Sunday, February 7, 2016

Speaking of Equality -- Professor Leong Contributes to the Alternative Constitution Day Symposium

Speaking of Equality

Alternative Constitution Day provides an opportunity to reflect on the defects in the Constitution of 1789 as well as in the Bill of Rights ratified in 1791. Of course there is much to admire in our founding documents. But we cannot ignore the reality that the Constitution was drafted by wealthy white property-owning men who owned and in some instances raped slaves, and who would have thought laughable the notion that many of the contributors to this symposium could own property, vote, and teach in law schools. It should be surprising to no one that these men produced a document whose flaws, more than two centuries later, we continue to work to cure. More surprising is the notion that many people celebrate Constitution Day -- the federally-funded holiday in September -- so uncritically, or that so many are so willing to gloss over the defects in our founding document.

The thoughtful essays in this symposium capture many of the reasons that we need Alternative Constitution Day. Mine will raise one of the more prosaic: that a legal culture that uncritically reveres our founders sets itself up for doctrinal mistakes.

Consider, for example, the relationship between the First and the Fourteenth Amendments. The First Amendment was ratified in 1791; the Fourteenth not until 1868, as one of the Reconstruction-era civil rights amendments. Under ordinary principles of interpretation, the First Amendment should be read in tandem with the Fourteenth Amendment, and to the extent the two conflict, the Fourteenth -- ratified three-quarters of a century later -- should understood to correct the First.

Yet this is not the manner in which the Court has interpreted either the First or the Fourteenth Amendment. The equality interests at stake in cases involving cross-burning and other forms of hate speech, such as RAV v. St. Paul and Virginia v. Black, have scarcely received acknowledgement from the Court. Indeed, the majority opinion in R.A.V. and the opinion of the Court in Black do not even mention the notion of equality. The same is true of cases that implicate both speech and women's right to reproductive freedom. In McCullen v. Coakley, for instance, the Court by a vote of 9-0 invalidated buffer zones around abortion clinics -- an exceedingly minimal regulation of speech. Although such speech undoubtedly inhibits women's equality by inhibiting access to reproductive health care, the Court made no mention of the effect of speech in perpetuating inequality. The Court's jurisprudence therefore offers no opportunity to tie these rights to the equality guarantee of the Fourteenth Amendment. Without ever explicitly saying so, the Court has interpreted the First Amendment as though it is unmodified by the Fourteenth.

Most troubling is the hysterical reaction to even the most modest proposed restriction on speech as an "assault on our civil liberties." Commentators have recognized the Roberts Court as perhaps the most "pro-First Amendment" in history, yet free speech absolutists appear to believe that the very foundations of the First Amendment are perpetually endangered.

This is not to say that the Court should uphold bans on cross-burning or ordinances prescribing buffer zones. Rather, it is to say that in a world that took the Reconstruction-era amendments and their equality guarantees seriously, discussion of speech regulation would not be met with hysterical outcry or dire predictions about imminent fascism. We would recognize the value of expression not as an absolute one, but rather as one to be weighed against other interests such as equality, liberty, and dignity. And we would recognize the project of defining our various freedoms as an ongoing attempt to improve the laws that govern our society, just as the Reconstruction-era amendments improved upon the original Bill of Rights.

Nancy Leong, Associate Professor of Law, University of Denver Sturm College of Law

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