Law Talking Guy

The first time that most American children are exposed to the idea of free speech is in the aftermath of a painful experience.  Some other child has uttered a cruel insult and an adult will teach the hurt child the famous rhyme: Sticks and stones may break my bones, but words will never hurt me.  The rhyme has an admirable aim of teaching children an important lesson about free speech: that there is a difference between words and physical violence, and how in a free society, the proper way to respond to hurtful words is with more words, not by lashing out with violence.  While they will later receive further education about free speech and the First Amendment, this rhyme is the foundation upon which our shared understanding of free speech is built.

But this rhyme might well be the most ridiculous lie we ever tell children.  Of course words can hurt.  Some of the deepest, most lasting wounds are inflicted with words.  The apostle James warns of the potentially destructive power of words:

Look at the ships also: though they are so large and are driven by strong winds, they are guided by a very small rudder wherever the will of the pilot directs.  So also the tongue is a small member, yet it boasts of great things.  How great a forest is set ablaze by such a small fire!  James 3:4-5 (ESV).

Do we honestly believe that children are naïve enough to believe that words can never hurt?  Would we ever want a child to believe this?  And yet we continue to use this rhyme to introduce children to the concept of free speech.

Is it any wonder that with such an absurd foundation, many people end up rejecting free speech and calling for the censorship of disfavored speech?  If your core understanding of free speech is that words will never hurt or cause harm, yet you constantly see that words do in fact hurt and cause harm, then it makes sense to either: (1) conclude that protected free speech does not actually include any hurtful or harmful speech; or (2) reject the very idea of free speech as irrational nonsense.

The most obvious example is the movement to criminalize so-called “hate speech,” but this is hardly the only example.  Trump’s insistence that he would “open up our libel laws,” or that the FCC should revoke the licenses of broadcasters who publish “fake” news both reflect a view that speech should only be “free” so long as it does not hurt or cause harm (as Trump sees it).  Ditto for the dozen Democratic Senators who demanded that the FCC investigate whether it was in the “public interest” (as Democrats see it) to allow Sinclair Broadcasting to retain its licenses.

It is now commonplace to hear progressives complain about how the right has “weaponized the First Amendment,” causing the progressive agenda to flounder in court.  As one law professor put it in this article:

Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless.  But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.

This perfectly illustrates the problem with the Sticks-and-Stones understanding of the First Amendment:  if you believe that the underlying rationale of the First Amendment is that speech is harmless and therefore shouldn’t be punished, you will eventually come across speech that you don’t view as harmless, and if this speech is not in fact harmless, then it obviously can’t be protected by the First Amendment.  Invariably, the speech that you view as harmful will just so happen to overlap with the speech that you disagree with.  Your own speech, of course, could never be harmful.

The Sticks-and-Stones model of the First Amendment is, in fact, completely backwards.  The underlying rationale for the First Amendment is not that speech is harmless, it is that speech is one of the most powerful forces known to man.  Speech can change the course of history, it can bring empires crashing down, it can shake the foundations of the world.  The First Amendment exists because we believe that words and ideas are far too powerful to leave under government control.  We may be willing to entrust the government with a monopoly on the legitimate use of violence, but we dare not allow anyone to monopolize the use of words.  If you feel the need to replace the Sticks-and-Stones rhyme with a catchy phrase which will help children understand the foundational importance of free speech, then one is readily available:  the pen is mightier than the sword.

The tyrants of the world have long been aware of this, which is why they invariably try to control speech.  While there are a depressingly large number of people who have been silenced, imprisoned, or killed for daring to speak out against their government, in the long run most attempts at censorship are unsuccessful.  Ultimately, individuals will find a way to express forbidden ideas.  One need look no further than the tragicomedy unfolding in China, where government censors are scouring the internet in a vain attempt to remove all references to that fount of sedition known as Winnie the Pooh.

Indeed, attempts at suppressing speech often backfire, generating greater sympathy and support for the “harmful” ideas that the censors were trying to suppress.  Prior to the Civil War most Southern states attempted to censor and suppress abolitionist speakers and literature on the grounds that it would incite a slave insurrection.  Southern states indicted and issued arrest warrants for abolitionist publishers in the North, and Southern congressmen demanded that the Post Office refuse to distribute abolitionist publications.  Far from harming the abolitionist cause, this censorship caused many Northerners, who otherwise might have remained ambivalent about slavery, to turn against the South because of the threat slavery posed to free speech in the North.  The issue of Southern censorship of abolitionist speech was so controversial that by the time that John C. Frémont ran as the Republican Party’s first presidential nominee in 1856, the party’s campaign slogan was “Free Soil, Free Speech, Free Men, Frémont!”

Of course not all speech is good speech.  Just look at the millions of victims of the writings of Marx, Lenin, and Mao.  It is certainly tempting to think that maybe, just maybe, if socialist, fascist, and Nazi writers had been censored before their vile ideologies could take hold that millions of lives could have been saved.  Yet history does not support this argument.  Imperial Russia was certainly no haven of free speech, and the pre-revolutionary government did all it could to censor socialist thought.  As former ACLU president Nadine Strossen explains in her new book:

Proponents of “hate speech” laws assume that the enforcement of such laws might have prevented the spread of Nazi ideology in Germany, but the historical record belies this assumption. Throughout the Nazis’ rise to power, there were laws on the books criminalizing hateful, discriminatory speech, which were similar to contemporary “hate speech” laws. . . .  The German “hate speech” laws were enforced even against leading Nazis, some of whom served substantial prison terms. But rather than suppressing the Nazis’ anti-Semitic ideology, these prosecutions helped the Nazis gain attention and support.

Strossen goes on to explain how modern hate-speech laws are far from effective, but instead they actually promote repugnant ideologies by giving them even more attention and allowing vile individuals to cloak themselves with the mantle of free-speech martyrdom.  The pattern is clear: attempts to censor speech that is viewed as being harmful or dangerous are ultimately ineffective and counterproductive.

The power of speech, however, goes far beyond the ability to simply withstand censorship.  The true power of speech is that it can actually change minds.  And it isn’t just my speech that can change other people’s minds.  The speech of others can, if I dare let it, change my own mind.  Speech can inform me of things that I am ignorant; it can correct me when I am mistaken; it can point out the flaws in my logic; it can challenge my preconceived notions; it can cast down my most cherished beliefs; it can attack the failings in my character; it can make me a better man.  This process is not pleasant, and these words can indeed hurt me, but it would be folly to fight against it.  There is no governmental power, even in the most totalitarian of states, which can match this power of speech.  That is why the pen is mightier than the sword.

Thanks to Nike’s new ad featuring former football player Colin Kaepernick (and the endless stream of Facebook memes parodying the ad) the nation is once again in an uproar regarding the propriety of Kaepernick’s decision to protest racial inequity in the criminal justice system by taking a knee during the national anthem.  This is one of those rare instances where there is a major political controversy and I don’t really take a side.  I can sympathize with points made by both sides of the argument, but I don’t have enough of an opinion to take sides.  But since everyone seems to think that military veterans have some sort of special insight into issues about respecting the flag (a view that I do not agree with) here is this grouchy former Marine’s rant about the flag.

I don’t get too worked up when people disrespect the flag to make some sort of political or social point, such as burning a flag or kneeling during the anthem.  I think that it is a stupid, ineffective way to make a point, and you are far more likely to alienate people than changing their minds, but whatever, American history is full of all sorts of stupid, disrespectful, and potentially alienating protests.  While intentionally disrespecting the flag may be stupid, it is most certainly constitutionally protected speech, and the government absolutely cannot outlaw such expressions.  It’s a free country and every idiot in the world is entitled to disrespect the US and its flag without fear of government reprisal.

While I largely just shake my head at misguided attempts to win hearts and minds by intentionally disrespecting the flag, there are things that people do with flags that drives me absolutely bonkers: people who unintentionally disrespect the flag through their lazy and ignorant attempts at patriotism.  A few examples I have seen: American flag paper plates and napkins, which you cover in food and dump in the garbage; sticking hundreds or thousands of tiny little flags into the ground along public streets for the 4^th of July or Memorial Day and then just leaving them there as litter to be picked up with discarded cigarette butts; continuing to fly a faded, ragged, or torn flag because you are just too cheap to buy a new one; and of course what better way is there to show your respect for the flag than to cover your ass with American flag boxers (or not cover it with an American flag thong).  As far as I am concerned, each of these is infinitely worse than a football player taking a knee during the anthem.

For several years the local McDonalds near my old house in Maryland seemed to be on a mission to find every possibly way to fly an American flag incorrectly (obviously this was an elaborate conspiracy to personally aggravate me on my daily commute).  For months on end they flew a tattered old flag, with the stripes literally coming apart at the seams.  With every storm the flag got worse and worse.  By the end I don’t know what was holding it together.  When they finally replaced the flag they bought a bigger flag, but they didn’t adjust the distance between the two clips holding the flag to the rope, so it would not fly properly and instead just looked like a sail.  Then for some occasion I don’t remember flags were lowered to half-mast for a day, and while McDonalds lowered the American flag to half-mast, they kept the McDonalds flag on the adjacent pole at full-mast (which, for those of you who are not up to date on your flag etiquette, is a big no-no).  Then the next day they tried to raise the American flag back up to full-mast, but they were too lazy to finish the job, so it only got to about ¾-mast, with the McDonalds flag still flying over the Stars and Stripes.  It stayed like this for months.  As my poor wife can attest, I griped about this incessantly, and for several years I boycotted McDonalds (of course I rarely eat at McDonalds, so my “boycott” was just as brave, self-sacrificing, and effective as those who are now buying Nike products in order to burn them on social media).  I have no idea why a global fast-food chain feels the need to put on some fake patriotic display by flying the flag, but if they are going to do it they can at least do it in a way that does not disrespect the flag.

If you want to be a real stickler about respecting the flag then you need to familiarize yourself with the U.S. Flag Code, which is codified into law at 4 U.S.C. §§ 1-10.  Of course, once you read the Flag Code you realize that probably half of the ways that people use and display the flag in their lazy attempts at patriotism are legally considered disrespect to the flag.  Are you really going to confront your neighbors for violating § 6(a) because they leave the flag flying outside their house at night without ample lighting?  Are you going to boycott companies that include the flag in their advertising and marketing strategy in violation of § 3 and § 8(i)’s command that “[t]he flag should never be used for advertising purposes in any manner whatsoever”?  Are you going to write your Congressman and demand that the Post Office stop printing American flag stamps, which manages to violate both § 8(g) when it stamps a postmark on top of the flag and § 8(i) when it prints the flag on something that is designed for temporary use and discard?  Are you going to call out people who ignore § 8(d) by wearing the flag on clothing, or those who defy § 8(j) by placing a flag pin anywhere other than “on the left lapel near the heart”?

And since it was patriotic displays at football games that started this whole discussion, are you aware that the hugely popular act of unrolling a giant American flag that covers the entire field is in fact an act of disrespect?  Section 8(c) states as plainly as possible that “[t]he flag should never be carried flat or horizontally, but always aloft and free.” Unless my eyes are greatly mistaken, in the photo below (which I believe comes from the 2017 Holiday Bowl) at least a company’s worth of U.S. Marines, in Dress Charlie uniforms, are publicly disrespecting the flag in open defiance of U.S. law.  Who, dare I ask, will be writing to the Commandant of the Marine Corps to demand that these mutinous Devil Dogs be punished?

Of course, the U.S. Flag Code does not contain any sort of enforcement provisions or punishments.  Indeed, any attempt to enforce the Flag Code would almost certainly be struck down as a violation of the First Amendment under such cases as Texas v. Johnson (holding that burning the flag was constitutionally protected speech) and West Virginia State Board of Education v. Barnette (holding that schoolchildren could not be forced to pledge allegiance to the flag).  Much like the Pirate Code in Disney’s Pirates of the Caribbean, the Flag Code “is more what you would call guidelines than actual rules.”  It is something that you invoke when it is convenient, typically in order to accuse your opponents of violating it, and it is something that you quickly abandon whenever it is too burdensome for you or your friends.

All of this leads me to the conclusion that the vast majority of those who oppose and criticize Colin Kaepernick don’t actually care about the fact that he disrespected the flag.  People disrespect the flag all the time and the only people who care are neurotic former Marines turned attorneys like myself.  I suspect that Kaepernick’s real sin in the eyes of his critics is that he voiced an opinion that they didn’t want to hear: that he doesn’t think black people get a fair shake in our criminal justice system.  We can and should have a civil debate about whether or not Kaepernick is right about this.  But unless you are actually willing to equally criticize those Marines at the Holiday Bowl, and every other Flag Code violation, please just drop the self-righteous attack on Kaepernick for disrespecting the flag and the troops.

With the Supreme Court’s release of its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission religious liberty and the First Amendment are once again dominating the news and social media.  Particularly among my fellow evangelical Christians religious liberty has been a hot topic for the past decade or so.  Actions of the Obama administration and several state governments against Christian entrepreneurs have led many evangelicals and other conservative Protestants to believe that a new age of persecution of Christians has begun.  If there were a way to track the rate at which Christians quote different passage of the Bible I suspect that you would see an explosion in the use of John 15:18-21 where Jesus discusses the world’s hatred and persecution of his disciples.

As a result, evangelicals are increasingly invoking the First Amendment’s protection of religious liberty in the face of unwanted government action.  My fellow evangelicals seem to be genuinely perplexed at the level of hostility from the political left and are increasingly fearful of what the future may hold.  I think that they would do well, however, to familiarize themselves with the role that conservative Protestants have played throughout the history of the First Amendment and religious liberty in America.  The sad truth is that we are not the heroes in this story.  Nor are with the victims.  In this story we are the villains.

Even though many of the early colonists to arrive on the east coast had been victims of religious persecution themselves, this did not mean that they valued religious liberty for others.  The Puritans settlers of New England are probably the clearest example: they fled England not to form a religiously free society, but to form a perfect religious society.  Those who held unorthodox Protestant views faced persecution in most colonies, and the rights Catholics were threatened everywhere.  Although Maryland was founded by Lord Baltimore as a refuge for oppressed British Catholics, in 1692 Protestants overthrew the government, repealed the Toleration Act, and outlawed the Catholic Church.

The Protestant majority’s dominance over American politics, and its hostility towards Catholics, continued well into the 20^th century.  Protestant mobs were known to attack Catholic individuals and Church property.  Nativist groups during the 19^th century, such as the Know-Nothings and the American Party viewed the US as a Protestant nation and saw mass Catholic immigration into the US as an existential threat.  Opposition to immigration and opposition to Catholicism were one and the same.

The public schools of the time, all of which taught a form of non-denominational Protestantism, were utilized to “properly” educate and assimilate Catholic children into the Protestant society.  Catholic parents were understandably upset by this, so the Catholic Church established parochial schools across the country to educate Catholic children.  The majority of states enacted so-called “Blaine Amendments” to their state constitutions, which prohibited public support for Catholic and other “sectarian” schools.  The public schools, however, would continue to use public funds to promote Protestant Christianity.

This was not enough for some Protestants, however, who insisted that all private education should be forbidden and all children should be forced to attend the same Protestant-leaning public schools.  In a 1922 ballot initiative the people of Oregon adopted a compulsory education law that aimed to destroy the influence of Catholic schools by forbidding all private schools.  Thankfully, this attempt to utilize the public school system to promote Protestant orthodoxy was struck down by the Supreme Court in Pierce v. Society of Sisters, which held that parents, not the state, had the right to direct the education of their children.

Nor were Catholics the only victims of they Protestant majority’s oppression.  When Joseph Smith published the Book of Mormon in 1830 and founded what would become known as the Church of Jesus Christ of Latter-day Saints he was met with immediate hostility from conservative Protestants due to his numerous departures from Protestant orthodoxy.  As the movement grew so did Protestant hostility.  In 1838 the governor of Missouri ordered the state militia to violently expel the Mormons from the state.  After several years of escalating tension in Illinois, a mob murdered Joseph Smith in 1844, which prompted the majority of Mormons to move west to the isolated territory of Utah.

Tension with the Protestant majority continued, however, especially over the issue of polygamy.  Monogamy was well established within Protestant orthodoxy, and they insisted that any civilized and Christian society would outlaw polygamy, as every state in the Union had.  The Mormons, however, believed that polygamy was religiously acceptable, even though a large majority of Mormon families were still monogamous.  In 1862 President Lincoln signed a law banning polygamy in all federal territories, but it was largely unenforced until after the Civil War ended.

Polygamist Mormons insisted that this federal ban was an affront to their religious liberty and was prohibited by the Free Exercise Clause of the First Amendment.  In 1878 the Supreme Court ruled in Reynolds v. United States that while the government “cannot interfere with mere religious belief and opinions” it could prohibit practices such as polygamy.  It held that allowing religious exemptions to laws would “make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself.”  This argument, that the First Amendment only protected beliefs, not actions, continues to be promoted by some to this day.

Yet the Protestant majority was not content with simply punishing acts of polygamy, it insisted that Mormons must change their beliefs.  Congress enacted a series of increasingly draconian laws designed to force a change in Church doctrine.  Not only were actual polygamists stripped of their right to vote, hold office, or serve on a jury, the same punishment was inflicted on anyone who argued in favor of polygamy and anyone who belonged to an organization that promoted polygamy.

This was upheld in the 1890 case of Davis v. Beason.  The Supreme Court held that “[t]o call their advocacy [of polygamy] a tenet of religion is to offend the common sense of mankind.  If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment as aiding and abetting crime are in all other cases.”  In essence, the Court ruled that the Latter-day Saints were not actually a religion, but simply one large criminal conspiracy to commit polygamy.

The coup de grâce came with the Edmunds-Tucker Act, where Congress disincorporated the Church, dissolving its legal existence, and ordered the seizure and forfeiture of the Church’s assets.  In Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, the Supreme Court argued that “since the Church of Jesus Christ of Latter-Day Saints has persistently used, and claimed the right to use” its assets “for the purpose of promoting and propagating the unlawful practice as an integral part of their religious usages” the Edmunds-Tucker Act did not violate the First Amendment.  In the face of such coercion, the Church leadership capitulated and announced a formal change in doctrine prohibiting polygamy.

While there are few today, Mormons included, who would like to see polygamy practiced, anyone who claims to support religious liberty should be horrified by this treatment of 19^th centrury Mormons.  In order to defend Protestant orthodoxy regarding marriage from a heretical offshoot, the government stripped the heretics of their civil rights without due process, dissolved their church, and seized its assets.  I know of no other instance where the Supreme Court so whole heartedly endorsed the legal, systematic oppression of a disfavored religious group.

Following the Mormon abandonment of polygamy, Jehovah’s Witnesses became the new whipping boy of Protestant America.  While mob violence and legal harassment were always common, Jehovah’s Witnesses were particularly despised during times of war and national emergency, because they would not serve in the military, salute the flag, or pledge allegiance.

Take the case of Chaplinsky v. New Hampshire.  Chaplinsky was preaching on the public sidewalk in 1940 when he was surrounded by an angry mob that mocked Jehovah’s Witnesses, demanded that he salute the flag, and assaulted him in full view of law enforcement officers.  The police refused to protect his right to preach and instead took him into custody, at which point Chaplinsky called the cop a “damned fascist” and a “damned racketeer.”  For this he was charged with publicly calling someone “an offensive or derisive name.”  The Supreme Court upheld his conviction on the ground that these were “fighting words.”

Whatever you may think of their theology, the Jehovah’s Witnesses have done more to advance the First Amendment’s protection of the freedom of religion, conscience, and speech than any other group in American history.  Between 1938 and 1946 alone the Supreme Court heard twenty–three First Amendment cases involving Jehovah’s Witnesses.  This is a testament to both the resolve of the Jehovah’s Witnesses, as well as the determination of the Protestant majority to oppress this relatively tiny religious sect.  Among the First Amendment rights secured by Jehovah’s Witnesses at the Supreme Court are the right of school children to refuse to salute the flag, the right to preach or hold a service in a public park, and the right to evangelize door-to-door.

The historic desire of conservative Protestants to use government power to punish unorthodox belief is mirrored in their desire to use government power to promote orthodox belief.  It doesn’t matter if it is public school prayer (Engel v. Vitale; Lee v. Weisman; Santa Fe Independent School District v. Doe), Bible readings (School Dist. of Abington Tp. v. Schempp), creationism v. evolution (Edwards v. Aguillard), nativity scenes on public property (Lynch v. Donnelly), “under God” in the Pledge of Allegiance (Elk Grove Unified School District v. Newdow), the Ten Commandments in courthouses (Van Orden v. Perry), “In God We Trust” on money (Doe v. Congress).  Without fail, conservative Protestant denominations and thought leaders came out in favor of the government promoting their religious opinion.

My point in this post is not to say how the First Amendment should be applied to any particular case or fact pattern, or to say what religious practices should or should not receive protection.  My point is that my fellow evangelical Protestants should keep this history in mind when we insist, sometimes hysterically, that we are the victims of secular progressive oppression.  Perhaps the reason that progressives seem so unsympathetic to the cries of “religious liberty” from Christian bakers and hobby titans is that we have spent more than 300 years trying to deny religious liberty to those of other religions.  Perhaps it is fair for progressives to think that it is acceptable to force feed us a spoonful of our own medicine.  Perhaps if we showed even the slightest hint of regret we might receive more sympathy.  While the Constitution should provide equal protection to hypocrites, “Religious liberty for me, but not for thee!” will never be an inspiring rallying cry.

I recently noticed that my former Constitutional Law professor, Mark Graber, along with Professor Howard Gillman, published The Complete American Constitutionalism, Volume 5, Part I: The Constitution of the Confederate States.  I have been fascinated by the Confederate Constitution for quite some time.  As you would expect, most people are not going to devote much time or energy to study or write about the governing charter of a short-lived and reviled government.  So I was pleasantly surprised to see that Graber and Gillman had produced a whole 560-page volume on the topic.

My interest in the Confederate Constitution stems from one of the most maddeningly persistent arguments made by some self-styled libertarians or constitutional conservatives: that the real grievance of the South was that the Federal government had become excessively powerful, and that the Confederacy was trying to restore the proper balance between the central and local governments.  Under this theory, the primary concern of the Confederates was federalism, limited government, free trade, and states’ rights, while slavery was a minor issue.  The Confederate Constitution, however, tells a very different story.

While there is ample historical evidence to show that this explanation for Southern secession is incorrect (most obviously the fact that they openly declared that they were seceding over slavery), I looked to the Confederate Constitution to see if the government instituted by the south really would have promoted a more limited government.  If you have any familiarity with the U.S. Constitution, then you will quickly notice the incredible resemblance between the two documents.  They are not just similar.  The Confederates were not just inspired by the U.S. Constitution.  They copied that vast bulk of it word for word.  It is much more accurate to say that the Confederates amended the U.S. Constitution than that they drafted a new one.

This shows that the Southerners were, for the most part, content with the status quo of American government.  Surely if they thought an issue was important enough to fight, kill, and die over, then they would have also thought it important enough to include in their Constitution.  By reviewing the changes that the Confederates made to the Constitution, we can discover what actually motivated succession.  So, as a first-year law student, I began a project of laying the two constitutions out, side by side, and examining, clause by clause, how they differed.  (This is what all 1Ls do for fun, right?)  Those who wish to view the full results of this project may view it here.

This is almost exclusively a textual analysis of the Confederate Constitution.  I have not seen a Confederate equivalent to the Federalist Papers or Madison’s Notes of Debates in the Federal Convention of 1787 to provide any insight into the drafting of the Confederate Constitution (hopefully Graber and Gillman’s book sheds light those types of sources).  Additionally, the Confederate President and Congress never got around to nominating and confirming justices to the Supreme Court, so there is no authoritative interpretation of the document.  It is also unclear whether decisions of the U.S. Supreme Court regarding identical provisions should be considered binding.  I am presuming that most of the major decisions of constitutional law would have been followed, but who knows.

Below I will summarize the most significant changes.  I will start with those changes that could potentially have resulted in a more limited federal government and greater federalism, which could generally be considered a positive development by libertarians and conservatives.  Next, I discuss several changes that would not have resulted in a more limited government but are noteworthy nonetheless.  Finally, I examine the numerous changes to the Constitution regarding slavery.  Ultimately, I must conclude that the driving force and objective of the Confederate Constitution was to solidify the institution of slavery and protect it from all legal and political assault.

Changes that Promote Limited Government

At first glance, there is some reason to believe that the Confederate Constitution would do a better job at promoting limited government.  There are many changes that libertarians and small government conservatives would support.  Several of these provisions have analogs in numerous state constitutions, and one has even been adopted into the Federal constitution.  After closer scrutiny, however, I believe that these changes would have been less significant in practice than they are on paper.

The Tax and Spending Clause

The most significant change is to the Tax and Spending Clause of Article I, Section 8, which, in the U.S. version gave Congress the power “To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.”  The Confederate version made three important changes: (1) excise taxes could only be levied “for revenue” and not as sin taxes; (2) tariffs and duties could not “be laid to promote or foster any branch of industry”; and (3) spending must be for the common defense or to “carry on the Government of the Confederate States” rather than for the “general welfare.”

These three changes have the potential to constrain Congress’ power to tax and spend.  The government would no longer have the power to engage in protectionism through tariffs.  Nor could it punish consumers and disfavored industries with paternalistic sin taxes.  Most importantly, the nearly limitless interpretation of the “general welfare” adopted by many politicians such as Alexander Hamilton (and later endorsed by the Supreme Court during the New Deal) is replaced with a seemingly more limited spending power.

There is reason to doubt, however, that these changes would have had as significant an effect as many would like.  To begin with, what is the difference between a tariff designed to raise revenue and a tariff designed to “promote or foster any branch of industry?”  Similarly, what is the difference between an excise tax “for revenue” and an excise tax to discourage consumption of a disfavored product?  Both tariffs and excises produce revenue, and both discourage the consumption of some products in favor of others.  If I am a member of the Confederate Congress and I want a protectionist tariff, all I must do is say that the purpose is to raise revenue.  That it just so happens to protect a domestic industry is just a convenient “side-effect.”  Similarly, if I think fossil fuels are destroying the environment, I can just propose an excise tax on coal and oil “for revenue.”  I can vehemently deny that I am trying to destroy the fossil fuel industry or promote renewables, because after all, I am just bringing in revenue to the Treasury.

Doing away with spending for the subjective and vague “general welfare” and replacing it with spending to “carry on the Government” is a more hopeful change.  In theory, a narrow interpretation of “carry on the Government” would render a significant majority of current federal spending, including most wealth redistribution and entitlement spending, unconstitutional.  But I think that “carry on the Government” is still slippery enough for politicians and judges to justify most government spending.  After all the Social Security Administration is a part of “the Government” and it needs money in order to “carry on” its mission of writing checks to people.

Don’t get me wrong, I prefer this version of the Tax and Spending Clause to what we have today.  If someone proposed an amendment to adopt this language I would support it, but I don’t think it reflects a serious desire to restrain the power of Congress.  If you really wanted to restrict the abuse of tariffs and excise taxes to pick and choose economic winners and losers, then just require that all tariffs and excises must be uniform across all products in all industries.  If you want a tariff or an excise tax, then it would have to be the same for everything.  That way Congress can still raise revenue, but it has no power to play favorites.  Or you can just take away Congress’ tariff and excise powers entirely (I’ll let the tax wonks out there debate what type of tax is preferable).  Similarly, if you really wanted to restrict the spending power, it isn’t hard to think of a better way.  How about saying that Congress may only tax and spend to “provide for the common defense or to execute one of the government’s constitutionally enumerated powers.”  I am sure that anyone who spent any significant amount of time thinking about it could come up with an even better wording.  These are the types of things you would do if you actually wanted to address the problem rather than paying lip service to it.

Federal Transportation Infrastructure

If you are the type of libertarian who takes enormous delight in expounding upon the merits of private roads, then you might at first think that the Confederacy is for you.  That is because the Confederate Commerce Clause, Article I, Section 8, Clause 3, states that “neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce.”  By “internal improvement intended to facilitate commerce” the Confederates were taking a pop shot at the numerous turnpikes, canals, and railroads that Northerners often wanted the Feds to pay for.

While federal transportation spending (whether it be in the 19^th or 21^st century) certainly tends to consist of wasteful boondoggles designed to shower largess on special interests, this just isn’t a problem that I get all that worked up about.  If we ever get to the point where the Bridge to Nowhere is the biggest problem with the federal government, then I will die a happy man.  As a practical matter, the Confederate Constitution only banned federal transportation infrastructure, not state and local infrastructure, and state and local infrastructure projects can be just as ridiculous as federal projects (how far over budget is the California Bullet Train).  Perhaps this is an improvement, but it is hardly a revolutionary change.

The Post Office

I find it quite amusing that the Confederates included a constitutional mandate, found in Article I, Section 8, Clause 7, that the Post Office must fund itself with its own revenues.  Even in a world with no phones or Internet, the Post Office was apparently still unable to turn a profit and instead was a burden on the taxpayers.  I support this change, but why don’t we just privatize the Post Office and be done with it.

Local Impeachment of Federal Officials

A thought-provoking idea that the Confederates adopted in Article I, Section 2, Clause 5, is to allow state legislatures to impeach any federal executive or judicial official who operates solely within the borders of that state.  This could have served as a useful check on local federal officials, particularly federal district judges and prosecutors, but the impeachment would still have to be tried by the Confederate Senate.  I suspect, however, that if state legislatures began making extensive use of this power to remove unpopular federal officials, the Congress and executive agencies would just redraw the territorial boundaries of these lower officials so that they straddle multiple states.  There is no reason that a federal judge, prosecutor, or other federal official must only operate only within one state’s borders.

No Federal Diversity Jurisdiction

To lawyers (and only lawyers) the most interesting change might have been the elimination of federal diversity jurisdiction from the federal courts.  To the non-lawyers out there, federal diversity jurisdiction is what allows a citizen of state A to sue a citizen of state B in a federal court, rather than a state court.  The thought was that state courts would be biased in favor of their own citizens, so federal diversity jurisdiction provided a neutral court to adjudicate cases.  Many believed that it was problematic that this allowed federal courts to create federal common law on matters such as contracts, torts, and family law – areas traditionally left to the states.  In the 1938 case of Erie Railroad Co. v. Tompkins, however, the Supreme Court ruled that federal courts hearing diversity jurisdiction cases must apply the substantive law of the state, not federal common law.  We lawyers spend an inordinate amount of time – in law school, bar exam studies, and in practice – agonizing over Erie and its meaning, so to us the elimination of diversity jurisdiction seems to shake the very foundations of the earth.  I suspect that most laymen couldn’t care less.

Line-Item Veto, Single Subject Rule, and Term Limits

Finally, the Confederate Constitution included several clauses found in many state constitutions.  Article I, Section 7, Clause 2 provides the President with a Line-Item Veto for appropriations bills, which could potentially be used to cut down on wasteful pork barrel spending.  The Line-Item Veto has had a mixed record, however, at the state level, and there are some libertarians who object that it would further strengthen the expansive powers of the President at the expense of Congress.  A Single-Subject Rule was added by Article I, Section 9, Clause 20, which requires all legislation to address only a single subject, so enormous, must-pass omnibus bills and riders attached to unrelated laws would not be allowed.  As with the Line-Item Veto, the Single-Subject Rule is very common in state constitutions, but enforcement can vary, resulting in the Rule being a meaningless formality in some states and a serious restraint on legislation in others.  Lastly, the Confederate President was limited to a single 6-year term.  I generally think that each of these three changes was a good thing (I think I even prefer the single 6-year term to a limit of two 4-year terms), but I am skeptical that any would have resulted in a significant shift in policy.

The combined effect of each of these changes, if viewed in the most optimistic light, could have resulted in a nation more committed to limited government and federalism.  I think a lot of it is fluff, but good fluff at least.  Unfortunately, these are not the only changes that the Confederates made.

Miscellaneous Changes

There were a handful of significant changes that do not fit neatly into either the pro-limited government or the pro-slavery categories, but they seemed worth noting.

First, the U.S. Constitution places and absolute ban on the taxation of exports.  Article I, Section 9, Clause 6 of the Confederate Constitution, on the other hand, allows the taxation of exports with a 2/3 vote of both houses of Congress.  Perhaps the fact that the Southern economy was built around exporting cash crops led the authors of the Constitution to believe that this might end up being the only reliable source of revenue.  Whatever the reason, this seems to cut against the free trade, anti-tax narrative of the myth.

Second, the Port Preference Clause of the U.S. Constitution forbids federal preferences for the ports of any one state over the ports of any other state, and says “nor shall vessels bound to, or from one state, be obliged to enter, clear, or pay duties in another.”  The Confederate Article I, Section 9, Clause 6, on the other hand, deletes this last sentence.  While I confess that I am no expert on the Port Preference Clause, I don’t see any reason to drop the line unless you wanted to show preference to the ports of one state by making ships clear customs and pay duties in the preferred state even though they were bound for another state.  Again, this seems hard to reconcile with the states’ rights / free trade narrative.

Third, Article I, Section 6, Clause 2 gives Congress the right to give Cabinet Secretaries a non-voting seat in Congress.  I note this simply because it seems to weaken the separation of powers between the executive and legislative branches.

Fourth, Article II, Section 2, Clause 3 of the Confederate Constitution specifies that only “[t]he principal officer” of any executive department, along with all diplomats, may be dismissed at the pleasure of the President.  All other executive officials may only be removed for cause.  This seems to be an attempt to reform the federal bureaucracy from a “spoils system” into a more professional civil service, but if flies in the face of the Unitary Executive theory that many limited government advocates now believe is necessary for restraining an unaccountable administrative state.

Finally, the amendment process of Article V is completely changed.  Congress would not play any roll in amending the Constitution.  Instead, if any three states suggest an amendment, a convention would be held, and if the convention approved the amendment then it would be sent to the states, where it would require approval of 2/3 of the states to be ratified.  Commentators of all political persuasions have lamented over the years the arduous process for amending the U.S. Constitution.  Maybe this was an improvement, but there is no way to know how this significantly easier amendment process would have been used over time.

Pro-Slavery Changes

While the non-slavery changes to Confederate Constitution were rather eclectic and half-hearted, the pro-slavery changes in the Constitution reflect one clear, overriding goal: the protection of the institution of slavery from all legal and political assault.

As anyone who has studied the U.S. Constitution knows, slavery was a touchy subject at the Constitutional Convention.  While the Constitution made several morally repugnant compromises regarding slavery, the delegates to the Convention explicitly avoided using the word “slave” or “slavery.”  Whatever their moral failings with regards to slavery, they at least had the decency to be embarrassed about their moral failings.

The Confederate Constitution has no such squeamishness.  Slaves were called slaves.  Rather than referring to the Atlantic slave trade as “the migration or importation of such persons as any of the states now existing shall think proper to admit” it speak of “the importation of negroes of the African race from any foreign country.”  Rather than “three fifths of all other persons” it is “three fifths of all slaves.”  A fugitive slave is simply called a “slave” rather than a “person held to a service of labour.”  Far from being embarrassed by slavery, the Confederate Constitution protects the “right to property in negro slaves” and the “institution of negro slavery.”

While these repugnant changes in vocabulary might seem to have little legal significance, it is actually a direct refutation of a strain of abolitionist thought.  Some abolitionists, most prominently Frederick Douglass and Lysander Spooner, argued that the Constitution’s refusal to use the word “slave” showed that the Constitution did not support slavery but in fact showed that slavery was already unconstitutional.  It seems to me that Confederate Constitution’s repeated reference to race-based slavery is not just some casual and thoughtless use of racist language, it is an intentional rebuttal of the Douglass/Spooner argument.

Article I, Section 9 also forbids the government from passing any “law denying or impairing the right of property in negro slaves.”  As horrifying as this provision is on its own, its precise location within Section 9 should induce nausea in any lover of constitutional liberty.  This provision follows directly after the great constitutional provisions guaranteeing the Writ of Habeas Corpus and prohibiting ex post facto laws or bills of attainder.  Additionally, the first eight amendments in the U.S. Bill of Rights were not located at the end of the Constitution, but were instead integrated into Article I, Section 9.  The effect is quite powerful, and I suspect quite intentional: sitting right in the middle of a list of inalienable, God-given rights is the right to own black people.

The Confederate Constitution is silent on whether or not the individual states can abolish slavery within their borders.  If we assume that the Confederate Supreme Court would have some day chosen to follow the holding of the U.S. Supreme Court in the 1833 case of Barron v. Baltimore, then this would mean that the states could choose to abolish slavery.  In Barron, the Court held that the individual rights listed in Article I, Section 9 and the Bill of Rights only provided protection against federal action, while the states were only constrained by their own state constitutions.  While many of the Radical Republicans in the north rejected the holding of Barron, it seems unlikely that the Confederates would have departed from this precedent.

Had any Confederate state ever managed to abolish slavery, however, it would have quickly found being a “free” state within the Confederacy was largely meaningless.  One of the most controversial debates regarding slavery in the pre-war years was over the legal status of slaves within the “free” northern states.  Sadly, one of the worst compromises in the U.S. Constitution was the Fugitive Slave Clause, which required that slaves who escape into “free” states must be returned to their masters.  Over the decades northerners became increasingly resistant, if not downright hostile, towards slave catchers dispatched into the north to re-enslave blacks.  The southerners, far from supporting federalism or states’ rights, insisted that the northern states abide by federal law and cooperate with the slave catchers.  Given this history, it seems hard to imagine a scenario where a Confederate Congress would show any leniency in mandating compliance with the Fugitive Slave Clause.

An even greater imposition on the “free” states was what the southerners referred to as the right to sojourn.  Proponents of the right to sojourn argued that a slave owner had the right to voluntarily take his slaves into a “free” state, and that the “free” state was powerless to either emancipate the slaves or insist that they be removed from the state.  While in theory these “sojourns” were supposed to be temporary, in practice they often lasted years, and northerners rightly complained that it was really an indefinite right to introduce slavery into the “free” states.

For example, in the infamous case of Dred Scott v. Sandford, Scott’s owner voluntarily took him from Missouri to live in the “free” state of Illinois for a full two years, but the Court held that nothing in Illinois law could bestow freedom on Scott.  Instead, it was only the laws of Missouri that could free Scott in Illinois!

The drafters of the Confederate Constitution were not content, however, to rely upon their victory in Dred Scott.  They modified the Privileges and Immunities Clause of Article IV to read: “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.”  Additionally, the Fugitive Slave Clause was modified to include not just escaped slaves, but those “lawfully carried into another” state.  There was absolutely nothing that a “free” state could do to stop owners from bringing their slaves into the state.

The Constitution also addressed the perennial question of whether slavery would expand into new territories and states.  After decades of bickering, and at times bloodshed, over slavery in the territories, the Supreme Court thought it would have the final word in Dred Scott when it declared that federal laws prohibiting slavery in the territories would deprive slave owners of their property without the due process of law.

Again, the Confederates were not content to rely upon Dred Scott.  They added to Article IV, Section 3 a new clause guaranteeing that in all territories “the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and by the Territorial government.”  Similarly, the Confederacy could ensure that every newly state admitted also permitted slavery by requiring a 2/3 supermajority in Congress, rather than the simple majority required by the U.S. Constitution.

These new addition to the Constitution, when combined with the previously existing Fugitive Slave Clause, created an impenetrable wall protecting the institution of slavery from all political and legal attack.

Conclusion

The men who drafted and ratified the Confederate Constitution were clearly smart men who were very familiar with the seven decades of constitutional law and history since the Convention in Philadelphia.  They displayed their talent by drafting a constitution that would permanently enshrine slavery as the Confederacy’s central constitutional feature.  This was their objective, and they accomplished it with flying colors.  Given how capable these men were when they put their mind to it, the haphazard, ineffective, and symbolic changes they made to the rest of the Constitution point to only one conclusion: that they didn’t really care all that much about anything other than protecting slavery.

This bulwark of slavery was the supreme law of the Confederacy.  This is what Confederate officials swore an oath to support and defend.  This is what Confederate soldiers killed and died for.

Conservatives and libertarians who insist on believing that the Confederacy was about limited government are kidding themselves.

With the elevation of Justice Neil Gorsuch to the Supreme Court there has been a renewed focus, particularly within libertarian and limited government legal circles, on the problem of overreaching administrative agencies and the need for more stringent judicial review of agency action.  Most of this attention has been focused on the doctrine known as Chevron deference, which holds that when a statute is ambiguous then a court must defer to an administrative agencies interpretation of that statute.  While still serving as a circuit judge, Gorsuch wrote in a now famous (at least within the world of admin law experts and libertarian lawyers) concurring opinion in which he denounced Chevron for “permit[ing] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”  Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016).  There is now a whole sub-movement with the conservative/libertarian legal movement that believes that now is the time to strike at the administrative state, and that Chevron will be the first domino to fall.  While I share this concern about Chevron and administrative power, I think that there is a better place to start the war on the administrative state: The Federal Communications Commission’s Forbearance power.

America’s telecommunications industry, and the FCC, is governed, by and large, by the Communications Act of 1934.  If you think it is absurd that the tech sector, which evolves and reinvents itself on a constant basis, is subject to laws written over 80 years ago (and the countless regulations that the FCC has promulgated under those laws during that time) you would not be alone.  The last time that Congress passed a major amendment to this area of the law was with the Telecommunications Act of 1996.  Of course, by tech standards, this is still positively ancient, an era when AOL floppy disks still roamed the earth.  While the Telecom Act made some major changes to the law, the Communications Act was still left largely intact, even though most people recognized that it was highly problematic in the modern world, particularly when applied to the infant communications network known as the Internet.

Recognizing its failure to supply the nation with a viable set of laws governing a vital industry – but lacking the political will to actually fix the problem – Congress enacted Section 10 of the Telecommunications Act, codified at 47 U.S.C. § 160.  The section created what is known as “forbearance authority,” authorizing the FCC to decline to enforce any statute, regulation, or rule if:

(1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory;

(2) enforcement of such regulation or provision is not necessary for the protection of consumers; and

(3) forbearance from applying such provision or regulation is consistent with the public interest.

The FCC can apply its forbearance authority on a case by case basis based on individual applications, or it can declare on its own initiative that it will forbear from enforcing a statute or regulation across the board.  Congress has given up all pretense of legislating communications policy and has delegated to the unelected FCC the power to write, amend, or repeal communications law as it sees fit.  After looking at the tangled mess of the Communications Act, the Telecom Act, and six decades wroth of FCC regulations, Congress shrugged is collective shoulder and told the FCC, “You deal with it!  If you think the laws we passed are good then enforce them, if you think the laws we passed are stupid then ignore them.  We.  Don’t.  Care.”

On the one hand, to free marketeers who are skeptical of regulations this is a good thing.  A good number of the laws and regulations overseen by the FCC are indeed stupid, unnecessary, and stifle innovation, so forbearance is a useful deregulatory tool.  When taken in isolation, each time the FCC grants forbearance and declines to enforce a statute or regulation it is a small victory in the fight for limited government.

These small victories, however, are insignificant compared to the incredible power it concentrates into the hands of administrative officials.  One of the central tenants of our Constitution is the separation of powers.  The Constitution clearly states that “All legislative Powers herein granted shall be vested in a Congress of the United States. . ..”  Art. I, § 1 (emphasis added).  The President, on the other hand, is only vested with “executive Power” and “he shall take Care that the Laws be faithfully executed. . ..”  Art. II, § 1 and § 3.  Except for his power to sign or veto laws, the Constitution gives the President, and by extension the entire executive branch, no roll in creating, amending, and repealing legislation.  The legislature enacts laws, the judiciary interprets laws, the executive enforces laws.  We all learned this in junior high.  The Congress cannot delegate to the executive the power to enact, amend, or repeal laws on its own.

Of course, most lawyers and government officials will tell you that this is an absurd and quaint notion, that expecting Congress to actually pass the rules that will govern us is unrealistic, and that executing the law inherently requires that the executive create rules and regulations about how it will enforce the law.  While it is true that courts since the New Deal have given Congress significant freedom to empower agencies to make regulations, there are limits.  The Supreme Court has held that Congress may not authorize an agency to make rules and regulations unless it first “lay[s] down by legislative act an intelligible principle to which [the agency] is directed to conform.”  Whitman v. Am. Trucking Associations, 531 U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

It is certainly true that the Supreme Court has set the bar of the “intelligible principle” test very low, and that it has rarely ever struck down a delegation of authority to an agency.  But where Congress delegates rulemaking authority but “provided literally no guidance for the exercise of discretion” or grants significant regulatory authority to an agency “on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition,’” the Court has not hesitated to uphold the nondelegation doctrine.  Whitman, 531 U.S. at 474 (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)).  Additionally, “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.”  Id. at 475.  So, while Congress can provide essentially no guidance when delegating trivial matters, “it must provide substantial guidance on setting [] standards that affect the entire national economy.”  Id.

The FCC’s forbearance authority seems unlikely to meet even the very low bar of the intelligible principles test.  To being with, the scope of the power that Congress delegated to the FCC in 47 U.S.C. § 160 is staggering.  It gives the FCC the authority to nullify almost every law that Congress has enacted to govern a major segment of the U.S. economy, and that has a major impact on essentially every aspect of American economic, political, and social life.  Surely the delegation of power on this scope should require “substantial guidance” from Congress if it is to comply with the nondelegation doctrine.  Yet the only guidance that Congress gives the FCC in deciding to nullify an Act of Congress is that: (1) service providers must act justly and reasonably; (2) the nullified laws must not be necessary for consumer protection; and (3) it must be in the public interest.

Justice, reasonableness, consumer protection, public interest.  That is the extent of the guidance that Congress has given the FCC on how it should exercise its forbearance authority.  Given that each of these is an abstract and subjective concept, it is difficult to see any intelligible principle at work here.  Instead, it is an admission that, despite the enormous impact it has on our lives and wallets, Congress has no interest in legislating communications policy and that it is unconstitutionally abdicating its legislative power to the agency.

To see how problematic Congress’ decision to abdicate all legislative power regarding communications policy is one need look no further than the fight over Net Neutrality.  I don’t intend here to make any comment on the wisdom of Net Neutrality as a matter of policy.  Plenty of ink has already been spilled on that debate, and we can all rest assured that the moment a Democratic President appoints a Democratic majority to the FCC we will have that debate all over again.  What I am talking about is the procedural maneuvering that went into the 2015 Protecting and Promoting the Open Internet Order (aka the Net Neutrality Order).

Without going too deep into the morass of communications law, broadband internet services providers were initially classified as “information services” rather than “telecommunication services.”  While information services were only lightly regulated, telecommunication services were treated as common carriers under Title II of the Communications Act.  Title II, which governs traditional land-line telephone services, is the regulatory equivalent of a hydrogen bomb.  It is a raw, unadulterated form of pure regulatory power, and it is not known for its flexibility or its tolerance of innovation.

When the push for Net Neutrality initially came about, most Net Neutrality proponents were content with continuing to classify ISPs as relatively lightly regulated information services.  So, when the FCC imposed Net Neutrality regulations in 2010, it continued to treat ISPs as information services that were not subject to the stringent regulations of Title II.  That came crashing down four years later in Verizon v. F.C.C., where the D.C. Circuit Court of Appeals ruled that the Net Neutrality rules were treating ISPs like common carriers under Title II.  740 F.3d 623 (D.C. Cir. 2014).  While the court ruled that the FCC could regulate ISPs as common carriers under Title II, it would have to first formally reclassify them as telecommunication services, which would subject the ISPs to the full brunt of Title II.

This left the Net Neutrality proponents in a pickle: they desperately wanted Net Neutrality, but they did not want to stifle the innovative and dynamic nature of the Internet with the straightjacket of Title II.  Rather than lobbying Congress to legislate on the matter, Net Neutrality advocates instead cooked up an unprecedented scheme to utilize the FCC’s forbearance authority that would let them have their cake and eat it too.  The FCC would formally reclassify ISPs as telecommunication services that were fully subject to the requirements of Title II.  Then it would utilize the FCC’s forbearance authority to exempt ISPs from the vast majority of Title II’s requirements, while simultaneously reenacting Net Neutrality rules.

One proponent of this scheme was the Electronic Frontier Foundation, which strongly supported Net Neutrality and reclassifying ISPs under Title II but also insisted that “we must simultaneously demand that the FCC explicitly reject any telecommunications regulations beyond specific and narrow prohibitions and requirements designed to create a fair and level playing field for innovation and user choice. Without broad forbearance, reclassification can become a nightmare for users, innovators and service providers alike.”

So, to recap:

Step One:  Pass Net Neutrality Rules

Step Two:  DC Circuit says that Net Neutrality Rules are illegal unless you subject ISPs to Title II

Step Three:  Reclassify ISPs so that they are subject to Title II

Step Four:  Waive the magic forbearance wand and poof, the ISPs are no longer subject to the vast majority of Title II

Step Five:  Pass Net Neutrality Rules Again

You don’t have to be a radical libertarian lawyer waging a holy war against the administrative state to recognize this for what it is.  An administrative agency was dead set on enacting a policy that it (and a significant portion of the public) thought was important.  It ran into the problem that the laws duly enacted by Congress and signed by the President did not allow the agency to do to what it wanted in the way it wanted.  But since Congress had delegated to the agency the power to repeal laws at will, the agency just took a big red marker and crossed out the vast bulk of the law, creating a blank slate from which it could write the rules it wanted the way it wanted.

Maybe this was good for the Internet, but it came at an enormous cost to the separation of powers, the rule of law, and representative government.  If the nondelegation doctrine forbids anything, then surely this is it.  Those who are hopeful that the current Supreme Court will strike back at the expansive administrative state would do will to take aim at the FCC’s unconstitutional forbearance authority.

Imagine that you are the world’s leading time-travel scientist (Dr. Emmett Brown is a simpleton compared to you).  You have grown tired of hearing the endless political, legal, and historical debates about the meaning of the Second Amendment, so you decide to use your scientific know-how to help shed light on the matter.  After months of painstaking work and experimentation you have completed a machine that will allow you to transport James Madison – architect of the Constitution, author of The Federalist Papers, drafter of the Bill of Rights – through time and space from his Montpelier estate into your laboratory.  With the flick of a switch there is a bright flash of light, a puff of smoke, and there he is standing in front of you.

You quickly exclaim, “Mr. Madison!  I know that this must be confusing to you, but we are in dire need of your assistance!”  You then begin to explain to him the raging constitutional debates over gun control, the Supreme Court’s ruling in District of Columbia v. Heller, the radical advances in firearms technology over the past two centuries, and the problem of mass-shootings.  As you go on a look of absolute horror grows on his face.  You finally ask the question that everyone wants to know, “What does the Second Amendment mean, and what types of gun control are allowed?!”

Madison’s response, however, is highly disappointing.  “What on earth are those monstrosities out there?” he asks and points out the window at the nearby Interstate.

You chuckle and explain, “Oh, those are just cars and trucks.  We use them for transportation, and they have completely replaced horses, carts, and carriages.  I guess it is kind of a big deal, but what we really need is for you to focus on the gun control question.”

“But what would happen,” he retorts, “if one of those things hit someone?”

“Well, they would almost certainly suffer a serious injury, and there is a good chance they could die.  It happens all the time.”

“ALL THE TIME!  How many people do you allow to die because of these things?”  You grumble a little bit about how he should really focus on the important gun control issue, but to placate his curiosity you show him the CDC report on U.S. mortality rates.  To his horror, Madison finds out that 37,757 Americans were killed by cars in 2015, and that traffic accidents are the leading cause of death for those under 25.

As Madison shakes his head in disbelief you casually mention, “Yeah, on top of the traffic deaths, cars also put out a lot of air pollution and are contributing to changing the entire Earth’s climate.”

With a grim resolve, Madison declares that he is going to do something about the horrifying status quo.  Interestingly enough, while he is utterly unable to adjust to the existence of automobiles, he is completely unfazed by the Internet, and takes to social media like a fish to water.  After quickly skimming the Wikipedia page on cars and binge watching the entire Fast & Furious franchise, he takes to Twitter to demand action.

@RealJamesMadison:  How can we be so callous about the blood drenching our streets!  We need commonsense car laws now!

You think to yourself, “Uh Oh.  This can’t be good.”

@RealJamesMadison:  The speeds at which people drive are insane!  All automatic transmissions should be banned.  If someone is in too much of a rush to shift their own gears how can we expect them to drive safely?

@RealJamesMadison:  Air pollution is the worst!  A catalytic converter should be mandatory on all new electric cars!

@RealJamesMadison:  Why are we the only country in the world where drunk drivers regularly kill people on the streets.  We must ban drunk driving now!

@RealJamesMadison:  There is no reason why civilians need racing cars, they should be outlawed.

When someone responded to his tweet asking what he meant by “racing cars” he responds, “You know, fast cars designed for racing, they have things like racing stripes, spoilers, and are powered by rockets that burn rice.”

At this point you decide that things have gone too far, and you must intervene.  “Look, James, I know that this is all new and shocking to you, but the fact of the matter is that most Americans have simply accepted the enormous danger associated with automobiles.  And while the deaths connected to cars are tragic, we simply are not willing or able to live in a world without them.

“But maybe you are right that we have become far too callous about traffic deaths.  Maybe something is very wrong with our society when our typical reaction to a traffic accident is to groan and worry about how it will slow down our daily commute.  There probably are things that we can do to help lower the ghastly body count.

“But you must understand that what you are doing is not helping.  You are making an ass of yourself.  Your ignorance about the most basic facts of how cars function and existing traffic laws is evident to everyone but yourself.  There is nothing commonsense about what you are proposing.  Automatic transmissions have nothing to do with the speed people drive, a catalytic converter on an electric car is preposterous since an electric car does not emit pollutants, drunk driving – which occurs all around the world – is already a crime in every state of the Union, and I don’t even know how to begin explaining to you what is wrong with your so-called ‘racing car’ ban.

“I get that you are passionate about this, but why don’t you take a break from Twitter and I’ll take you for a spin in my car.  We can sign you up for driving lessons, and we can find you some serious research about traffic fatalities and what can be done to help lower the risk of traffic accidents.”

Madison turns back to his Twitter account.

@RealJamesMadison:  I am sick of hearing about your “thoughts and prayers.”  We must do something NOW!

At this point you give up all hope and you walk back to your time machine, flip the switch, and send the Father of the Constitution back from whence he came.

If you have managed to suffer through my bizarre story about a time traveling, tweeting James Madison, you almost certainly know that my story is not about traffic fatalities.  It is about gun control, or more precisely, talking about gun control.

There are few things that will drive a gun rights advocate crazier than the incoherent things that gun control advocates say about guns.  Failing to understand basic firearms terminology like the difference between automatics and semi-automatics.  Talking pure gibberish such as “multi-automatic round weapons.”  Demanding the ban of a barrel shroud when you have no idea what a barrel shroud is.  Vilifying a nebulous, ill-defined, and ever-changing class of weapons as “assault weapons.”  The list goes on.

Gun rights advocates typically respond to these inaccurate, ignorant, or nonsensical statements with a mix of anger, mockery, and occasionally a half-hearted attempt to explain the error.  The Washington Post recently published an op-ed by Adam Weinstein in which he coins the phrase “gunsplaining” to describe this response.  In Weinstein’s view, gun control advocates are constantly beset by “Second Amendment enthusiasts who often diminish, or outright dismiss their views if they use imprecise firearms terminology” and are “harangued with the pedantry of the more-credible-than-thou firearms owner, admonished that [their] inferior knowledge of guns and their nomenclature puts and asterisk next to [their] opinion on gun control.”

While Weinstein acknowledges that gun control advocates are often ignorant, if not downright dishonest, in their calls for new gun laws, he insists that “[g]unsplaining, though, is always done in bad faith.  Like mansplaining, it’s less about adding to the discourse than smothering it.”  As he sees it, gun owners need to show endless patience with the willful ignorance of gun control advocates, and any attempt to point out that ignorance is nothing more than an attempt to shame the opposing side into silence.

Imagine, however, if we were discussing a different right.  A right cherished by those on the left and vilified by the right: abortion.  Pro-choice advocates constantly portray pro-lifers as being anti-science, religious zealots who don’t even understand basic biology.  Does anyone remember Todd Akin’s 2012 campaign for the Senate?  Akin, a Republican member of the House was running for Missouri’s Senate seat.  As a long-time pro-lifer Akin was asked if he thought abortions should be allowed in cases of rape, and he stated that “from what I understand from doctors, that’s really rare.  If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

Akin was ruthlessly pilloried by the left over this comment, the entire Republican establishment denounced him and then ran for the hills, and he ended up losing a race he should have easily won.  The pro-choice crowd ruthlessly mocked Akin’s comment.  It was a basic and easily verifiable medical fact that Akin was incorrect.  It was the kind of statement that you might expect in a junior high sex-ed class, but you would be shocked to hear it from an adult, and horrified to hear it from a member of Congress.

Was this “abortionsplaining”?  Was Akin just a hapless soul who made a harmless mistake and was then “harangued with the pedantry of the more-credible-than-thou [abortion supporter], admonished that [his] inferior knowledge of [pregnancy and its] nomenclature puts an asterisk next to [his] opinion on [abortion]”?  No!  Akin was a member of Congress, an aspiring Senator, who voted for laws that would bring the sword of the state down upon those who preformed and received abortions.  He should have known better.  It was his duty to know better.

I am a staunch pro-lifer, and I am glad Akin lost in disgrace.  The last thing the pro-life movement needs is some wacky Senator who makes blatantly false statements about the facts of pregnancy.  It is an embarrassment that does far more harm than good.

When you want to restrict another citizen’s freedom, and then employ nonsensical arguments to support your position, your fellow citizens are not going to respond well.  They will become defensive, fearful, dismissive, and angry because you have proven that you don’t have any rational reason to restrict their freedom.  You are simply responding out of an irrational, gut-level hatred, and irrational, gut-level hatred is a terrifying force.  This is true about abortion, it is true about gun rights, and it is true about any other proposal to ban or regulate something.

Weinstein acknowledges that, “In this kind of war over words, both sides probably need to give a little.”  But he then goes on to say that, “the pro-gun side needs to give a lot more — not just because it’s been disingenuously gunsplaining to shut down discussions and close minds for years — but because the onus should be on those citizens who own the weapons technology, and purport to understand it, to share that understanding with the skeptical and less-informed.”  This is exactly backwards.  We live in a free society, and the onus is never on the citizen to explain or justify his own freedom.  Instead the onus is on those who wish to restrict the freedom their fellow citizens to familiarize themselves with basic facts, articulate coherent arguments, and draft laws that will actually address the alleged problem.

I will close by conceding that it is rarely productive to respond to the ignorance of your fellow citizens with mockery or anger.  We would all be better off if we responded with a genuine attempt to educate each other.  I tend to draw the line, however, with public officials.  When those who are trusted with the power of government attempt to criminalize something that they are woefully ignorant about, the proper response is indeed anger and ridicule.  It is their duty to educate themselves on such matters.  They owe us that much.

It was 2004 and 19-year-old Jeff was a sophomore at Lehigh University, a private school in Bethlehem, PA.  Back then I was still a loyal Republican and an active member of the College Republicans.  The Lehigh College Republicans had a long running grievance with the University over the way the limited amount of funds for speakers was doled out to campus organizations.  Without getting too into the weeds, the result was that the University devoted drastically more funding to speakers on the left than to speakers on the right.  Of course, Lehigh is a private institution and can spend its money however it wants, but we College Republicans felt that the situation was unfair and contrary to the University’s purpose of promoting academic discourse and a free flow of ideas.

This long-simmering dispute boiled over when the University announced that it had invited Michael Moore, the director of the dubious “documentaries” Bowling for Columbine and Fahrenheit 9/11, to speak at Lehigh four days before the 2004 Presidential election.  While the University never disclosed how much they were paying Moore to speak, his standard honorarium at the time was $60,000.  By contrast, the most that the University had ever agreed to pay as an honorarium for a speaker brought by the College Republicans was roughly $5,000.

We brought several objections and requests, all of which were blithely cast aside by university officials:

College Republicans:  It is unfair to pay so much to bring a left-wing speaker like Moore while spending so little on right-wing speakers!

University:  Nonsense!  Michael Moore is not a “left-wing speaker.”  He is a non-partisan documentarian.

College Republicans:  His “documentaries” are propaganda.  You are basically paying him to throw a political rally for John Kerry four days before the Presidential election.

University:  While he intends to encourage students to vote, there is no reason to believe that he will favor Kerry over Bush.

(Several seconds of stunned silence)

College Republicans:  If you are going to spend that money on a raving leftist, at least bring someone who has an ounce of intellectual credibility?

University:  Intellectual credibility?  Who cares!  He is popular and will fill seats.

College Republicans:  Will you spend an equal amount (or any amount) to bring a right-wing speaker to act as a counterbalance against Moore?

University:  Are you kidding me?  We just spent our entire speaker budget on Moore.  There is absolutely no way that we can pay for another speaker.

College Republicans:  Wait!  We found a speaker who is willing to come for free.  Will you require Moore to debate him as a term of the contract?

University:  Again, are you kidding me?  This is Michael Moore!  The Oscar winner.  We have absolutely no bargaining power with him.  He gets what he wants, and he doesn’t want to debate.

College Republicans:  Will there at least be an open Q & A time?

University:  Seriously?  Stop wasting our time.  Moore will only accept pre-screened questions from friendly student organizations.

College Republicans:  Is there anything at all that you can do to make this a more balanced event?

University:  Look, if it will shut you up we will allow you to set up a booth in the lobby of the arena, that way everyone who goes to see him will have to walk by your booth.

Thus it was that on the night Michael Moore came to Lehigh I found myself manning a booth in Stabler Arena with one other College Republican.  We didn’t really have any experience with protesting or activism.  The best idea we could come up with was to hand out literature from the Bush/Cheney campaign and fliers listing the plethora of factual inaccuracies in Moore’s “documentaries.”  Looking back on it, I have no idea what we thought we would accomplish, but we felt like we had to do something, and this was something.

As the hour approached attendees began to file into the lobby, walk past our booth, and enter the arena.  We got a lot of dirty looks, plus the occasional snide remark.  Some people approached the booth, perused our literature, and engaged in debate that was at least tolerably civil.  A few brave souls gave us a thumbs up or word of encouragement.  The vast majority of attendees, however, were content to dismiss us as misguided, yet harmless, fools and simply ignored us.

Moore’s speech turned out to be exactly what we said it would be: a Bush bashing Kerry/Edwards campaign rally that ended with Moore leading the crowd in a rousing (if unimaginative) chant of “Vote Kerry!  Vote Kerry!  Vote Kerry!”  As the crowd surged out of the arena they were once again forced to walk by our booth: they were not happy to see us.  At first they were just shouting at us in righteous anger from a short distance, but as the crowd pressed in around us they were soon screaming right into our faces.  Not content with words, they loosed their fury upon our booth, scattering our literature on the floor, tearing up our signs and trying to run off with whatever they couldn’t destroy.  Then the barrage of bottles flew our way.  At this point the campus police moved in, formed a protective circle around us, and dispersed the crowd.

What still shocks me to this day was the speed at which the situation deteriorated.  I guess that 30 seconds, a minute tops, passed between when the crowd began exiting the arena and when the police surrounded us.  Based on the rate that things were going, I have no doubt that if the police hadn’t intervened an all-out melee would have erupted within moments.  Ok, fine!  Not an all-out melee, but a totally one-sided beat-down of myself and my compatriot.  I can’t say I was scared, I was in too much of a state of shock and disbelief for fear to register.

For you see, I believed in free speech.  I did not just support free speech as a matter of policy or Constitutional law, I believed in it.  I believed that free speech was natural, that it was universally understood and accepted, and that every American embraced the tenants of free speech as their birthright.  While I knew that there were debates about the outer limits of free speech – Nazis marching in Jewish neighborhoods, nude Shakespeare in the park, etc. – we weren’t doing anything controversial like that.  What could be less revolutionary than advocating the reelection of the sitting president?  I literally could not fathom a scenario where my fellow Americans would use violence to silence my political speech.  Even with a line of cops surrounding me I could scarcely believe it.

I must confess that my story is pretty tame when compared to the accounts you hear today about violence on campus.  Some torn up signs, a few thrown bottles, two students narrowly avoiding an ass kicking – most universities today would count that as a success.  Surely there is no sophomore in the nation today who is sophomoric enough to believe that their speech could never be met with violence.  Tame though this experience may be, it was one of the most formative political events in my life.

Prior to this I had taken for granted not just that individual rights ought to be respect, I took for granted that individual rights were respected.  That night I learned that individual rights are never to be taken for granted.  For the first time I began to understand the saying that “the price of liberty is eternal vigilance.”

Unfortunately, for quite some time I applied this lesson in a purely partisan manner.  We virtuous Republicans had to vigilantly guard our rights from the predation of those dastardly Democrats.  Those Democrats, who, despite all their bluster about civil liberties, will gladly censor the speech of Republicans when given a chance.  Those Democrats, with their desire to take away our gun rights.  Those Democrats, who want to micromanage every aspect of our lives with an all-encompassing, all-powerful nanny state.

Over time, however, I became increasingly disenchanted with the Republican Party and the conservative movement.  I began to see the extent to which my former allies were a threat to individual rights.  Republicans scoffed at concerns about excessive government surveillance in the War on Terror.  Republicans derided “activist” judges who took the rights of criminal defendants seriously (unless that judge happened to be named Scalia).  Christian Republicans constantly hacked away at the First Amendment, hoping to manipulate the levers of government power to bring about their vision of Christ’s Kingdom.

Eventually, I did the hardest thing of all.  I looked in the mirror and saw the ways that I was a threat to individual rights.  I saw that I wasn’t quite so innocent in the whole Michael Moore brouhaha.  Perhaps I wasn’t just upset about a funding disparity for campus speakers.  A part of me just didn’t think Moore should be allowed to speak.  I may have been acting out of a fear that he might actually convince others to think and vote in a manner that displeased me.  Maybe I had been far too quick to dismiss complaints from minorities about racial profiling and biased police tactics.  Perhaps I had supported the indefinite detention and “enhanced interrogation” of enemy combatants at Guantanamo Bay because a part of me simply hated Islamic terrorists and wanted to see them suffer.

The reality, I came to see, is that respect for individual rights is not natural.  It is natural to only care about yourself, your friends, and your allies.  It is easy to use and abuse others for your own benefit.  It is normal to want to make others believe what you believe and act as you act.  It is human nature to hate and oppress your enemies.  None of us are disposed to respect the rights of those who displease us.  We are all inclined to believe that rights are only worth respecting when they lead to a result that we like.

Liberty requires eternal vigilance.  But not just vigilance against our enemies.  Not just vigilance on behalf of those individuals and those rights that we like.  Liberty requires vigilance against our own worst tendencies and against the oppressive nature of our friends and allies.