“What ‘Liberties’ Does the Constitution Protect?”—Prof. Hadley Arkes in Library of Law and Liberty

Writing in the Library of Law and Liberty, Prof. Hadley Arkes comments on the Supreme Court case of Reed v. Town of Gilbert, AZ. In “What ‘Liberties’ Does the Constitution Protect?,” he discusses the deep principles underlying the free speech clause and their relevancy to the case. Some excerpts:

“The liberty that a constitution would seek to protect is a ‘rightful’ liberty, a liberty directed to things that are innocent, legitimate, not wrongful. And so when we are asked about a Constitution that protects liberty we might as aptly say that our concern is really with a Constitution that seeks to encourage and protect the rightful or ‘justified’ uses of liberty. A Constitution may do that by helping to bar the choices that are wrongful, and encouraging the things that are rightful. To invoke a familiar word, we might as aptly say that the end of government is to secure, as much as practicable, the conditions of ‘justice.’”

“This is what we used to call the protection of ‘natural rights’: It was not that we have a right to life everlasting, or a right never to have our property taken in the form of taxation. And any law, forbidding or commanding certain acts, will be restricting our liberty in some way. My liberty may be impeded when the Fire Department, blocking off a street, forecloses the shortest way for me to walk home. But that restriction may be patently justified by the concern to protect lives, including my own. That is quite different from a ‘rule,’ imposed by local convention, and barring people of a certain color or ethnic character from stepping foot in the ‘wrong’ neighborhoods.”

“As James Wilson had famously said, the purpose of this new Constitution was not to invent new rights but to secure and enlarge the rights we already had by nature. The protection of natural rights was the very purpose, the defining end of the Constitution…But at the same time, a government committed to the protection of natural rights is a government that bears the burden of justification for its acts. And once again it is the connection to the moral ground of the law that explains how those burdens of justification should be assigned. The explanation begins with the nature of that moral agent who alone has a claim to all dimensions of his ‘liberty.’”

“In the classic understanding, we do a portentous thing when we impose laws on other people, and that move will always call for a justification, an explanation of what makes it just or rightful for others as well as ourselves. Those creatures we call “moral agents” have a presumptive claim to all dimensions of their freedom, and the burden lies with the law in supplying a moral justification for overriding that freedom.”

“By the logic of natural rights, the law should bear the burden of justification when it would displace the freedom of a person to pursue his own ends, or when it would it impair his freedom by taking a portion of his property, or his material means, in taxes. But in the axial ordering of things, life does come first. And so it should be quite as clear to our libertarian friends that, if the law bears a burden of justification when it takes a portion of a man’s income, it should bear an even deeper burden when it removes a whole class of human beings from the protections cast over human life.”

“As we look more closely, then—as we get drawn into the rights that are protected under the Constitution—we would be drawn to those deeper principles underlying the text. That would bring us back to what Alexander Hamilton called those ‘first principles’ on which ‘all subsequent reasonings must depend.’ The remedies that would strike us these days as most novel, for the most vexing issues in our law, may simply come to us in the style of Plato’s Meno: that we simply unlock the meaning that has been in the Constitution all along, and we learn, perhaps for the first time, what was always there to be learned.”

Read the whole piece here.