An interesting and horrifying thing happened this Wednesday. The United States Supreme Court modified key portions of the First Amendment to the Constitution, and few citizens took notice. Admittedly, those portions include such minor and ambiguous clauses as “Congress shall make no law abridging the freedom of speech” and “Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” According to the Court, Congress may indeed abridge these freedoms, even in the context that the authors of the Constitution specifically had in mind when the Amendment was passed: namely, politics. Campaign funding is just too messy; its appearances too sordid.
Justice Clarence Thomas noted in his dissent, with simple but devastating irony, that important aspects of free speech are “cast aside in the purported service of preventing ‘corruption,’ or the mere ‘appearance of corruption.'” This leaves the marketplace of ideas fully open only to “defamers, New York Times Co. v. Sullivan, (1964); nude dancers, Barnes v. Glen Theatre, Inc., (1991); pornographers, Ashcroft v. Free Speech Coalition, (2002); flag burners, United States v. Eichman, (1990); and cross burners, Virginia v. Black, (2003).”
Lest readers think this yet another polemic against the lawless Court, I will acknowledge that both Congress and the President abetted the passage of the bill in question, which goes by the dreary euphemism “campaign finance reform.” In short, officers of all three branches of our Federal Republic violated oaths taken before God to uphold our Constitution, or at least acted with inexcusable irresponsibility against the spirit of those oaths. These officers will suffer no penalty for this action: those vulnerable to it will not be impeached; those subject to it will not be cast out of office in the next election (at least not for this reason). Nothing much will happen.
Justice Thomas goes on, adopting now the prophetic posture:
It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as ‘circumventing’ the law’s prohibition. Hence, speech regulation will again expand to cover new forms of ‘circumvention,’ only to spur supposed circumvention of the new regulations, and so forth.
It is an unhappy thing to reflect on how indifferent Americans are to the creeping despotism that confronts them. Some may admonish me that I am too intemperate about these Byzantine accretions against our liberties. But I am with Chesterton, who advised, “The wisest thing in the world is to cry out before you are hurt.” This because, “It is no good to cry out after you are hurt; especially after you are mortally hurt.” He continued, “Sound historians know that most tyrannies have been possible because men moved too late. It is often essential to resist a tyranny before it exists. It is no answer to say, with a distant optimism, that the scheme is only in the air. A blow from a hatchet can only be parried while it is in the air.”
And call me crazy but I maintain that legislation so brazenly in violation of the clear intent of the Constitution is grounds for the impeachment of a judge or executive, and the censure and democratic removal of a legislator. Were this a healthy republic of men jealous of their liberty, these would be our tools to rebuke that creeping despotism which is peculiar to democracies, and which the great French diagnostician of politics Alexis de Tocqueville described with astonishing prescience:
It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.
The justification for this law’s passage by the Legislature, and acceptance by Executive and Judiciary is so thin, and the outcry against it so muted and mild, that one is inclined to conclude that Tocqueville’s nightmare is becoming our reality.