Bills and Declarations.

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1689: That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

I have no idea what exactly this means. It is not a general right to freedom of speech, but rather a freedom for Parliament to hold debates without being questioned outside of Parliament. It is not at all what Milton was talking about in his Letter to Parliament "for the Liberty of Unlicensed Printing" (1644). It says nothing about freedom of the press or freedom of religion. In fact, at the time, Parliament was much more concerned about preventing the king from limiting their practice of religion: the whole reason they were in a position to present the king--William the Stadtholder, who had married the previous king's daughter Mary--with a Bill of Rights was that they had managed to oust Mary's father James, whom they disliked because he was set on making England Catholic again (or so they feared), and they had brought in William, a Dutch Protestant, in his stead. This was the context in which Locke wrote his famous Letter "on Toleration" (1689, originally published in Latin). He had been in exile in Amsterdam since 1683 hiding from the Catholics (it's complicated), and he wanted to make sure if and when he came back home he would be able to worship as he felt right, not as some magistrate (a.k.a. king) told him to. Which is why, among the groups that Locke discusses who should not be tolerated in their manner of worship, he includes Muslims ("It is ridiculous for any one to profess himself to be a Mahometan only in his religion, but in everything else a faithful subject to a Christian magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople, who himself is entirely obedient to the Ottoman Emperor and frames the feigned oracles of that religion according to his pleasure.") and atheists ("Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration.") Whether Protestant Parliament should tolerate Catholics was still an open question. (Catholics were not allowed to hold seats in Parliament until 1829.)

A Declaration of Rights made by the Representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them and their posterity, as the basis and foundation of Government, 1776. Article 12: That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.

As a medievalist, my grip on American history is somewhat shaky (albeit, I would venture, somewhat less so than that of many of my modernist colleagues on medieval history; seriously, nobody in medieval Europe believed the world was flat, just ask Dante). Here I am almost wholly dependent on what I have learned reading David Hackett Fischer's Albion's Seed: Four British Folkways in America. As Fischer shows, the Virginians had a distinct understanding of freedom, different from that of the three other major British colonies. While the Puritans of New England saw freedom in terms of community, the Quakers of the Midlands in terms of reciprocity, and the Borders of Great Appalachia in terms of absence of interference from the government, the Anglican gentry of Virginia saw freedom in terms of hierarchy: "the power to rule, and not to be overruled by others." As Edmund Burke put it (cited by Fischer), explaining how the Virginians and Carolinians could hold slaves while championing liberty: "Freedom is to them not only an enjoyment, but a kind of rank and privilege. Not seeing there that freedom, as in countries where it is a common blessing and as broad and general as the air, may be united with much abject toil, with great misery, with all the exterior of servitude, liberty looks amongst them like something that is more noble and liberal." That is, among the Virginians, it was inconceivable that someone could be free and poor; to be free meant to be noble, at the top of the hierarchy. Accordingly, my guess is that, in this Article, what the Virginians mean by "liberty" is not quite what the Puritans (now Progressives), Quakers (the source of most Americans' sense of what it means to be tolerant--Quakers hate fighting), or Borderers (now Rednecks) meant by "liberty," nor, therefore, "freedom of the press." But I would need to read more Fischer to be sure. What the Article itself seems to be most concerned about is protecting those with liberty from those that would try to rule over them.

Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution, 1789. Amendment I: 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. 

This is the ideal that we all know, or think we know, on which our country was founded. But what does it mean? Well, what I learn from the Wikipedia entry (seriously, folks, it's the greatest open source of information since Diderot and d'Alembert invented the Encyclopédie, although the Encyclopedia Britannica was for a long time the greater; none, of course, is without bias, but that's what makes them interesting) is that the Bill of Rights "had little judicial impact for the first 150 years of its existence; in the words of Gordon S. Wood, 'After ratification, most Americans promptly forgot about the first ten amendments to the Constitution.' The Court made no important decisions protecting free speech rights, for example, until 1931." As my own dean of College has shown, arguments about what kind of freedom professors employed by the university should have to express opinions concerning "controverted questions of public" go back a little further, to the last decades of the nineteenth century. It was at this time that American universities like the newly (re)founded University of Chicago adopted the ideal which the UofC at least professes to this day: that universities should be places of inquiry free from the constraints of contemporary political, theological, or monetary pressures, with the corollary, as President William Harper put it, that the professors employed by the university should not abuse this privilege through partisanship. In Harper's words: "The university is no place for partisanship. From the teacher's desk should emanate the discussion of principles, the judicial statements of arguments from various points of view, and not the one-sided representations of partisan character." This is clearly a rather different idea of freedom from that called for in the First Amendment, although we tend to conflate the two in contemporary discussions. 

Perhaps the most interesting thing that I know about the Bill of Rights itself comes from Russell Shorto's The Island at the Center of the World, a history of the Dutch colony of New Amsterdam and its importance for American history. According to Shorto, it was the New York delegates to the Constitutional Convention of 1787 that were among the most insistent on appending "a bill of specific individual rights" to a Constitution which they feared would give the federal government too much power. They were inspired, argues Shorto, by the Charter that New York City had been granted in 1686 by King James II, itself modeled on the Articles of Capitulation of 1664 by which New Amsterdam had surrendered to James, then Duke of York. (This, for those keeping score, was the same James who was run out of England by Parliament in the Glorious Revolution of 1688 that brought William and Mary to the throne.) As Shorto puts it: "The end result of the a remarkable document. Packaged into it--and extended later by the New York City Charter--was a guarantee of rights unparalleled by any English colony." Most notably for our purposes, according to article 8: "The Dutch here shall enjoy the liberty of their consciences in Divine Worship and church discipline." The soon-to-be Catholic James was more willing to allow the people of his new city liberty of worship than, it seems, the English were latterly willing to allow him.

Déclaration des Droits de l'Homme et du Citoyen, 1789. Article 11: La libre communication des pensées et des opinions est un des droits les plus précieux de l'Homme: tout Citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l'abus de cette liberté dans les cas déterminés par la Loi. 

When I am teaching the History of European Civilization, I tend to talk about this Déclaration in terms of the readings that we have done from Rousseau's The Social Contract (1762), which the authors of the Déclaration most certainly read. Abridged version: The huge problem in The Social Contract is the idea of the general will, which somehow should govern the state but which cannot, according to Rousseau, be determined by any of the normal mechanisms of politics. It emerges, as it were, from the whole, but typically only some are able to discern it, making it simultaneously populist and elitist as an expression of the polity.

Likewise lurking behind all of the articles in the Déclaration is the fondness, as Tocqueville discerned, of the French for thinking in abstract principles rather than, like the English, more mundane precedents. For example, the U.S. Bill of Rights gets immediately down to business: "Congress shall make no law..." The first article of the Déclaration is much more lofty: "Men are born and remain free and equal in rights. Social distinctions may be based only on consideration of the common good." Immediately, we are in a totally different world, concerned not with the limitations of the lawmakers, but with the essential nature of man. There is law, but it comes not from mere human deliberation. Rather, according to article 6: "The Law is the expression of the general will. All citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes..." Remember what I said above about the concept of the general will. What does it mean to say that "all citizens" may take part in the making of Law both "personally or through their representatives"? Does that mean one person might be able to make the Law without going through the representative bodies? How, exactly, would that work?

Now notice the language in article 11. On the one hand, an opening statement of abstract principle: "The free communication of ideas and of opinions is one of the most precious rights of man." Followed, on the other, by what should strike Anglophone ears as an extraordinary limitation of this same right: "Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law." Now, if like me, you tend to think in English, what you will likely read in this last clause is something like precedents--that's what "cases determined by Law" are, right? So, no problem, any restrictions on the right to "the free communication of ideas and opinions" will be determined on a case by case basis. Except this is France, so they won't. They will be determined, as Tocqueville showed, by principle expressed abstractly, which principles may be adjudicated by judges without reference to any precedents whatsoever. Remember also what we just said about how the French think about Law: "The Law is the expression of the general will." Which is determined how exactly? From the perspective of the English-speaking peoples, to coin a phrase: "Nobody knows, it's a mystery."

And you thought Robert Langdon got to have all the fun.

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