Bill of Rights being trumped by the 14th Am
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Fri Dec 22 17:08:59 PST 2000
"Volokh, Eugene" wrote:
> I much appreciate Michael's candor and forthrightness in
> discussing the scope of his proposals. As he points out, in his
> vision, neither the 1st Am, 4th Am, 5th Am, nor the 6th Am "clearly"
> "fail to survive the Civil War and the 14th Am untouched" -- and
> touched may well mean reduced in scope compared to what we otherwise
> understand them to be, depending on case-by-case "balanc[ing]" that
> turns on the judge's view of "the practical real world consequences"
> to "the 14th Am's core values."
> Just to make it even clearer what the implications of this
> might be, let me ask the following.
> Let's say that the federal government is investigating someone
> who they believe is spreading racist propaganda; they would like to
> try him for spreading such propaganda, because they believe that this
> sort of speech does grave harm to 14th Am core values.
> The FBI plan on investigating this crime by searching the
> person's house without probable cause and without a warrant, because
> in their view the 14th Am makes investigation of racist crimes so
> For the same reason, the U.S. Attorney plans on calling the
> suspect to the stand and on requiring him to testify, on pain of
> contempt, about the circumstances of the crime.
> The U.S. Attorney is aware of the long history of jury
> hostility to antiracist measures. He therefore plans to put the
> suspect on trial without a grand jury indictment, and try him without
> a jury trial.
> The U.S. Attorney is also well aware of the history of
> judicial hostility to antiracist measures. Therefore, if the
> defendant is acquitted (either by the judge, or, if a jury trial is
> indeed found to be required, by the jury), and the acquittal seems to
> flow from such hostility, the U.S. Attorney plans on trying the
> defendant a second time.
> If the justice system continues to let this dangerous criminal
> go free, and in the Attorney General's view this refusal to convict
> flows from judicial hostility to antiracist measures -- or perhaps
> out-and-out judicial racism -- the Attorney General intends to
> imprison the person in any event, to incapacitate him from further
> fomenting of race hatred. Assume there is Congressional authorization
> for this and for all the other procedures I mention above.
> Under Michael's vision of the Reconstructed Bill of Rights,
> what, if anything, is unconstitutional about the planned proceedings?
> I ask this quite sincerely: Given Michael's candid assertions, it
> seems to me that *none* of the above actions would be clearly
> forbidden under his vision (even though they would be clearly
> forbidden under existing law).
Interestingly, the Germans are wrestling with problems not that far
removed from Eugene's hypothetical. The Germans take a dim view of Nazi
propaganda, and accord it no speech protection whatsoever. Nazis and
neo-Nazis have taken advantage of our traditional understanding of the
1st Amendment and have placed their filth on American servers. The
Germans are trying to reach these people, and would like to extradite
one or more -- an effort that will clearly fail.
I am not convinced that the Germans are being entirely wrongheaded in
their general approach. (They may or may not be able to extend their
approach extraterritorially, but that is another matter.) Obviously,
for the Germans, free speech is not the only social good, nor is it a
social good that trumps other social goods. Given their historical
experience, it is difficult to blame or criticize them for their general
My only response to Eugene's hypothetical is that I think that racist
propaganda, alone, is not enough to cause the 14th Amendment to trump
the 1st Amendment.
It seems to me that the basic problem here is the meaning, nature and
function of equality. The word, in and of itself, has no fixed
meaning. Any abstraction will self-destruct quickly enough in the
crucible of real world experience and history. I believe that equality,
understood as a functional concept, has a series of elements or
components that include the cultural, social, economic, political and
the legal. If all of these elements were implicated in a case, I think
it is fair to ask whether some or all of the constitutional protections
Eugene refers to, singly or in combination, would trump the 14th
Amendment "equality" concerns. Again, the answer has to turn on the
relative strength of the concerns at stake.
Let me address one aspect of Eugene's hypothetical. Criminal procedure
is not my forte. However, the O. J. Simpson debacle points to some
useful ideas, I think. Eugene raises the question of jury trials.
Well, I have an answer. Try the offender in a majority non-white
jurisdiction. There are ways to adapt and modify practices with an eye
on the stakes involved. In the O.J. Simpson mess, the civil trial was
had in a predominantly white jurisdiction. That was done deliberately.
Who is to say that one could not deliberately try a racist in a
predominantly African-American jurisdiction? One should not suppose
that the constitutional rights to which Eugene refers are so fixed and
rigid, are so "formalist" that one cannot use them in ways designed to
give some effect to 14th A. values. (Five gets you ten, figuratively
speaking only, that if Ray is stupid enough to indict Clinton, he will
move heaven and earth to try him in a venue other than the District of
Columbia.) I close this comment on this point. There have been far too
many cases in our history where these constitutional rights have been
and continue to be manipulated to the disadvantage of African-Americans,
14th A. or no 14th A. That's the real world, for better or worse. So
there are ways to work things out if there is the will to do so.
> Michael Newsom writes:
> "Volokh, Eugene" wrote:
> > I am intrigued by the suggestion that the 1st Am was
> > cut back by the Civil War and by the 14th Am, but
> To say that the 14th A "cuts back" the 1st A. loads the dice.
> problem is that the values that arguably lie behind each
> amendment have
> to live with each other. If one were to give the 1st Amendment
> force or reading that some on this list have suggested, the 14th
> Amendment would lie in tatters.
> On the matter of speech, as distinct from free association, the
> that I addressed in response to your last email, we have to
> balance the
> values here too. We have no choice, I submit.
> > -- as with all proposals for modifying existing 1st Am
> protection -- I
> > think it would be good to have some more specific details
> > deciding to endorse such a proposal. Exactly what sort of
> speech does
> > the Civil War implicitly authorize the government to restrict?
> > the outcome of the Civil War, for instance, ratify Lincoln's
> > willingness to suppress antiwar speech, as in the Vallandigham
> > thus perhaps suggestion that the Schenck and Debs majorities
> > right after all?)
> You still cannot yell "fire" in a crowded theater, cause a panic
> resulting in death and injury and escape criminal prosecution on
> Amendment grounds. Have we "cut back" the 1st A by this
> holding? I
> don't think so. This is one reason why the metaphor is
> > Likewise, exactly what sort of speech does the 14th Am
> > implicitly authorize the government to restrict? Does it
> > the government to restrict speech that somehow intrudes on
> > religious beliefs (cf. Jackson's dissents in Kunz v. New York
> and in
> > the Jehovah's Witnesses proselytizing cases)? (After all,
> > when one accepts incorporation, the 14th Am was about
> > substantive interests as well as equal protection.) Does it
> > the government to restrict speech that urges the destruction of
> > property, or that praises the killing of police officers, on
> > theory that such speech undermines "life, liberty, or property
> > due process of law"?
> I know this much. If the 14th A is to have any meaning, certain
> of speech that are inextricably tied (whatever that might mean,
> grant) to behavior that clearly runs afoul of the 14th
> Amendment's core
> values and concerns might just have to be restricted. Am I
> prepared to
> extend this notion to your hypotheticals? The answer is that I
> do not
> know. I am satisfied to ask a question: what core values are
> implicated in a particular case, and how should one strike a
> when it turns out that those values might be in conflict. And I
> am also
> satisfied to ask a further question: what are the practical real
> consequences (in light of American experience and history) with
> answer as opposed to another. I do not think that we can do any
> than this. So I guess that my answer to your hypos is "it
> But I am unafraid of either the question, the inquiry, or the
> > Do other amendments -- for instance, the 16th Am --
> > similar, hitherto-unknown effects?
> Probably, but I do not pretend to know what they are.
> > On the flip side, do the 4th, 5th, and 6th Ams also fail to
> > the Civil War and the 14th Am untouched?
> Clearly they so fail.
> > Would the government, for instance, be able to engage in
> > house-to-house searches if its goal is enforcement of the 14th
> Am, or
> > to try people without juries if it thinks that juries might
> > nullify wholesome civil rights laws?
> The answer to all of your hypotheticals depends on the balance,
> stakes, the implications of the answer in light of our history
> experience. Life ain't fair, and balancing ain't beanbag. We
> just have
> to manage, somehow, to do the best we can with the cases that
> come up
> from time to time.
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