Moderates are vilified, even in mainstream political discussions, for contributing to any number of social ills, simply by touting principles such as open-mindedness and civil discourse. Too many see important issues as involving only one side. They take the unhelpful (and logically fallacious) view that unless you’re fully supporting a cause, you are undermining the cause. Just this week, my signing up for an email list that advocates for immigrants’ rights directed me to a fundraiser denouncing moderates for their willingness to “listen to both sides.” Two other links sent to me by friends this week – one on the hate crime charges against the man who yelled at a woman for wearing a T-shirt depicting the Puerto Rican flag, and one on the accusations against author Junot Diaz – are good opportunities to reflect on how ever-vanishing moderates can help save our political discourse and culture.
The robust protection of our constitutional rights depends on public perception that the Supreme Court is not a nakedly political institution. Unfortunately, this perception is being tested. Take this (satirical) quiz to find out how you are contributing to the demise of our Constitution.
A strong form of legal realism, or the view that judges analyze and interpret the law to achieve the policy results they want, can be a self-fulfilling prophesy. Believing that judges disingenuously use the law for their own political aims makes people support judges who disingenuously use the law for political aims with which they agree. When it comes to constitutional interpretation, principled people can easily become partisans if they believe that their political opponents are using the Constitution in a partisan way. A vicious cycle ensues. The perception that the Constitution has been captured by the left (say, the Warren Court) leads the right to want to interpret the Constitution in a partisan way (say, the Burger Court), causing the left to perceive this politicization and want to capture the Supreme Court.
This cycle is especially corrosive in the First Amendment arena. The vitality of the First Amendment requires judges to create standards for First Amendment protection that are independent of speech’s viewpoint. However, if the First Amendment is either contracted or expanded in a partisan way, to achieve other policy goals (say, social justice or the dismantling of unions), First Amendment cynicism threatens our most uniquely American right. If the First Amendment is read too narrowly, we lose critical free speech rights. However, if the First Amendment is read too broadly – to invalidate laws that don’t actually implicate speech — we lose respect for the Amendment’s guarantees. This lack of respect, or First Amendment cynicism, ultimately threatens our speech rights as well.
When even the American Civil Liberties Union has retreated from its principled defense of First Amendment protection, the soul of the First Amendment is in jeopardy. Below are some reasons for our First Amendment cynicism and some thoughts on how to reinvigorate rule of law values.