The Constitution is a legal document that structures government and protects rights. However, it is sometimes forgotten that it is also a statement of values and principles on which the structure of government and the protection of rights are based.
These values and principles are not laws, but they may suggest non-legal obligations that the government owes to its citizens or that citizens owe to each other.
Sometimes the obligation is stated explicitly as the basis for the protection of a right. For example, a few months ago a racist killer influenced by white supremacist ideology and the so-called “replacement theory” massacred black Americans in a supermarket in Buffalo, NY We know from bitter experience that the white supremacy and replacement theory lead to violence and murder. We know it. Yet our constitutional system prohibits the government from suppressing such pernicious speech.
The First Amendment generally prevents the government from prohibiting speech that might incite people to commit crimes, even horrific crimes like the Buffalo Massacre. As the Supreme Court made clear in the landmark case of Brandenburg v. Ohio, this type of speech, called incitement, can only be prohibited if it leads to imminent violence or illegal behavior. This is a fundamental rule of the First Amendment today. The speech that warped the mind of the murderer in Buffalo cannot pass this incitement test because it did not immediately lead to violence.
It is important to understand the reasoning behind this sense of incitement that protects such diabolical talk. The principle underlying the Brandenburg rule imposes an implicit obligation on the state and the people, a principle which obliges us to counter bad advice as loudly and energetically as possible.
As Justices Holmes and Brandeis wrote in dissenting opinions that ultimately led to the Brandenburg decision, dangerous speech can only be suppressed by the government if the violence and other unlawful behavior it incites is imminent. If there is time to counter and refute bad advice before it does harm, the constitutionally appropriate remedy for bad speech is good speech — not the banning of speech.
Thus, the foundation of this key free speech doctrine is grounded in the expectation that good people will not remain silent when confronted with evil speech.
It relies on the willingness of the right people to speak up when it’s time to do so and to counter bad advice to reduce the likelihood that bad speech will lead to illegal acts or violence.
If good people are silent, bad words cannot be effectively refuted.
Our doctrine of free speech in a very real sense imposes a constitutional obligation on good people to speak up.
And that obligation falls with particular weight on those of us who can speak the loudest and be heard by the greatest number. Government officials, among others, fall into this category of speakers. Their official positions give them a microphone that extends the range of their voice. The First Amendment doctrine of incitement prevents officials from silencing bad ideas — but the reasoning behind this doctrine requires them to speak out loud and clear against bad words.
Other private speakers aloud – such as media and clergy – are also required. And the voice of the average citizen, joining others, must also be heard.
Consider another principle underlying accepted constitutional law. The Fifth Amendment (made applicable to states by the Fourteenth Amendment) explicitly requires the government to pay just compensation to the owner when it takes private property. But what justifies this compensatory requirement? The Supreme Court in Armstrong v. United States explained that the purpose of this provision was “to prevent the government from obliging certain individuals to bear public burdens which, in fairness and justice, should be borne by the public as a whole.”
This principle goes beyond compensating landowners for revenue. It supports an implicit obligation to offset—or at least mitigate—costs incurred when the state promotes the public good in a way that disproportionately burdens individuals or a small group. Let’s take a few examples. The government often permits religious exercise either as a result of constitutional mandates or as a discretionary political act. Although the protection of religious practice is particularly valuable for people whose religious practices are burdened, a strong argument recognizes that religious freedom is a public good. Our society at large benefits significantly from our commitment to religious freedom.
Sometimes, however, religious accommodation imposes costs on identifiable third parties. In Burwell v. Hobby Lobby, a major issue was the cost to female employees who would lose valuable insurance coverage for medical contraceptives if employers were religiously exempt from regulations requiring them to provide such health insurance coverage to their employees. If, as I suggest, religious freedom is a public good, a theory of constitutional obligation would support government (the public at large) bearing the cost of such coverage for female employees who are denied health coverage. insurance to protect the religious freedom of their employers. .
Or think of the baker who, for religious reasons, will not create a cake to celebrate the marriage of a same-sex couple. If we exempt the baker from the requirements of anti-discrimination laws in the name of religious freedom, does the state have an obligation to alleviate the cost to victims of the baker’s discrimination? In this situation, monetary or material compensation may not be possible. But the government may have other ways to ease the burden that same-sex couples will face. Perhaps the government could make available on websites a list of area wedding cake bakers who would welcome patronage from same-sex couples.
A final example involves state abortion laws, which require pregnant women to carry a fetus to term and at birth. Here, because the woman wants to terminate her pregnancy, she is not a private beneficiary of state law. The state believes that by prohibiting abortion, it promotes the public good. Clearly, however, this law imposes very heavy burdens on women, including physical, psychological and economic costs. The state and the public will not be able to come close to sharing all of these costs. But it can do some things. For example, in the case of a fetus that will be born with seriously debilitating conditions, the state could assume responsibility for providing high quality medical care, assistance and support to these children after birth.
Constitutional obligations, although not laws, flow from constitutional principles. They have many virtues, not the least of which is that they take us away – perhaps slightly but to some extent – from constitutional controversies that are nothing but a zero-sum game.
Alan Brownstein is professor of law emeritus at the Davis School of Law at the University of California. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law topics. He is a Fellow of the American Law Institute and served on the legal committee of the Northern California American Civil Liberties Union. He holds a BA from Antioch College and a JD (magna cum laude) from Harvard Law School, where he served as editor of the Harvard Law Review.