Even where a constitutional provision protects a liberty so vital as that of the press, Hamilton wrote in Federalist 84, “its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and the government.” Here, in the people’s understanding and embrace of their rights, and in their willingness to fight for them, Hamilton concluded, is “the only solid basis of all our rights.”
Madison thought that in times of crisis the Constitution could serve as a rallying point and as a platform for popular action to keep the government on its appointed — i.e., constitutional — course. In his first inaugural address, Jefferson said that the Constitution was “the text of civil instruction — the touchstone by which to try the services of those we trust.” In 1819 Chief Justice John Marshall stated that judicial “opinions should be written to be understood by the public.”
Judicial opinions today are too prolix and too technical for public consumption. They are written by specialists for specialists. They read like law-review articles. The substantive content of opinions concerning civil liberties unfolds in conscious opposition to what the people think; the leitmotif of civil-liberties jurisprudence is precisely protecting the unpopular, the dissenter, the pervert. The Court worries enough about its legitimacy to attempt to marry populism to its own anti-populism. The justices tell us stories about how they are our better selves or our constitutional conscience, or about how they really hanker for a constitutional conversation with us. All these shotgun weddings fail.
Where the people’s support is avidly sought (as the Founders thought it should be), judicial opinions are bound to be more muscular and principled; the pace of doctrinal development is almost sure to be slower, more organic; and the content of any constitutional innovations that happen to emerge is unlikely to be at war with the common morality.
Third: The modern understanding of liberty — as enunciated in the so-called “Mystery Passage” — is all sail and no anchor. It rests upon the value judgment that what makes a belief about life or the universe worthy of constitutional protection has nothing to do with the truth, validity, or soundness of that belief. All that counts is that the belief is acquired absolutely freely, that it is purely voluntarily held, and that it is (therefore) an exquisite expression of who someone — anyone — really, deeply is.
Now, voluntariness of acquisition is indeed integral to the value of holding some beliefs — those concerning religion are the prime example — but it is never all that counts. (False religious beliefs can lead people into lives of moral degradation.) And it is more often the case that the soundness of beliefs counts more than freedom of acquisition. This is true about moral beliefs as well as about scientific and other descriptive accounts of the way things are. Individual lives go better when people affirm, for example, the moral truth about human dignity and basic norms of morality such as the Golden Rule.
The Founders were guilty of no such evaluative error as the Mystery Passage implies. They held fast to the distinction between worthy and unworthy claims to possess an individual liberty, and one strict criterion was moral truth. Although they did not use this terminology, the Founders would have affirmed the proposition that one could not have a right, strictly speaking, to do a moral wrong, no matter how sincerely motivated the claimant might be. (They would say that these claims involved “licentiousness,” their marker for morally debauched acts.) The Founders understood that a moral consensus on matters pertaining to the political common good — human dignity, human equality, justice — was a great benefit to collective prosperity as well. And so they would have instantly seen how subversive it would be to drop morality into a centrifuge, as the Mystery Passage does.