Recently, the New York Times printed an opinion piece by one of their reporters, Adam Liptak, focusing on the left and their growing discomfort with the freedoms contained in the First Amendment. The inescapable conclusion of his article was that a growing number of progressives see the First Amendment as being too flawed to be left alone and must be altered in some way.
In the article, Liptak quotes the left-wing Supreme Court Justice, Elena Kagan, that the right was “weaponizing the First Amendment.” The claim, ridiculous on its face, was in response to recent SCOTUS cases that have been ruled in favor of conservative appellants. One in particular dealt with crisis pregnancy centers claiming 1A protections from the state of California’s requirement that they provide their clients with information on how to obtain an abortion, a procedure antithetical to their organization’s purpose.
Further on, Liptak interviewed “First Amendment Lawyer” Floyd Abrams on the topic, and he described the change of heart that many on the left are having over first amendment issues, even as growing numbers on the right are embracing a more libertarian stance on the argument. Abrams commented:
‘Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.’
Over the course of his opinion piece, Liptak uses the words of others to suggest that there should be new limitations on freedom of speech, going so far as to imply that rulings in such cases (as the previous example) represent a tyranny of the judiciary over the will of the people. Curious. I wonder how loudly Kagan or the article’s author voiced their opposition to the over-turning of the people’s will when a federal judge threw-out California’s state marriage amendment, but I digress.
It is easy to appreciate the irony on display by the left souring on the First Amendment. In past, the left has always used that same liberty to advocate for just about everything they’ve stood for. However, success can change a person or even a political community, and the left has been very successful. From using government to enforce gay-marriage and abortion, to getting much of the tenets of Karl Marx enacted into the American system and as the default philosophy at American universities, no rational person could claim otherwise. And like a small startup company-turned-giant corporation, they are less preoccupied with the right to compete in an open market as they are in leveraging their influence to stifle competition and protect their gains.
There was a time when the states were not bound by the Bill of Rights, back when the Constitution and its first 10 amendments were only a limiting factor on the federal government. Under this arrangement, California would’ve been free to make many impositions on its citizen’s speech. After the passage of the Fourteenth Amendment, however, the U.S. Bill of Rights was interpreted as applicable to all the states. Again, this was fine with the left-of-center as long as it brought about what they wanted. Now that some of these court decisions are going against what the left would like to impose on the rest of the Union, they’d like to ditch the first amendment? Convenient.
In reality, the left’s growing disenchantment and abandoning of constitutional rights isn’t a case of a political movement changing their mind on a point of interest, but rather an example of a tool outliving its utility to the user. What Kagan and her comrades believe is that Americans should not be allowed disagree with progressive doctrine, at least openly. They may frame it somewhat more euphemistically, but that is essentially the truth of it.
Before we dismiss such beliefs as fringe, it’s important to point out that these views are regularly backed up by 50% or so of the voting public. Our political choices are largely seen as binary and it is always a minority that decides the agenda. Additionally, it should be noted, that though progressives are currently out of power… they will be coming back. Not yet, to be sure, but their return to power is inevitable. While it’s nice to think that the election of Trump represented a watershed moment in the Union, and that Republicans will have governing majorities from here on in, keep in mind that Obama’s acolytes believed similarly about their hold on power… and they were just as wrong.
Former U.S. Congressman from Texas and presidential candidate Ron Paul once said, “We don’t have a First Amendment so we can talk about the weather. We have the First Amendment so we can say very controversial things.” After all, mundane or popular speech doesn’t require protection, but rather the unpopular. But since the Constitution was handed over to the courts as final interpreter, 1A and the rest of our Liberties have been in danger. Freedom-loving Texans may celebrate a few victories where the court gets it mostly right (for a change), but they must remember that a favorable wind can easily give way to an ill-wind, and in a moment. If we are not willing to at some point live under the rules that an ascendant progressive body-politic of the near future will bring, we’d better be ready to reassert our rights in a revived Republic of Texas. In fact, the sooner we start governing ourselves, not content to wait for the bottom to first fall out, the better. For, at some point, we must recognize the mounting evidence that the disciples of freedom and the sons of tyranny cannot live together indefinitely… at least in peace. The kind of repression inherent in the ideas the left is likely to bring with their return won’t be conducive to social stability for a people used to freedom.