...is perhaps the single most damning indictment of the utility of written Constitutions as a protector of individual rights.

R.C., that seems a bit over-the-top. The guarantee of free speech by the US Constitution's First Admendment means that, in America, free speech is the "default setting". Controls on speech are relatively few, and these typically are the subject of considerable legal scrutiny, as we're seeing with McCain-Feingold.

Without the presumption of free speech, there's every reason to believe Americans would enjoy fewer individual liberties than they do at present.

The only thing wrong with the written Constitution of the United States of America is that it's interpreted by a Supreme Court packed with activist judges. These judges prefer to create their own, socially "progressive", version of the Constitution.

To bad they're forgetting that, in a previous century, activist judges also approved Dred Scott and Jim Crow. :/

What we need is some good old fashioned judicial impeachments.

ed

I recall some self-important Senator during the campaign finance debates actually state that there was no speech problem with the bill because, for example, the microphone he was using wasn't speech per se.

I wish someone had unplggued his microphone and caught the reaction on C-SPAN.

George, my point is that if there is one thing the US Constitution is supposed to protect, it is free speech, and if there is one kind of free speech that is supposed to be protected, it is political speech about candidates.

It is something worse than ironic, then, that the most heavily regulated speech in America is precisely the speech that is supposed to be most free of regulation. If the Consitution cannot protect our political speech, then just what can it be relied upon to protect?

Robert:

You're last sentence in your post is not the first time I've heard this argument. Perry and many "paleolibertarians," whatever that means, have made similar arguments. What I find missing, however, is a viable alternative. If a written Constitution does not adequately protect individual rights, then what will? Which institutions would work? Although I see why voluntary associations would be ideal, I still can't see in my mind's eye how associations of such associations can always prevent strong coercive entities occasionally terrorizing a given populace. Or is the word "guarantee" too strong for this question? I would appreciate your, and any other Samizdata's, throughts. Thanks.

Robert,

I must add my support to Russ Lemley. I am open to argument, but what argument do you make for a viable alternative to a written constitution?

I too am frustrated with various court decisions, in the US and elsewhere, decisions that go plainly against the proven principle of free speech. The justifications for these decisions grow increasingly convoluted, as they must.

As an alternative, are there structural safeguards that could instead be adopted? For example - and I am admittedly winging it here - could the Congress/Senate/Parliament set aside or overturn a Court decision, say for a period of 5 years max, which must be continually renewed at least until a subsequent court overturns it (or not).

Or could the C/S/P have the right to turf up to 2 judges in a 5 year span, by majority (or perhaps 2/3) vote?

You get the idea. Everyone else in a proper political system must respect their bosses, much as the politicians must repect (ok, in practice they denigrate but fear) the voters.

Should judges be wholly exempt from feedback? Long-term? We would not want them subject to contsant daily pressure, but can we keep them in line otherwise?

Or perhaps we should just say to hell with it and go for judicial term limits as a control/sanity mechanism?

Any of the above strike me as superior to abandoning written and amendable constitutions, which I consider the basis of the Rule of Law.

I am a libertarian by nature, but recognize that humans _like_ having leaders, and so Limited Government, structurally restricted, is probably the best practical solution.

My own conceptual ideal would be a government around 5% the size and power of what's typical today. And I see self-important judges as the primary reason we can't achieve that, not written constitutions.

Your thoughts?

"George, my point is that if there is one thing the US Constitution is supposed to protect, it is free speech, and if there is one kind of free speech that is supposed to be protected, it is political speech about candidates."

I suspect the court interpretation is that political contributions are not speech, therefore they are not protected by the first amendment.

In order for contributions to be given 1st amendment defence, one would have to give the same defence to *anything* which could possibly improve someone's ability to speak. So it would become illegal to place limits on any publishing material (so tariffs on computers, pens, paper, etc would be illegal)

Obviously restricting contributions has a very important impact on candidates ability to pay for advertising space for their speech, but strictly speaking it does not prevent them "speaking" per se. Mr Dean is still perfectly able and entitled to say whatever he pleases once he runs out of campaign money. In the same way, import duties and tariffs on computers do restrict citizens ability to acquire the means of "speaking" more effectively, but they do not inhibit the right per se.

Now obviously that logic is debatable, but one needs to debate it, not just assert that it is wrong as the original poster does. I certainly don't see it is a de facto proof of the uselessness of constitutions. The phrase "stretching a point" comes to mind.

Don't get me wrong. I think a written constitution is a fine thing, and much better than the alternatives. It is certainly not a sufficient condition for liberty, and is probably not even a necessary condition for liberty. It is, however, a very useful tool. I was razzing Perry about Blair rewriting the unwritten British constitution at will, and pointing out that it is (still) inconceivable that the US would surrender sovereignty in the way that England likely will, in no small part due to the written US Constitution.

Constitutions are not self-enforcing, though. Placed in a social and institutional context that is hostile to liberty, though, even the best written consitution will prove to be a weak reed. It pains me to say that, but the past 70 years of American history bear it out. To my mind, the most vivid illustration of the impotence of written constitutions is the regulation of political financing in the US.

Nanook, your thoughts on judicial reform are very interesting, and strike me as potentially productive.

Cobden, I am aware of the sophistry put forward by the proponents of regulations of campaign finance and speech. The kindest thing I can think of to say about the purported distinction between speaking personally and paying for distribution of your speech is that it is a distinction without a difference.

Speech (including the spoken and written word) that reaches an audience larger than than a few hundred (those within earshot) requires resources to be distributed (pen, ink, electricity, phones, various bits of gear (including the computer you are looking at right now), access to valuable airwaves, etc. etc.). The right to use of resources to distribute your speech is absolutely integral to a right of free speech, expression, etc. Otherwise, it becomes a right to converse with those nearby, not a right to free speech as anyone understands the term.

Stating that the government can deny you resources to distribute your speech is not different than stating the the government can restrict your speech to those within earshot. Campaign finance regulation is nothing less than the government denying candidates and the supporters the resources to distribute their speech.

One other value of a written constitution, whether it is ignored or not, is that it is largely immune to changes in memory that take place in the mass mind. Even if the interpretations are as absurd as they now frequently are, the writing remains constant. Without that, how would you or anyone have a basis for saying the interpretation is ridiculous.

As an example of the vulnerability to change under which an unwrittten concept suffers, consider the idea of 'The American Dream'. It used to refer to a person becoming his own boss - beholden to no one else, usually by farming or by starting a business.

Nowadays it means having a good corporate job which will allow one to qualify for a mortgage on an expensive tract house.

And the real estate industry has made sure that most people only know the latter meaning.