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.
