Re: So Unsophisticated, That First Amendment

by Mark Krikorian

As Andrew noted below, law professor Eric Posner has a new piece in Slate subtitled “The vile anti-Muslim video shows that the U.S. overvalues free speech”. I don’t know anything about Posner, though from Harvey Mansfield’s review of his recent book, Posner appears to be a post-constitutional caesarist, for want of a better word, an impression strengthened by his observation in the Slate piece that we are “paralyzed by constitutional symbolism” to the degree that we end up with “the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on speech whatsoever.”

But there was one thing in his piece that was a little different from much of the other anti–First Amendment commentary in the wake of the Arab riots:

We have to remember that our First Amendment values are not universal; they emerged contingently from our own political history, a set of cobbled-together compromises among political and ideological factions responding to localized events.

This is true, of course, but it applies very directly to another part of the First Amendment, the beginning, in fact: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religious freedom in this sense was certainly not what the Puritans had in mind — Congregationalism was the established church in Massachusetts until 1833. The same applied in a less thorough way with Anglicanism in the South. The reason everybody agreed to prohibiting the establishment of a national church was that no one could agree on which one — America’s Protestant Episcopal successor to the Church of England was the obvious candidate (and still sort of fills that role informally; see the Washington National Cathedral), but the Quakers and the various Calvinists and others sure weren’t going to go for that. So, the “cobbled-together compromise” “responding to localized events” was that no one got to be the national church, a principle which those states which still had established churches within their own boundaries adopted in short order.

Heck, the Magna Carta was a cobbled-together compromise responding to localized events. That’s how all “universal principles” come to be applied in the real world. So Posner appears to be arguing that all rights are contingent and can be restricted to serve U.S. foreign policy interests, or whatever interests the writer considers paramount.

Specifically, freedom of religion is, ahem, not a Muslim value — are we to curtail it if it can be justified by U.S. foreign-policy interests? (This is aside from Obama’s curtailments for domestic reasons.) This isn’t a fantasy: The United States is home to tens of thousands of Muslim-Background Believers, as the Evangelicals put it — i.e., converts to Christianity. Such conversion is a capital offense under Islamic law and it’s not at all inconceivable that Muslim mobs will riot when they learn that former Muslims are holding a convention in the United States (there was just such a conference in Texas in April and in Pennsylvania earlier this month, and no doubt many others). Will the Obama administration demand that such a conference, if it attracts the Eye of Sauron Islam, be shut down? If not, why not? To paraphrase Posner’s Slate article, don’t we need to realize that often freedom of religion must yield to other values and the need for order?

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