Sunday, December 19, 2021

On Franks on the First Two Amendments

 The Boston Globe has a feature, Editing the Constitution, in which they asked "legal experts, advocates, journalists, and members of the next generation" what changes they would make to the Constitution; the results are about as sub-intelligent as you would expect; the least bad ones are the extremely vague ones which don't actually give us any particulars about how the Constitution would be modified and the worst ones would move the Constitution in a totalitarian direction. Of the latter kind is Mary Anne Franks's "Redo the First Two Amendments".

The fundamental problem with Franks's entire approach is a failure -- although one suspects it is in fact an obstinate refusal -- to recognize that the first two amendments are protections for powers that pre-exist the Constitution itself, and were provably put forward precisely to make sure that the rest of the Constitution was not interpreted in a way that would harm them. Thus, for instance, Franks claims, "neither of the two amendments is a model of clarity and precision"; this is not in fact true, but even if it were, it's clear from what she says that when she says 'precision' what she really means is 'clear limitation'. However, the first two amendments are clearly written so as not to introduce any limitations -- I mean, both literally and in plain terms forbid limitations of the previously existing powers of the people, and as clearly as one could possibly wish. This is, of course, Franks's real problem: that the two amendments are in fact quite explicitly clear that you can't do what Franks really wants people to do.

We see this quite clearly in Franks's next criticism: "More important, both are deeply flawed in their respective conceptualizations of some of the most important rights of a democratic society: the freedom of expression and religion and the right of self-defense." I find this fascinating, because it shows that Franks's view is based on holding that the first two amendments got the rights wrong. The First Amendment does not exist to protect "freedom of expression" at all; freedom of expression is a later term that arose in a context of interpreting the amendment in a manner that the Founding Fathers in general probably would not have accepted. The Second Amendment does not exist to protect "the right of self-defense" at all; it explicitly exists to protect the right to keep and bear arms. This is because Franks, like many people, thinks that the rights worth protecting here are entirely concerned with protecting individuals, and therefore thinks the way in which they are formulated here are odd, which they would be -- if the purpose of these rights was wholly about individuals. But they are not. They are concerned with the fact that the rights involved are intrinsic to the fact that we constitute not just a mass of individuals but the People. They do of course provide protections to individuals -- you cannot protect the people while not protecting individual people. But all of the rights and freedoms mentioned are powers we have because we form the foundational community of our republic, the People, the very People mentioned in the preamble and explicitly mentioned in both of these amendments, a community which is prior to and more fundamental than literally every other institution or agency mentioned in the entire Constitution. How does the People form itself as a fundamental community rather than just a mass? By communication; therefore the freedom of speech and the freedom of press (which is not a freedom of journalism but a freedom to publish) are protected. And also by coming together in more explicit ways; therefore the free exercise of religion and the right to peaceable assembly and petition are protected. The Second Amendment likewise recognizes the militia powers of the People as necessary to securing a free State. Tampering with either of these two amendments puts in jeopardy any attempt to have a free society, because guaranteeing a free people -- not merely providing some protections to individuals -- is precisely their point.

Now Franks does, to her credit, recognize that current interpretation of these two amendments suffers from being excessively individualistic, but what she actually provides is an opposing, and even more restrictive, individualistic interpretation; or, to be put it in a crude slogan-ish form, for an interpretation that sees these amendments as providing rights only of individuals, she tries to substitute an interpretation that sees these amendments as providing rights only for individuals (note, for instance, her worry about individuals abusing these rights). But both of these are wrong. If you had to choose, the former is quite clearly superior to the latter, precisely for the reason that Franks rejects it, namely, that it allows less room for restriction and gerrymandering, but both are wrong. It is essential to the very premise of the Constitution that the People, as a free people capable of working together, are the foundation of everything else, and that all powers of government flow from the freedom of the People and therefore cannot curtail it and should not make arbitrary decisions about what it includes. If the People have no ability to form communities and associations and act in that form, the Constitution is illegitimate; if the People do not have the ability to act as a trained militia, a free state cannot be secured at all. States and governments can have no powers that are not merely particular orderings of powers already possessed by the People. The first two amendments force explicit recognition of this and accountability with respect to it.

Thus it is inevitable that when Franks actually proposes her re-writes, the result is to strip the People of some of their ability to act as a free people, and would clearly and obviously result in a people who are less free and more subject to the whims of policians. Her re-write of the First Amendment is as follows:

Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons. 

 Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.

Despite Franks's prior complaints, this is much less clear and precise than the First Amendment as it currently exists, and, what is more, much more individualistic in tone. And we see a proposal that would make for a much less free society. The First Amendment quite clearly prohibits any restriction of the freedom of the People on these matters; Franks's proposed rewrite allows for multiple ways in which governments can restrict the freedom of the people in ways that have no clear and well-defined limitation. (Who decides how to 'resolve' conflicts of rights? Who holds persons responsible 'for abuses'? Who provides the standard of consistency? Who defines what counts as equality and dignity for purposes of law? Who determines what counts as 'respecting' freedom of religion? People in control of the coercive powers of the state.) The First Amendment has no individualistic components at all, although the rights and freedoms it protects imply rights and freedoms for individuals. Franks explicitly ties all the rights to individuals. The First Amendment sees the People as coherent in itself, and therefore makes no provision for 'conflict' of rights and freedoms; Franks sees the People as something that must be given coherence by the state by 'resolving' its conflicts. The First Amendment protects the powers of the People to hold the government itself responsible; Franks only recognizes rights which the government can hold individuals responsible for using correctly, and thus no rights by which the People can hold the government responsible at all. The First Amendment is a guide for a free society; Franks's rewrite is a recipe for totalitarianism dressing itself up as liberalism.

The rewrite of the Second Amendment somehow manages to be even worse:

All people have the right to bodily autonomy consistent with the right of other people to the same, including the right to defend themselves against unlawful force and the right of self-determination in reproductive matters. The government shall take reasonable measures to protect the health and safety of the public as a whole.

Egad. The Second Amendment explicitly puts itself forward as protecting a right of the people that is a precondition for a free state; Franks actually makes it a blanket mandate for the government to do whatever it thinks reasonable (as a legal limitation, 'reasonable' in practical terms means: what the government can politically get away with) and to restrict the right of self-defense however it pleases (since the proposal only protects the right to defend oneself against unlawful force). I've mentioned before the phenomenon of my students, asked to propose a declaration of rights, trying to restrict the freedom of religion to exercise that no one prohibits by law, but Franks tops them entirely, by giving the people a right to defend themselves from being killed as long as no one makes it illegal for them to defend themselves. Franks attacks the Second Amendment as 'anachronistic', but somehow I don't think that requiring people to let themselves be shot by the police unless they first consult their lawyer as to whether the police are violating the letter of the law in doing so is exactly what we need in our present-day society. 

In a republic, the fundamental guideline for any revision of the Constitution must be this, that the revision makes society more free, not less, gives the people more power, not less, leaves the people subject to the judgments of politicians less, not more. Franks's proposal fails this test miserably at literally every single point. It refuses to recognize the foundational character of the People and it subjects rights to arbitrary interference. It doesn't even work by its own standards. Franks accuses the first two amendments of being unclear and imprecise; her proposals are less clear and less precise. Franks accuses the First Amendment of giving too much room for individualistic interpretation; her proposal requires even more rigorously individualistic interpretations. Franks accuses the Second Amendment of being "idiosyncratic and anachronistic". Her proposal is even more idiosyncratic, treating self-defense protections as primarily about abortion and government health and safety mandates. It is even more anachronistic, because the Second Amendment actually takes the trouble to tie itself to something that is not bound by time -- securing a free State -- whereas Franks's rewrite doesn't even fit the time in which she is proposing it. It's bizarre.