So I think it’s time we raised the stakes. If the politicians want to get in on this game, they should to be held accountable, and we need an honest debate around the issues. And SOPA is just one of many. The internet is everywhere. Nearly every function of government — ranging from supporting the economy and education, to offering social services and fighting wars — either does already or will soon rely on the internet. So let’s talk about that. Clearly, honestly, and publicly.

So here’s my pitch: a #Gov20 Presidential Debate. Bring the Republican and Democrat candidates together to discuss what the internet means to government and society, and how their administration would leverage it. What makes this interesting to me is that the pressing questions aren’t strictly partisan; transparency is probably a bipartisan issue, and I’d imagine the Republicans might split on immigration & innovation, and the Democrats on, say, downsizing government through tech. Should be fun.

Realizing, as a somewhat reasonable person, that such a thing is unlikely (ok, very unlikely) to happen, I still figured that as an exercise it’d be fun to think of some questions. Here are a handful or so I thought of; share your ideas on the debate and for questions in the comments.

• Do you think the “Stop Online Piracy Act” will hinder innovation and creativity on the internet?
• The Obama Administration created two C-Level tech-focused position: CIO and CTO. Do you think those roles are necessary and would you keep them in your administration?
• We’ve seen that advances in modern technology have enabled companies in the private sector to grow and cut costs. How would you use technology to bring down the deficit?
• Why shouldn’t every document or record created by the government be immediately accessible online?
• In cities, throughout the country, local governments are turning the government as a service provider model on its head, and asking citizens to solve the local problems themselves. How would you apply this thinking to the federal government?
• What would you do to boost entreprenuership in this country? Would you change immigration laws? Provide government seed funding?
• Over 50 countries have joined the Open Government Partnership. Has it produced any real results and can/will it affect foreign policy?

I’ll add that there would be a real expressive value to a debate like this — probably more valuable than the discussion itself. This could serve as validation for the fundamental importance of the web and the role it’ll play in our society. These are exciting time we live in, where there’s tremendous innovation constantly in our lives, and there’s a real opportunity to leverage that in our governments — the institutions designed to serve us all. And strong support from our political leaders would hopefully push forward that process, raise public awareness, and validate the efforts by change-makers both inside government and out.

(Note: everything posted on this site is written in my personal capacity.)

As its cures sprung from itself, Tocqueville’s democracy, first, requires examination. His vocabulary in this area has been criticized. As Jack Lively concluded, “It has been pointed out many times how confused he was in the use of his basic concepts, democracy and equality.”[3] This confusion, though, can be both rationalized in a historical context and reconciled within the text itself. In Tocqueville’s time, according to Welch, democracy was seen primarily in the political sense—a form of government, a location of sovereignty, or the prioritization of the middle class. Tocqueville’s immediate forbearers—namely Guizot—saw democracy along this vein, but in a negative sense: as a corrupting and chaotic political system. Thus, Tocqueville’s intellectual background would have bent accordingly, but his prose refute this interpretation: “The more I advanced the study of American society, the more I perceived that this equality of condition is the fundamental fact from which all others seem to be derived, and the central point at which all my observations constantly terminated.” As such, we cannot exorcise democracy from its social or civil implications—or even equality at all—as Tocqueville perceived them as fundamentally linked. This corresponds with Tocqueville’s own historical views of the drive towards equality, which has birthed a new form of democracy.[4] Thus, we can accept Welch’s reconciliation of the term confusion:

“…he often uses equality of condition as a virtual synonym for democracy. More typically, however, his usage is a slightly broader one that includes in the term ‘democracy’ both equality of social condition… and the psychological tendencies that such equality naturally encourages… This broadened use—equality of condition plus the egalitarian passions and tastes for freedom to which it gives rise—is perhaps Tocqueville’s most characteristic meaning for the term ‘democracy.’”[5]

Welch’s juxtaposition of the “egalitarian passions” and the “tastes for freedom” frames the next relevant issue—that is, contrast between the drive toward equality and the appetite for liberty. The affection of equality is greater in democratic limes, as Tocqueville laments:

“I think that democratic communities have a natural taste for freedom; left to themselves, they will seek it, cherish it, and view and privation of it with regret. But for equality their passion is ardent, insatiable, incessant, invincible; they call for equality in freedom; and if they cannot obtain that, they still call for equality in slavery. They will endure poverty, servitude, barbarism, but they will not endure aristocracy.”[6]

His lamentation, coupled with his frequent concerns of despotism, solidifies his intellectual identity: he is a liberal. His particular conception of liberty is crucial to understanding his belief in the corrective affects of associations, as we will see.

“Freedom is, in truth, a sacred thing,” affirmed Tocqueville. This seems to contradict his seemingly deterministic view of view—the inevitable drive towards equality. Yet, he vigorously defended the role of human choice in shaping that march. To keep men from the captivity of despotism, he would argue, a choice was necessary, the choice between educating democracy and succumbing to it. He concludes, “…it depends on [the nation’s of our time] whether the principle of equality is to lead them to servitude or freedom, to knowledge of barbarism, to prosperity or wretchedness.”[7] In that, we see the crux of Tocqueville’s view of the relationship between history and liberty. If equality was the engine of history, then man would still meet juncture, demanding choices, and these choices would lead to either more liberty or less. In that, we can see the duality of his views of liberty: it is not simply about having a choice, but also choosing to have more choices. As a liberal, then, Tocqueville would seek to guard not only against the encroachment on liberty, but also the abdication of it.

Still, though, the foundations of Tocqueville’s liberalism require contextualization: why advocate freedom of choice altogether? He offers one explanation in a letter to Beaumont, “I have never been more profoundly convinced that [liberty] alone can give to human societies in general, and to the individuals who compose them in particular, all the prosperity and greatness which our species is capable.”[8] These observations match—or may even reflect—John Stuart Mill’s defense of liberty as a catalyst for human progress: as Lively explains, without freedom of thought and expression, without a wide area of free actions, there could be neither the development of individuality, the flowering of each individual’s unique personality, nor the intellectual progress that sprang from a diversity of values and class of opinions within a community.”[9] These arguments, though, fail to fully capture Tocqueville’s views. Furthermore, in Volume II, Tocqueville rails against unchecked individuality, as an atomizing and corrosive symptom of democracy, and this worry betrays his broader conception of liberty (and even his debt to Guizot). Consider again, the statement quoted in part earlier, “Freedom is a sacred thing. There is one thing else that better deserves the name: that is virtue. But then what is virtue if not the free choice of what is good.”[10] Liberty, thus, allows for individual virtue; it is not simply beneficial to society or civilization, but also to man—it constitutes moral terrain. When government forces action, even if moral, it appropriates that ground, dissolving virtue and, in effect, upending man’s morality. The same happen when man relinquishes his liberty; he has no footing to grasp virtue.

Tocqueville’s conception can then be seen as a virtuous liberty, and as either the ability or the desire to take moral actions waned, so did virtue. Thus, man must both will and have freedom; only then would he escape the slide toward despotism.

This tendency towards despotism thus constitutes the paramount evil of democracy—in both the social and political forms.

With equality of conditions, each man is free and able to get and do what he would like, free of classist restrictions. In that, Tocqueville argues, equality unleashes a dangerous passion: a passion for well-being, aroused to a more animated and acceptable position. Now that men can have anything, they become equal not only in their status but their desires: men do want everything. Complete satisfaction is unrealistic; thus a constant restlessness afflicts democratic society. This thirst for material prosperity turns man towards commerce and industry and, more importantly, onto his own affairs, his own interests, himself. Economic concerns, according to Tocqueville, then drown out political ones. Simply put, the opportunity cost of political participation would be too high.[11] The more subtle and more worrisome effect of materialism is the considered retreat from the political activity altogether—more worrisome as it not only rationalization political inaction but also political apathy. This is Tocqueville’s individualism, the slower but similarly corrosive cousin of egoism:

“Individualism is a novel expressions, to which a novel idea has given birth… Individualism is a mature and calm feeling, which disposes each member of the community to sever himself from the mass of his fellows and to draw apart with his family and friends, so that after he has thus formed a little circle of his own, he willingly a leaves society at large to itself.”

Individuals equally form society, so as they withdraw into isolation, not only is society torn asunder, but also a vacuum emerges. This precipitates further alienation and atomization, and the latter invites government to fill the void, which—as we’ll see—it is happy to.

The political nature of democracy play into this story as well, further sapping man of his capacity for independent action. The American system enshrined the majority as the source of legitimate governmental action. This preference, though, seeps throughout society, encouraged by equality of conditions. Whereas a few had power in an aristocracy, all do in a democracy. Each man then has power, but as such, none does. The independence of democratic men leaves them thinking they must know what’s best, but in the law, only the majority does. Thus, vocalizing dissent demonstrates a failure to appreciate or respect the majority’s authority, legal and moral. Thus, men succumb to conformity: if the majority is always rights, then I am always with the majority. They see now need to add their opinion; they merely follow the currents of the many. Thus a “courtier spirit”[12] inhabits the democracy, and in turn, the majority plays the part of the despot. Here again, the individual willingly gives up his ability to make one’s own choices, costing him the opportunity for moral action and meaningful freedom.

Materialism, individualism, and the majoritarian impulse leave democracies atomized and rife for despotism. The majority is eager to play the role of tyrant, but there remains one other force willing and able to ease man of his capacity for independent action: a centralizing government administration—that is, according to Welch, “the unnecessary expansion of political power into the regulation of ordinary affairs and the details of daily life.”[13] Tocqueville contends that there is a natural disposition in democracy towards strong central power, as the economic man wants stability and the independent man feels powerless.  The abdication to central administrative power seems like a good bargain: trade an increasingly burdensome liberty for peace of mind at no loss to equality.  Thus, the government, erected for he general welfare, effectually undermines the people’s ability to provide their own welfare, thus, as above, cutting in their capacity to take moral actions, to govern themselves.

Thus the arc from liberty to the complete loss of it comes complete: Equality of conditions bring men onto the same plane; materialism turns them into their own homes; individualism erects fences; the majority keeps each inside; and the state keeps them all comfortable. Men, no longer bothered by liberty, become equal slaves.

This nightmare is avoidable, argued Tocqueville. The engine of equality could run towards despotism, but it could also turn away. Democracy could maintain itself. His claims here was primarily built on observation—he saw it work—but also on analysis. In fact, the very same forces that led to an atomized, tyrannized society could lead to an interdependent, self-regulating one. The “taste for freedom” and the “egalitarian” passions encourage associational life, and through associations, citizens both use and defend their liberty.

This process, too, was the product of democracy itself, and Tocqueville’s logic is discernable. Equality of conditions leaves all men equal in their capacity, but in a sense completely powerless. This offends their somewhat independent spirit also precipitated by equality of conditions. Man, then, must find a mechanism to have power, to make influence—really, to indulge in his constructive liberty—or else he will recoil into this private life. Enter democratic associations. Ranging from small interest groups, to political parties, and even townships, associations carry the democratic concept to the grassroots.

Each type of association, though, has a particular way to neutralize the evils of democracy in different ways.

Free provincial institutions come first, accordingly, as they are, according to Tocqueville the natural product of equality—an immediate result of their perceived independence. He conjectures that with equality of conditions, there is a “natural bias towards free institutions.”[14] His reasons are fairly intuitive and two-fold: first, arrogantly, man, Tocqueville explains, “will contest conceive and most highly value that government whose head he has himself elected and whose administration he may control;”[15] second, self-interested, men’s’ “…chief business is to secure for themselves a government which will allow them to acquire the things they covet and which will not debar them from the peaceful enjoyment of those possessions which they have already acquired.”[16] In addition, necessity of collective action—say to build a road—would require entry into public affairs. Thus, man will attend to the free institutions, as they are now his and his interests are at stake.

These forces might seem to merely enhance individualism and materialism, but the nature of American free institutions serves to combat not only those vices, but also administrative centralization.

These institutions were numerous and local, so in attending to them, men had to come together. In this way, Dana Villa rightly argues that they are a kind of association in Tocqueville’s work, and their nature as fixed and standing earns them the title: permanent associations.[17] The same powerless of the individual is felt but then reconciles once he discovers that “he is not so independent of his fellow men as he had at first imagined, and that in order to obtain their support he must often lend them his co-operation.”[18] Pretty pride disintegrates, arrogance recedes, and intrapersonal connections emerge. Self-interest even spurs compromise and compassions, as a resourceful democrat will aim to win favor. Tocqueville adds to these somewhat intuitive claims, that public affairs are to an extent contagious, that in time man will attend to them not by necessity but by choice, and that the self-interested compromise will become habitual altruism and service.

On one hand, then, permanent associations combat the atomization and individualism. As a nexus of liberty—where people have choice they want to make—these associations safeguard against the ills of social democracy. They also are a more immediate front against despotism, as decentralizing forces.

The rationale here is largely obvious: provincial administrations assumed the duties commonly assigned to centralized national administrations. In that, there is simply less need for centralization, and an eager central administration would have to confront the collective pride of towns accustomed to and energized by self-rule. Just as importantly, the decentralization create natural barriers to the tyranny of the majority as it’s faced with numerous, disparate groups to infiltrate, win, and effectively lull.[19] As such, Tocqueville holds them in high esteem, considering them the second greatest legal cause for the maintenance of the American democratic republic, “which limit the despotism of the majority and at the same time impart to the people a taste for freedom and the art of being free.”[20]

Permanent institutions, as they were, constituted politically democratic institutions, where the individuals could exert their independence and develop a sense of interdependence safe from the perils of anarchy thanks to limited power. Thus, they were hotbed of the beneficial democratic mores, by providing a taste of freedom and introducing men to the art of associations.

Advanced training came from political and civil associations.

As Tocqueville explains, political associations—political parties, for example—are “large free schools where all members of the community go to learn the general theory of association.”[21] Civil associations—for example, professional associations—are similarly instructive, but often require risks and thus are not “free.”

Civil and Political associations, though, are closely related, as Tocqueville explains. They are similar in that men come together to achieve a goal, both tethering the individual to the collective. The phenomenon, much like the initial attendance to public affairs, was an outgrowth of self-interest. As men were individually powerless, they came together by necessity—as a form of even shallow self-interest—and soon, he wrote, it became instinct: “As soon as several of the inhabitants of the United States has taken up a opinion or a feeling which they wish to promote in the world, they look out for mutual assistance, and as soon as they have found one another out, they combine.”[22] Thus, the independence of equality of conditions also fosters interdependence: “From that moment, they are no longer isolated men, but a power seen from afar, whose actions serve for an example and whose language is listened to.”[23] In this, they overcome their individual enfeeblement and gain a sense of associational power.

Civil associations, in addition, constituted the antithesis of administrative centralization. Not only were they loci of liberty, but they were decentralized administrations as well. Tocqueville ironically remarked that what was commonly performed by an aristocracy’s central administration was attended to by an American association. They were, in a sense, democratic foot soldiers—with newspapers as air support.  Newspapers give civil—and even political—associations greater reach, unifying disparate groups and, if necessary, raising them against an oppressive force—be it the tyrannical majority or an imposing bureaucracy.

The forms of associations—permanent, political, and civil—have different corrective effects but share a corrective mechanism. For Tocqueville, democracy—broadly understood—gave rise to both egalitarian passions and “tastes of freedom.” Together, they instilled both restlessness and independence, but only the art of association would seem to satisfy those passions—which, though, it couldn’t. Instead it tempered them and combined them into self-interest rightly understood—that is, self-interest that is aligned with the communities interest. It is the habit generated by associational life that forces man both above himself and into public affairs.

Self-interest right understood can be seen as a kind of civic virtue, but in this context, it’s more appropriately seen as a democratic virtue, as it would pervade a healthy democracy. This seems to explain Tocqueville’s bold assertion that, “the principle of self-interest rightly understood appears to me the best suited of all philosophical theories to the wants of the men of our time…[and] their chief remaining security against themselves.”[24]

This boldness hints at a more axiomatic reason underpinning Tocqueville’s belief in the corrective power of associations. The greatest evil of democracy was tyranny, in which there would be no liberty, no free choice of moral action, and no chance of virtue—a bleak but probable outcome considering the “insatiable” passion for equality and the subtle abdication of liberty to it. Thus, political liberty must be made more attractive and its exercise more common. Associations multiply the loci of liberty throughout society, and, by injecting enlightened self-interest into democracy, they redirect the very forces once opposing liberty to motivate its expression. Associational life thus sustains liberty and even instill a kind of virtue that, however lowly, still triumphs above the “barbarism” and “wretchedness” of despotism. [25]

While in the thick of fellow recruitment for Code for America’s inaugural program, we were reviewing the social traction we were receiving, and one tweet in particular caught my eye: “Ask not what your country can do for you, ask what you can code for your country”. The messaging was striking: it blended together patriotism, service, and tech — CfA’s formula — by playing on a piece of American history. This, I figured, was a model we could employ:

See the full set of patriotic binary art.

Few moments in the Nation’s history have Supreme Court decisions so aroused opposition that they were directly overruled by amendments to the Constitution. It is rare, and it obviously takes a substantial perceived shock to the governmental system before Article V’s revision machinery is called into action. The last instance resulted in the Twenty-sixth Amendment which overcame a Supreme Court decision, Oregon v. Mitchell, to protect eighteen-year-olds’ right to vote. This is the only recollection in the last half century.

Now, there could be another. Within hours after the Court issued its ruling in Citizens United v. Federal Elections Commission, advocacy groups were called for a constitutional amendment to undo the ruling. One such group, the Campaign to Legalize Democracy, circulated an online petition to gather support for the idea; by the next morning, it claimed more than 21,000 signatures. Clearly, the Court’s decision was not taken lightly.

The move to a constitutional amendment, however, is revealing. When a bill is struck down, the popular response is legislative remedy, a more specialized or less ambitious bill. The immediate jump to constitutional amendment suggests a more fundamental issue, that the Court has imposed, redefined, or stripped the meaning of a right. They had changed the rules of the game, and the people were left asking, can we change them back, please? So what riled them up? What caused the stir and sent citizens back to the latter pages of their 200 year old charter? The decision. And for good reason. Citizens United not only constituted a break from recent tradition that overturned multiple presents but, even more troublingly, it issued a broad re-understanding of the idea of free speech — a corrupted and dangerous interpretation of our first freedom.

Background

During the 2008 presidential primary season, Citizens United, a ideological group funded by  for-profit corporations, produced an anti-Hillary Clinton documentary to air through a cable television “video on demand” service. In exchange for a fee over a million dollars, a cable television operator consortium would have made the documentary available to cable subscribers to download free “on demand,” as part of an “Election ’08″ series. The McCain-Feingold campaign-finance law, the Bipartisan Campaign Reform Act (BCRA), however, bars certain corporate-funded television broadcasts in the period before an election, and the law requires disclosure by the funders of election-related broadcast advertising.  Since Citizens United relied on corporate funding, the group feared the Federal Communications Commission would use the law to block its plans. It asked the court to forbid any such action. Citizens United never directly asked the court to overturn the campaign finance law. It only sought a declaration that the law did not apply in this case. The initial question presented was whether such a documentary distinguishes itself from the kinds of speech — advertisements, for example — governed by BCRA, but upon consideration, the court asked the parties to re-argue the case on whether BCRA could constitutionally ban corporate expenditures on political campaigns within the near election window.

Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on ruled that the government may not ban political spending by corporations in candidate elections. The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle: that the government has no business regulating political speech. Through their argument, however, the majority not only undermined the findings and goals of relevant precedent, but also granted sweeping and unfounded rights to corporations, striking at the core of democratic theory.

Majority’s argument seems to be two-fold: 1) corporations are effectively constitutional persons; 2) corporate independent expenditures are protected political speech.

The Majority’s Argument

1) Corporations are treated as people in the law.

Can a corporation be seen as just another speaker? Modern First Amendment jurisprudence is clear in its appreciation of peoples from different classes, races, and genders: the poor female Jew can speak as loudly as the rich male Muslim. Distinctions among people are non-starters for political speech restrictions. Indeed all people have the same rule on individual expenditures in a campaign. To argue that because of this corporations are treated unfairly is to argue that a corporation is for the purposes of the law effectively a person.

However odd, such claim has substantial grounding in precedent. In Trustee of Darthmouth College v Woodward and in many contracts cases henceforth, the Court has afforded human-like characteristics to corporations; that is to say, the Court has determined some cases and some situations when the law would look at a corporation as a human. This long-standing tradition is what allows individuals to hold corporations liable in civil court as a singular entity. It’s what allows parents of a dead child to sue the manufacturers of a defective toy.

The rationale, for example, in Darthmouth was to enhance the corporation’s ability to contract, and in others, it was to guarantee worker or consumer rights against the corporation. In both cases, however, the rationale was largely economic. The corporation would either be more efficient or more careful in its business practices thanks to its human-like attributes. There had never been purely political reasons for that extension. Corporations were never given a vote, nor was it afforded any kind of democratic respect. We did not accord them rights because we wanted to hear from them; we wanted them to make us more money. In fact, in Austin, the political-based extension was rejected plainly. The Court in Austin lambasted the entry of the corporation into the political arena, because of ”the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Notable here is the disconnect between the corporation’s function as a wealth amassing institution and the its composition of many individuals. That, the Court had said in 1990, was a compelling reason that legislators could use to single out corporations for restrictions on their political activity. This precedent thus stood as a formidable obstacle for the majority to overcome – it would have to not only reject that argument against personhood, but advance its own for it.

Kennedy takes up the task and begins by making it clear that corporations can and do speak. They can speak in many of the same ways people can: they can issue statements, purchase advertising, etc. They share the functional ability to form an opinion and broadcast with humans. And yet for the same kind of speech, the corporation can be criminally punished in the same way individuals can be punished for violations of crimes: “The law before us is an outright ban, backed by criminal sanctions… These prohibitions are classic examples of censorship.”

Since corporations can speak like a person and are punished as if they a person, then they should have the same rights and restrictions on speech such as persons. But this alleged congruence, according to Stevens, seems to hollow out the meaning of human nature. Corporations have no conscience. They have no sense of justice, compassion, or empathy. Their decision-making framework overlaps with only a fraction of man’s. Its interests are exclusively economic and do not include the health and welfare of society. Its acts do not reflect the will of shareholders. More importantly, it is not seeking to join and further the free flow of ideas.

This is not a point Stevens expands on too greatly, but it merits consideration. Kennedy’s argument is premised upon a fear of the “chilling effect” BCRA would have on the open exchange of ideas, particularly political opinions. This is an historic conception of free speech which assumes a kind of commerce of ideas or a marketplace where more speech means more ideas and so more competition for the best one. This echos John Stuart Mill’s argument for the liberal state. In this view, even bad speech is good for the market: it serves as fodder for the better ideas. This market-based conception of free speech motivates Kennedy’s indifference towards both the speaker and the potential for corruption.

Notably, however, corporations in general are not seeking to join that market. They are concerned with commerce of goods, not ideas. In fact, they hope to profit off of ideas, not share them. This is easily seen when contrasting human-human political interaction with corporation-human interaction.

A misinformed voter may wrongly attempt to persuade an ignorant voter. He talks to her, reasons with her, and pleads her to change her mind for her own good. More ideas came forth, they were contested, and potentially both individuals left with better ideas to go and make their own political decisions.

Consider the case, then, of a corporation. If they were to engage in political speech, as well, it would not be as a collaborative member of the discussion but more rather a ideologue espousing only its interests. It cannot be convinced to take up ideas for non-self-interested reasons. It is an economic beast, and completely egotistical. It is a one-way participant by definition and so distinguishes itself from all others. Thus, the more likely recourse is, say, purchasing a television ad on behalf of a candidate simply for his benefit and the corporations. Again, this distinguishes this case from the other. Whereas the ignorant voter may possibly have altruistic motivations, the corporation would not. The ignorant voter watches the ad and then may or may not change her mind. Afterwards, notably, only one actor can go on to use that “interaction” for political decision-making; the corporation cannot.

This presents a rather skewed vision of the open market of ideas: the system is closed, the market stilted, and the ideas decidedly self-serving. More importantly, if Kennedy and others justify—at least in part—this marketplace for its direct benefits to democratic processes—a kind of consequentialist argument—then it seems there are problems for the entire enterprise. Only one party in the corporate-human political interaction can vote, the person, and that vote is potentially skewed against their more human tendencies because of the cold bias in the message. This conception of free speech threatens not only to cheapen autonomy, but also to sand it down.

Stevens flagged these very issues for democratic legitimacy and autonomy in his dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Indeed. It is not too much to expect that lawyers for corporation may well be looking to explore the outer possibilities of their clients’ “personhood” and new-found constitutional equality.

2) Corporate speech serves the interests of the First Amendment.

The Court had to not only deal with the precedents distinguishing corporate from human speakers but also those distinguishing the value of commercial speech and that of political speech. This is not to say the Court had to argue that money and speech are equivalent; this precedent was established in Buckley v. Valeo: “a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” So that while money is not literally speech, it enables and amplifies speech when it is used to buy political advertising and therefore, according to the Court’s logic, money expended for that purpose merits First Amendment protection. Later in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Court for the first time brought commercial speech under the umbrella of constitutional protection on the reasoning that by providing information to consumers it furthers the First Amendment goal of fostering an informed citizenry. Yet a bright line remained between commercial speech and political speech, one deepened in Austin (“the corrosive and distorting effects…”).  As Stevens argues in his dissent, the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”

The Majority reasoned this principle should be abandoned as paternalistic: to assume corruption is to assume a gullible public. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be fenced in by a government protecting them from information they allegedly could not handle. In his opinion, Kennedy argued that this kind of paternalism that seek to combat gross inequality was contrary to the political structure set up by the Constitution.  Leveling electoral opportunities means that the Congress is imposing its own judgments on what candidate capabilities should contribute to the outcome of an election. But Kennedy pointed out, “the Constitution confers on voters, not Congress, the power to choose the Members of the House of Representatives.” Put another way, Congress shouldn’t be able to control who you get information about Congress from—or at a minimum they should have very, very little control.

In that spirit, the Court held that corrupting potential of near election independent expenditures was not sufficiently dangerous as to justify state action. Independent corporate expenditures are not pre-arranged or coordinated with individual candidates, this “undermines the value of the expenditure to the candidate.” Independent expenditures arguably do not lead to quid pro quo corruption. Without coordination, it would be difficult to have—or at least prove—causation. In fact, Kennedy goes further and argues that corporate expenditures would allow more meaningful participation for less wealthy citizens, banding together to support a cause. Their voices would be magnified, not drowned out.

Here again Kennedy follows the open marketplace approach to free speech. Fewer restrictions will create more speech, more sources of speech, and more groups speaking.  This, for the free speech accountant, is quite a good thing. However — as I’ve argued — substantial problems for individual rights are at issue in this dynamic.

Consider Tom, the lowly and lonely middle-aged man who works from home, freelancing. Tom has a right to free speech, but all Tom can really do is donate a few dollars to his candidate of choice or to a political action fund. There’s no union he can join, no corporation, no larger for-profit group he can magnify his impact with. All he can do is donate a few dollars. In a way, one might argue that even with restrictions on independent expenditures by corporations, Tom would have little influence on the political election and a—we can say—marginal free speech usage. But, more importantly, when that restrictions his voice diminishes as more actors enter the stage and others group together and grow louder. (There in fact seems to be something deeply worrisome about a theory of free speech that seeks to encourage the loudest to further overwhelm the meek.) The community as a whole may have benefited from this effective transfer. But this would be to undermine that individual’s guarantee of that right.

To illustrate the rights violation in this effective transfer, we can turn to John Rawls theory of political equality. Justice, according to Rawls, demands fairness to persons, conceived of as free and equal. Part of the first principle in his conception of justice as fairness is a requirement of political equality, which presents the implications of this conception of justice for the organization of the political process—including voting rights, and rules for organizing elections and aggregating votes, as well as rights to freedom of political speech; the norm of equal opportunity for effective political influence — what Rawls “the fair value of political liberty”—condemns inequalities in opportunities for influencing influence political decisions. This requirement of fair value of political liberty is modeled on the idea of fair equality of opportunity. The idea is that people who are equally motivated and equally able to play the role of citizen—by exercising their capacity for a sense of justice and aiming to influence collective decisions—ought to have equal chances to exercise such influence, irrespective of economic or social position. For Tom, he would have lost his equal influence on account of both his economic and social position: he lacks the funds or connections to join a more influential group to equalize his impact. The value of his right then is diminished.

On top of this, the Majority’s optimism regarding the corruption seems unrealistic. Independent expenditures ban coordination and planning before a political action by the supporting grow. In no way does this stop the candidate from seeing the advertisements or hearing about them. Nor would it stop the candidate from tracking the influence of those advertisements on her campaign. Did that ad generate a bump in the polls? Did that company end up helping or hurting? These are inevitable questions for a candidate even if the expenditures were independent. A perceptive and appreciative candidate might still be inclined to curry favor his most effective supporters, especially if the contributions were substantially higher than others who just cut him a check. A free media blitz is harder to find than a checkbook. Thus because independent corporate expenditures do in fact seem to unfairly harm individuals and lead to a real possibility of corruption, the Majority’s argument seems insufficient, especially in light of centuries of precedent against them.

Conclusion

Most broadly, however, Citizens United should unsettle democratic citizens not because of its break from precedent or unsound argumentation, but because of its implication. It positions citizens and corporations on the same level, effectively saying that you and me are no different than Comcast or Sears. It considers a corporation’s messaging and marketing as important as your voice and speech, giving Starbucks the same (if not more) influence on a campaign as you.

It is wrong.

It’s time we remember that, “We the People,” still means something.

To quote, rightly enough, one of Chicago’s finest: are you in?

“When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” – Justice Oliver Wendell Holmes

In the fall of 1919, Justice Oliver Wendell Holmes dissented in Abrams v United States in what has now become a formative piece of legal scholarship in first amendment jurisprudence. This dissent attached a theory of freedom of expression to the language o the first amendment, relying upon the liberal conception of speech expounded by John Stuart Mill.[1] Mill argued that human knowledge was fallible and needed challenge in order to grow. Since we could not know what was right, nor should we take comfort in thinking we do, we needed more opposing views to constantly check the prevailing norms. More speech and so more approximation of truth. The state was conceived as a neutral arbiter; its function was the make sure society was at liberty to go in any direction it wished to go. It was a steward of the market.[2]

But does speech really operate in the same kind of marketplace as commercial goods? Are campaign advertisements equatable to iPods? Tying a defense of the freedom of expression to the virtues of the free market would require and exact or close mapping of their values and functioning. Holmes and Mill merely speculated about the benefits of a marketplace of ideas, but if government regulation (or lack of regulation) is to be considered similarly, then a closer inspection is necessary. We must assess how easily the Forum could be called the Agora.

Anderson’s Market Norms

In her book Value in Ethics and Economics, Elizabeth Anderson takes a close look at the mechanics of the market and in what ways its values could be applied to typically non-market goods, for example prostitution and healthcare.[3] To do so, she works out a set of norms, which she takes to structure market relations—that is, certain characteristics of either the participants going into the market or transactional system itself. Her framework will be a useful one is determining whether speech can function in the same way as an economic good:

The norms structuring market relations that govern the production, circulation, and valuation of economic goods have five features that express the attitudes surrounding use and embody the economic ideal of freedom: they are impersonal, egoistic, exclusive, want-regarding, and oriented to “exit”  rather than “voice.” norms with these features, thought not governing all market transactions, are characteristic of the market. They express a shared understanding of the point and meaning of market relations recognized by every experienced participant. (emphasis mine)

Let us consider each of these ideals in turn.

1) Impersonal

Anderson describes the impersonal aspect of market relations, “Each party to a market transaction views his relation to the other as merely a means to the satisfaction of ends defined independent of the relationship and of the other party’s end.” This is to say that the economic actor functions without concern for another’s interest — only her own. In fact, this impersonal nature is held to be a democratizing feature of the market, as individuals from generally opposed groups will interact for economic reasons. As Anderson puts it, “Money income, not one’s social status, characteristics, or relationships, determines one’s access to commodities.”

Seen this way, the marketplace of ideas seems to far more personal or at least less impersonal than the standard commodities market. Access and influence are not defined singularly by one metric. Money, connections, social position, and community value substantially affect one’s ability to interact with the “marketplace of ideas.” Individuals and groups who would peddle their ideas to the public enjoy enormously disparate access to the channels of mass communication. Rupert Murdoch, for instance, has television networks and newspapers at his disposal. Moreover, cultural affinities and psychological predispositions distort the way ideas are bought and sold to a greater degree than is true for commodity and service markets. Whereas the market is seen as a cultural leveler, the exchange of ideas often strengthens group polarization and fracturization. Differences among humans in such capacities as articulateness and comprehension also contribute to market failure: ideas that favor intelligent, well-spoken people — the priority accorded higher education might be one example — have a distinct and unfair advantage in the marketplace. This is to say that the marketplace of ideas would not only be shaped by brute luck differences that control the distribution of wealth, but then further maligned by that very distribution.

2) Exclusive

“A good is exclusive if access to it is limited to its purchasers,” Anderson explains. “If there is no means of excluding people from enjoying a good, one cannot charge a market price for it. A good is a rival in consumption if the amount that one person consumes reduces the total amount of it available to others.”[23]  Markets for goods and services generate prices and levels of output. Scarcity, both of production and consumption resources, is the phenomenon that drives markets for goods and services.

At first, if we were to treat information as a “good” rather than an “idea,” the analogy for this characteristic seems applicable. A market for ideas generates a collection of individual beliefs and, in some sense, the production of observations and arguments. There is certainly a supply and a demand for information, however quantifiable. Scarcity — in a way — also limits what ideas can be believed and communicated: a person must choose whether to believe something or not: she must decide which few ideas from a nearly infinite pool will command her finite attention.

As Sunstein describes in “The Future of Free Speech,” this phenomenon is becoming increasingly apparent in light of modern technologies, where he cites MIT professor Nicholas Negroponte phrase, “enthusiasm for ‘the Daily Me’.  Consumers now have seemingly complete control over the information they confronted. Whereas “general interest intermediaries” such as newspapers or nightly news programs would present an aggregation of multiple topics, points of view, and speakers, the internet allows individuals to construct their own information silo:

In such a system, the market for information would be perfected in the sense that consumers would be able to see exactly what they want, no more and no less. When filtering is unlimited, people can decide, in advance and with perfect accuracy, what they will and will not encounter. They can design something very much like a communications universe of their own choosing.[25]

Challenges still remain for the full realization of ‘the Daily Me’ and the free market analogy. Prices and scarcity seem to be at best roughly mapped. The production of an idea does not deplete resources available to the producer as occurs when production priorities are established regarding goods and services. In fact, more often the production of an idea creates additional intellectual resources that facilitate future production. Modern centers of innovation are living examples of this point. Mill’s defense of free expression relies on this notion, since it aspires to approach truth with more and more speech. Similarly, when one consumer “buys” an idea the supply of that idea available to other consumers is not thereby diminished; in a way, it is bolstered. As Anderson explains, ideas would be a kind of “shared” not rival good: “Shared goods, by contrast, are not rival. I do not lose, but rather enhance, my pleasure in a joke by conveying it to others.”[26]  In these respects, the phenomenon of scarcity does not determine how ideas are socially ordered in quite the way it determines the allocation and distribution of conventional goods and services.

3) Egoistic

One might respond that dissonance between consumer and producer power in this market merely helps it meet the necessary description of “egoistic.” “Each party in a market is expected to take care of herself,” Anderson writes, and so we might say that the siloed consumer made her own bed. Her choices were a reflection of her autonomy. In Nudge, Sunstein argues that the traditional defense of free choice misses some structural threats to autonomy.[28] We must look not just at a choice but behind it, and see the impact societal norms and roles have on individual autonomy and preferences. Martha may drink a particular beverage because she was part of group and that’s just what they did – it was a societal norm. Now what if discrimination or xenophobia was a norm in her society? According to Sunstein’s definition of autonomy – an individual being able to choose reflectively and deliberately from a reasonably good set of options – the close-mindedness is intensively problematic. Martha isn’t say exposed to other cultures, and she never doubts her race is the best. Her questioning might even be ridiculed, and so she doesn’t. Considering the filtering and group polarization possible in new media, this threat seems quite real.

4) Want-regarding

Aside from the threat to autonomy, the emphasis on consumer choice in the ideas market may distort it or damage the exchange of ideas, as it would need to be a “want-regarding institution.” Anderson explains this kind of institution as one that “responds to ‘effective demand’ — desires backed by the ability to pay for things.”[29] In the market, effective demand is often seen through substitution effects, the effect observed with the changes in relative prices of goods. Having goods of different quality and price should help a market achieve efficiency. People will compromise on their wants slightly for a lower cost. But there is no equivalent bargaining in the ideas market. The very concept of “price” is problematic when the object of consumption is ideas. What is it that a person must pay in order to “consume” an idea other than the opportunity to believe conflicting ideas? In this way, the ideas market lacks the tools to effectively measure whether individual’s wants are being met.

Moreover, seen as a want-regarding institution, this market in effect seems wholly anathema to the defenses propagated by Holmes and Mill provide. “Commodities are exchanged without regard for the reasons people have for wanted them,” Anderson adds, “Since it offers no means for discriminating among the reasons people have for wanting or providing things, it cannot function as a forum for the justification of the principles about the things traded on.”[30]  In this regard, a commodity or service market lacks a normative dimension, and conflict and disagreement are to be avoided. Money, preference, and supply are dispositive. But, according to Mill, the marketplace of ideas should foster disagreement, with bad ideas coming up against good ones to keep us moving towards truth. We then would not want listeners and readers to be looking simply for ideas that will best serve their personal needs narrowly conceived; nor should they be complacent in their beliefs. We also expect consumers of ideas to believe some things they would not want to. For both Holmes and Mill, the social value of ideas lies to a large extent in how their production and consumption generates benefits over time for persons other than the immediate producers and consumers. But then it seems misguided to place so much faith an institute designed for immediate preference realization.

5) Oriented to Voice & Exit

Finally come the concepts of “exit” and “voice” in a market. “Individuals influence the provision and exchange of commodities mainly through ‘exit,’ not ‘voice,’ Anderson argues citing Albert O. Hirschman’s work, “Exit, Voice, and Loyalty.” The exit option, according to Hirschman, is when an individual simply stops buying a business’s products or services or stops participating in an organization with which she is dissatisfied. Consumers in a commodities market can avail themselves of “exit.” For example, if a consumer does not like the new and improved Dominos Pizza, she can exercise her exit option, switch to Pizza Hut, and leave it to the former to figure out why.

“Voice” is the direct statement of an interest, preference, or dissatisfaction, while still attached or engaged to a group. If I am dissatisfied with the college I attend, I can run for student government, hold a position on the governing council, and lobby for any desired changes I’d like to see at the school. Any resulting improvements in the organization benefits me as well as my classmates. To “Exit” would be to transfer to a different college. Thus, in comparison to exit, voice is the more participatory method of providing feedback, and expressing one’s preferences and values, to an organization. With exit, improvement of the exited organization comes about, if at all, courtesy of the invisible hand, and any such improvement does not redound to the benefit of the exiting consumer. Anderson describes the relationship between exit and voice in the commodities market: “The counterpart to the customer’s freedom to exit a trading relationship is the owner’s freedom to say ‘take it or leave it.’ The customer has no voice, no right to directly participate in the design of the product or to determine how it is marketed.” The invisible hand of the free market acts as the feedback mechanism, as, they say, consumers vote with their wallets.

But this system of exit and voice seems altogether contradictory for a system of free expression. Considering the example of a consumer watching a media news outlet, the analogy can stand up in terms of exit: she can change the channel. Following market norms, however, this would suggest that the media outlet needs to change its coverage or content, if that taste became widespread, that it should follow the consumers who exited. Yet, both Holmes and Mill seem committed to the virtue of a diverse space for free speech, and certainly — as we will return to — a pluralistic democracy would benefit from the multiplicity of ideas. If the consumer is encouraged to “exit” when confronted with unwanted viewpoint, then she would merely seek to reaffirm her potentially misguided or discriminatory viewpoints. This seems to turn democracy against itself, as the majority opinions shape the public forum and slowly pervade the realm of deliberation. In effect, this model threatens to realize the French Observer Alexis de Tocqueville’s fear of the media’s courtier spirit and democracy’s tyranny of the majority:

“A newspaper can survive only on the condition of publishing sentiments or principles common to a large number of men… The more equal the conditions of men become and the less strong men individually are, the more easily they give way to the current of the multitude and the more difficult it is for them to adhere by themselves to an opinion which the multitude discard.”

“Exit” would harmful for a democratic body, and the state might need to enact legislative to mitigate its damage. Thus, if a standard market emphasizes the “exit” mechanism, and a passive role for a consumer, it seems inapplicable for a system of free speech.

On the other hand, “voice” seems much more like the norm a free speech market should be promoting. The commitment shown by the school board member evidences a connection to the organization, a willingness to hear opposing ideas, and an interest to enhance the institution as her own standing.

Conclusion

These comparisons suggest that the standard norms in commodities market are inapplicable for a market for ideas. In every substantive way, ideas do not seem to function in a market, at all; the term “marketplace of ideas” seems contradictory. It’s time we abandon the metaphor as unfit and unwise, and consider instead how we want to value, order, and protect our First Freedom.

Notes

[1] Mill set the boundary at the point where speech or writing was an incitement to violence. He was also clear that his arguments for freedom only applied to ‘human beings in the maturity of their faculties’. Paternalism – that is, coercing someone for their own good – was in his opinion appropriate towards children, and, more controversially, towards ‘those backward states of society in which the race itself may be considered in its nonage’. But it was not appropriate towards adult members of a civilised society: they should be free to make their own minds up about how to live. They should also be free to make their own mistakes.

[2] This very much aligns with the positive and negative view of rights propagated by Isaiah Berlin.[18] Individuals were protected within their own sphere of negative rights — from intrusion of the state into their private affairs — and the state had some control in positive rights, namely political participation. In terms of the first amendment, this meant that one was protected inside one’s autonomous zone by libel and privacy laws, but outside it, in the combat zone, one was free to say anything one pleased.

[3] The efficacy of market mechanisms as a comprehensive means of social ordering — in for speech or for other goods — run into trouble when considering market failure. As Joseph Stiglitz explains in his Making Globalization Work, markets are imperfect. Information asymmetry distorts markets. Collective behavior — fractionalized interest, group polarization, etc — can also distort markets. So too can free riders: persons who are in a position to benefit from the transactions of others without having to pay the price. In most speech settings, the audience could fairly be described as a convention of free riders. A different type of externality undermines efficiency when the full levy of social costs cannot practically be observed, measured, or assessed against those who engage in the activity. Cost and benefit do not always accurately come in to play. Careful attention to the features and characteristics of the marketplace under consideration is therefore warranted.

The Brilliance and Meaning of JFK’s Inaugural Address

A skeptical public, a looming enemy, and a D.C. winter; On January 20, 1961, Kennedy faced a daunting task. He had won the Presidency of the United States by a fraction—a mere 12,000 votes. He was a Catholic, rich kid, and now he had to fill the shoes of Dwight Eisenhower, the man who won the Second World War. The presidency itself is an unfathomable challenge, and it begins with a tremendous responsibility: the inaugural. History’s cold eye judges these speeches, and they often serve as a focal point in an administration. Thus, Kennedy’s task was great, and so was his speech. His oratory refocused the American system on its founding principles, while expanding them to confront the current crises. With a keen awareness of his audience and breathtaking use of prose, he crafted a concise, but effective speech. More than anything, he set the tone for his administration, not as lofty idealism, but as purposeful realism.

CONTEXT OF THE INAUGURAL

Aristotle defined the art of rhetoric as the ability to see what is possibly persuasive. This demands an understanding of the context and the audience of a speech. Our rhetorical analysis will thus begin with a discussion of the circumstances, broad and immediate, surrounding Kennedy’s inaugural address.

In 1960, Senator John F. Kennedy declared his intentions to seek the presidency. Aside from southern opposition from Lyndon Johnson, Kennedy enjoyed general success in the primary season, though his Catholicism and youth forced a vigorous campaign. After the convention, he tapped Johnson for the bottom of the ticket, adding age and southern support to his campaign. In the general election, they faced the sitting Vice-President, Republican Richard Nixon. The Democrats exploited Nixon’s association with President Eisenhower and tagged him with negligence in curbing the U.S.S.R.’s growth economically and militarily. The U.S.S.R. had grown dramatically and was poised to eclipse the United States on the international stage, while growing increasingly hostile.

Republicans fought back with questions of Kennedy’s Catholicism. Eventually, he had to make a public statement, distancing himself from the Church of Rome: “I am not the Catholic candidate for President. I am the Democratic Party’s candidate for President who also happens to be a Catholic. I do not speak for my Church on public matters — and the Church does not speak for me.” This nonsectarian Christianity, as long as his youth, shaped his character greatly in the public eye. Political posturing helped, but his religious affiliation still plagued Kennedy in the election, keeping the polls close.

Inevitably, national security trumped religious discrimination. By chastising the growing “missile gap”—the difference in numbers between the U.S.S.R. and America in ballistic missiles—Kennedy garnered enough support to ensure a—albeit small—victory. On November 8, 1960, he won the general election by one tenth of one percent. This victory was small; it was far short of any governable mandate. Thus, Kennedy had considerable work to do to capture public trust and support to implement his New Frontier agenda, a set of domestic policies emphasizing government assistance and growth. These policies had not received tremendous approval, initially and during the campaign. In Theodore Sorensen’s analysis of the 1960 victory, he does not mention domestic policy as one of the seven top decisive factors.

Going into his presidency and his inaugural, Kennedy would have to be careful in his handling of domestic policy. One of the top reasons for victory Sorenson does list is Kennedy’s television personality. The 1960 elections provided the first televised presidential debates. In these debates, Kennedy confounded expectations and demonstrated more poise and confidence than the sweaty Nixon. Sorenson cites this advantage as crucial to a win. Kennedy had an acute awareness the television and media played on public opinion.

These factors all weighed in on Kennedy’s inaugural. Kennedy had to deal with questionable domestic support, a daunting international system, and new media. If the art of rhetoric if finding a way to handle the circumstances and still persuade your audience, to be effective, Kennedy’s inaugural would have to be a masterpiece.

THE CREATION AND GOALS OF THE SPEECH

To adequately understand the art of Kennedy’s inaugural, one must appreciate its origins. The staff, officially, began work on the speech in the beginning of 1961. Theodore Sorensen, Kennedy’s top aid and speechwriter, had started laying the ground work considerably earlier. As we will see later, much of the inaugural’s diction and phrasing originated from 1960 campaign. This may seen impure, but it is fairly commonsensical. The President-elect has just spent that last year laying out his ideology and beliefs, and inevitably effective formulations would linger and even sneak into the inaugural. In his memoirs, Sorensen cites the Acceptance Speech in Los Angeles and televised campaign addresses as the source for many notable phrases.

Thus, the speech, itself, was a kind of amalgamation of lines from previous speeches, a near highlight reel of the top pieces of tested rhetoric. This quality made each line a possible “sound-bite” in the new age of television. The choice to have each line very precise and self-contained demonstrates Sorensen’s and Kennedy’s keen awareness of the media and the broader audience. Though campaign rhetoric played a key role in the creation, the New Frontier and domestic policy were slighted. In his memoirs, Sorensen recounts the difficulty crafting nonpartisan domestic policy sections of the speech. Eventually, Kennedy eased the speechwriter’s burden: He told Sorensen, “Let’s drop the domestic stuff altogether. It’s too long anyway. It’s more effective that way [without domestic policy] and I don’t want people to think I’m a windbag.”

This decision to exclude domestic policy allowed the speech to focus on foreign policy, a more uniting topic where the President-elect had already scored political points. According to Sorensen, Kennedy “wanted it focused on foreign policy. He did not want it to sound partisan, pessimistic or critical of his predecessor. He wanted neither the customary cold war rhetoric about the Communist menace nor any weasel words that Khrushchev might misinterpret. And he wanted it to set a tone for the era about to begin.”

Thus the inaugural’s goals were harmony among friends and a novel, yet civil handling of enemies. Now let’s us begin to examine not the art of the text, but its execution of those goals.

JANUARY 20, 1960

There is no greater stage. Overshadowing the assemblage of statesman, foreign dignitaries, and Presidents, Kennedy commanded the east balcony of a newly painted Capitol with thousands of eager fans, battling the cold to see their new leader. His address, though, was to an even greater audience. Kennedy used this opportunity to speak to all members of the international community, allies, enemies
and all Americans. He had a special message, a pledge or request, for each, and he structured his speech in that manner.

INTRODUCTION

Kennedy began his inaugural with a traditional introduction, acknowledging the great leaders in the audience and then the great legacy before him. He grounds himself in the American tradition, reminding everyone, “I have sworn before you and Almighty God the same solemn oath our forbearers prescribed nearly a century and three quarters ago.” Also, this attempts to counterbalance Kennedy’s youth—he was only 43 when elected. Moreover, it demonstrates the importance of the American Founding and its principles for Kennedy. This theme continues throughout the speech, while Kennedy ties America’s course in the international situation to its guiding principles. Immediately, he makes it explicit: “…the same revolutionary beliefs for which our forebears fought are still at issue around the globe—the belief that the rights of man come not from the generosity of the state, but from the hand of God.” Thus, Kennedy set the ideological framework for his foreign policy, expanding the American view of freedom to the world. Scholar Robert Bellah takes this interpretation one step further by focusing on the reference to “Almighty God.” He argues that Kennedy’s mention of divinity while reference to his constitutional oath elevates his responsibility from just serving the American people to more universal goods.

This theme will return later in the speech.

Though Kennedy emphasizes the ideas in the Founding, he is quick to distinguish his people from past Americans: “the torch has been passed to a new generation of Americans—born in this century, tempered by war, disciplined by a hard and bitter peace.” In this section, Kennedy is most apparently employing his character for rhetorical purposes. He turns his youth around to symbolize a new generation, contrasting the older, quieter Eisenhower. Moreover, Kennedy had served in WWII and witnessed the calcification of the Cold War. This section identifies the new President as one who has a new perspective and a basis for his views. Paragraph 4 closes with the mobilization of the Declaration of Independence, summarizing Kennedy’s general policy to “assure the survival and the success of liberty.”

FRIENDS, ALLIES, AND SISTERS

Structurally, the speech continues to address the different members of the international community. Kennedy begins with the allies. The content of this section is largely traditional (“we pledge… loyalty”), but Kennedy’s style is still noticed. The lines, “United, there is little we cannot do in a host of cooperative ventures. Divided, there is little we can do,” begin to demonstrate the speeches technical beauty. This is an example of anastrophe—deviating from the normal order of words—a rhetorical device probably unknown to the audience, yet still powerful in delivery.

Next, Kennedy addresses new members of the free world. In his section, he tempers his idealism with a refreshing touch of realism. He does not expect the free, skeptical world to follow America without question. Moreover, Kennedy places responsibility for their success not in his hands, but in theirs: “we shall always hope to find them strongly supporting their own freedom.” This continues later in his address to the people still shackled by “mass misery,” when he promises to “help them help themselves.” Pragmatically, he makes it clear that America cannot be the world’s keeper, singlehandedly, nor should it be. Kennedy’s view of government (later immortalized with “ask not”) demands
joint responsibility and service to society—as seen in his creation of the Peace Corp. In his inaugural, Kennedy expanded that sense of responsibility to freedom loving people across the globe.He continues to with a call for international cooperation. First, to the “sisters” to the south, Central and South America, he pledges a “new alliance of progress” to cast off the “chains of poverty.” Pragmatism immediately follows and contrasts this idealism. “…this Hemisphere intends to remain the master of its own house.” Though lofty, this policy emphasizes national security, keeping the U.S.S.R. off our borders, again demonstrating his practical idealism. The “friends” section closes with a vigilant promise to aid the U.N. from becoming “merely a forum for incentive.”

“TO THOSE NATIONS WHO WOULD MAKE THEMSELVES OUR ADVERSARY”

Throughout the speech, Kennedy makes somewhat vague references to the U.S.S.R. (“iron tyranny,” “back of the tiger,” “hostile powers,” etc). It should be noted that he never directly names our Cold War adversary or any specific country for that matter. Yet the intention rings true. When he addresses “those nations who would make themselves our adversary” everyone knows who he is talking about.

In these sections, Kennedy truly demonstrates the excellence in his character. Embodying a true statesman, he unabashedly confronts the perils of the present, while striving for a better peace. Moreover, he reminds both sides the incentive to peaceful recourse, safety from “the dark powers of destruction unleashed by science.” He begins with the basis for his “request” and then continues to outlines a rough set of goals for the cold relationship.

The first goal is on based on western side of the Atlantic: “We dare not tempt them with weakness.” This sentiment reverberates with Kennedy’s campaign, where he played the “missile gap” effectively. Some saw his next line as unnecessarily alarmist: “For only when our arms are sufficient beyond doubt can we be certain beyond doubt that they will never be employed.” Nonetheless, only
minutes earlier Kennedy had reminded the war that this generation was “tempered by war, and disciplined by a hard and bitter peace.” He had fought in a war, and he was not willing to get in another, let alone lose one. Moreover, he had intimated this sentiment before, demonstrating his honest belief that the U.S.S.R. only responded to strength.

After that note of national self-interest, he again opens the doors to more peaceful and friendly cooperation. He admits the flaws with over-militarization (“the spread of the deadly atom”) and then begins his litany of requests from both sides. They requests themselves are nothing extraordinary; they are basic calls for the use of the positive ends of human nature and science, civility and exploration (the closest reference to the New Frontier). Technically, however, these lines are breathtaking. First, each begins with the phrase “let us.” This is a classic example of anaphora, a tool Kennedy used often and even earlier in the speech. This repetition tied together the requests, while
adding structure to each individual one. The first call, “Let us never negotiate out of fear. But let us never fear to negotiate,” employs chiasmus, a device where phrases are reversed in order in successive sentences. This links not negotiating and desperately negotiating, emphasizing their common ineffectiveness. The other key rhetorical device in these sections and in the inaugural overall is antithesis, a
juxtaposition of contrasting words or ideas. More specifically, Kennedy often used the “not___, but___” construction, as seen in the lines, “let both sides join in creating a new endeavor, not a new balance of power, but a new world of law…” This device is throughout the speech, adding rhetorical beauty, but in this section, it serves a symbolic purpose as well. Antithesis pairs together contrasting ideas, shunning one and accepting the other. This construction—joined, parallel phrases with a preference of one—symbolizes Kennedy’s view of the Cold War. Though he asked for peaceful cooperation, he still maintain a strong ideological preference for the American system, and this sentiment is seen and furthered throughout the inaugural.

MY FELLOW CITIZENS

Kennedy transitions from his address to the U.S.S.R. to one the American people with a note of realism: “All this will not be finished in the first 100 days. Nor will it be finished in the first 1,000 days.” Here he manages to shirk off the expectations set by FDR or any timeline. Then he finishes the repeated “let” phrases with “let us begin.” This use of the first person plural along with the mention of 100 days stages and transitions to his discussion of national issues and priorities. In these sections, Kennedy again makes the surprising transfer of responsibility. Just as he called on sovereign nations to “help themselves,” he tells the American people, “In your hands, my fellow citizens, more than in mine, will rest the final success or failure of our course.” This sentiment may seem odd coming from a man who has just sworn to “protect, serve, and defend” the Constitution. It would seem that when a President-elect places his hand on the bible and the other in the air, those hands are really picking up responsibility for success or failure. Kennedy circumvents this logic with the help of history. “Since this country was founded, each generation of Americans has been summoned to give testimony to its national loyalty. The graves of young Americans who answered the call to service surround the globe.” This responsibility has been and is the people’s duty. Thus, he places responsibility in the citizens’ hands; the hands that buried the fallen in the previous wars, the hands would carry the
weapons in the future ones.

Again Kennedy promptly follows the mention of past generations with mentions of the uniqueness of the moment. “Now the trumpet summons us again—not as a call to bear arms, though arms we need; not as a call to battle, though embattled we are—but a call to bear the burden of a long twilight struggle… against the common enemies of man: tyranny, poverty, disease, and war itself.” The trumpet reference harkens a biblical sentiment, emphasizing the higher purpose of the current undertaking. It is this higher and broader purpose against the common enemies of man that makes it a “historic effort.” These broad and idealistic phrases and calls may seem impractical, but they serve a real purpose for the speech. They give the speech a more optimistic feel, playing to the public’s
pride: “I do not believe that any of us would exchange places with any other people or any other generation.” By making this movement unique, more would be willing to join or support it.

At this point, Kennedy has captured the immediate audience’s trust (The crowd did yell “Yes” to Kennedy’s query, “Will you join in that historic effort?”). He had devoted the speech to persuading free people—abroad and at home—to accept the responsibility of their freedom. This culminated with the immortal line, “ask not what your country can do for you—ask what you can do for your country.” If the
“success of liberty” defined Kennedy’s philosophy of government, then “ask not…” summarized his view of citizenship. The use of antithesis here is powerful, as it highlighted the drastic reversals of commonly accepted views.

Kennedy closes his inaugural address with a practical understanding that this undertaking has no tangible positives (“good conscience our only sure reward, with history the final judge of our deeds”), but he justifies its undertaking by touching on higher purposes. The last section cites many of the key motivating forces in American life, “good conscience,” patriotism (“land we love”), and the divine (“His
blessing and His help”). The successive placement of these strong drives adds energy to the closing summation, “here on earth God’s work must truly be our own.” Bellah cites that line, coupled with the other religious allusions, as the simplest formulation of Kennedy’s philosophy and—arguably—the overall American purpose.

CONCLUSION

Broadly, Kennedy’s speech served as an expansion of the American Founding. It takes the fundamental principles of our democracy and mobilizes them against tyranny abroad and apathy at home. Kennedy’s rhetoric employs classical themes (duty) and techniques (antithesis), emphasizing the seriousness of purpose. Moreover, the technical beauty and apparent thoughtfulness worked to combat the general tendency to write off Kennedy as a naïve idealist. These techniques complemented his realist evaluation of the unstable international order. Thus, he gave his foreign policy practicality, necessity, and righteousness. Though simply put, this task would be too much for one man or one office. To ensure the success of liberty, he had to ensure all those who wanted it worked for it, from countries to people.

Overall, President Kennedy, confronted by distrust and disharmony, began his short-lived presidency by summoning the better angels of our nature, civility and responsibility.

Resources

• Aristotle. Rhetoric. n.d.
• Bellah, Robert. “Civil Religion in America.” Daedalus (Cambridge) (2005): 40-55.
• Burton, Gideon O. Silva Rhetoricae. 26 February 2007. Bringham Young University. 30 April 2007
• Clarke, Thurston. Ask Not. New York: Henry Holt, 2004.
• Kennedy, John Fitzgerald. “JFK Address to the Greater Houston Ministerial Association.” 12 September 1960. American Rhetoric. 30 April 2007
• Sorensen, Theodore C. Kennedy. New York: Harper & Row, 1965.
• Tofel, Richard J. Sounding the Trumpet. Chicago: Ivan R Dee, 2005.

Last weekend, a member of this year’s trip emailed me asking how to fully take advantage of the opportunity, and since it is such a great opportunity, I thought I’d share my response… for whatever it’s worth:

• Soak it all up — these are all new experiences and people. Don’t rush to judgement or let your mind wonder. Listen to what’s being said and think about what resonates.
• Consider fit — More than pay, title, or location, fit matters; where you think you’ll enjoy going to work every day. Pay attention to that during your tours.
• Don’t be a empty shirt — A smart guy – really smart – just told me that every time he speaks to b-school kids, they ask for his card promising a follow-up, and he knows they never will. He hates it, as he should; it’s disrespectful. Don’t run to the front of the class for a handshake and card unless you actually care and will actually follow up. Take your time and theirs seriously.
• Talk to the employees — You’re lucky to get time with bigshots in every company, but they’re media trained and trained and trained. They can sell the party line. Talk to the other people in the room, the new hires, the assistants. They’ll give you more insight into the actual workings of a company.
• Think about their products — Each company has great perks, great salaries, and great people; what separates companies at the most base level, are their products. Which one excites you? Which one do you think, “wow, that’s cool”? That’s who to go after.
• CMC is a cult, a powerful one — Make strong and meaningful connections to the people on the trip and the people you meet that you think you’ll need. I recently heard a valuable lesson, “Grow your network before you need it.” CMC is an admittedly small but a strong network. If you find alums on the trip you find interesting, talk to them, ask interesting questions, and then follow-up after the fact. They’ll be happy, proud, and a bit self-interested in helping you out.
• Internships are the gateway drug – This isn’t stressed enough for non-econ majors, but internships at major companies are you best way into them. When I got my Google internship, I thought it was a one-in-a-million chance getting the full-time gig. Turns out it was one-in-83; much better odds. Of course getting in the internship was like 1-in-3,000. Nonetheless, still better odds. All the major companies have internship programs, and they getting you hooked from a young age — yes, a little like drug dealers — so youth is actually a good thing.

Identifying the Deep Value in Constitutional Rights

Is the text enough? Common textual approaches to constitutional interpretation prioritize the text of the constitution, assuming the legitimacy of that approach. Justice Antonin Scalia expounds—quite vigorously in fact—his brand of textual originalism, but careful analysis and exploration reveals substantial issues with his account, and Professor Ronald Dworkin does not fair much better. Neither fully incorporates a sound theory of democracy in their constitutional theory. Professor Corey Brettschneider’s value theory, though incomplete, begins from the ground up and offers an attractive conception of democracy and a promising system of judicial review.

We will start by laying out Scalia’s theory of constitutional interpretation, which, when put in the light of Dworkin’s critique, will seem inadequate. Their debate though centers on the text itself, but, as we will see, there are deeper issues as well. Textualism demands philosophical grounding, and both attempt to fix theirs in a theory of democracy. Both fail. Scalia’s procedural account and Dworkin’s epistemic offer incomplete and unattractive theories of democracy, and as these theories underpin their jurisprudence, we can dismiss those as well. In the end, we’ll move past interpreting the text for the text’s sake—or even for equality’s sake—but for the sake of democracy, properly understood, and we will no longer be stuck in the moral world of the 18th century, but free to follow our own moral compass—magnetized by deliberation and consensus—towards a better realization of our most common democratic belief, the right to self-rule.

SCALIA’S JURISPRUDENCE

Let’s begin first by exploring the nature of Scalia’s jurisprudence and continuing to unpack its deeper philosophical underpinnings. We will see that his account in inconsistent and lacking.

Justice Scalia has vigorously pursued a textualist jurisprudence. The text is paramount, and to understand the text, the jurist must use the judicial tradition and canon when confronted with an ambiguity. In the realm of statutory interpretation, the jurist has the full body of judicial precedent; in constitutional interpretation the issues goes more complex. Scalia turns to the specific legal tradition flowing from that text — to “what it meant to the society that adopted it.” He states that this does not mean interpretation demands gleaning intent; instead, he chastises the search for intent, as it employs the common law mentality of American judges to overrun the need for textual interpretation. Textual originalism, however, requires an appreciation of the meaning of a text, not its intent.

The distinction between meaning and intent is key here. To get at the intent is to get at the idea in the scribe’s mind; to get at the meaning is to get at the context and understanding of the time. For the latter, the justice must play the historian, specifically with regards to constitutional interpretation, and attempt to understand what a word would have meant at that time to the population. Scalia explains the process, explaining the apparent contradiction of reading the founding documents:

“I will consult the writings of some men who happened to be delegates to the Constitutional Convention—Hamilton’s and Madison’s writings in The Federalists, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood… What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” (Scalia, A Matter of Interpretation, 38)

Thus, the historical background would contextualize the text, hopefully providing substantive meaning to the language. To be fair, there may be disagreement among originalists—different histories, different contexts—but the discussions are centered on the meaning, not the intent.

Scalia quickly and forcefully notes, though, that this process grounds the meaning of the text in the original time. The meaning of the Constitution now is the meaning of the constitution when ratified. Consider the controversial eighth amendment to the constitution for illustration. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” After reading, one is left to ask, “what is a cruel and unusual punishment?” Scalia is too, but he knows where to look. He would dive into the historical record, searching for what were cruel and unusual punishments and what the principled grounds for them were when the amendment was ratified. That information would then be abstracted to form the moral sense of that time, which would then be applied to the current. In this, he does not deny the concept that the terms “cruel and unusual” are abstract, moral principles—morality, indeed, is quite abstract—but he time dates these principles, locking them into the founding era. At least for interpretation, that is. He recognizes that these principles may change, that society may progress, but the text does not. He cites the example of capital punishment, an arguably unusual punishment in our time, but as it was widely used in 1791, the death penalty would pass constitutional muster for a textual originalist. When the people ratified the amendment in 1791, their democratic action legitimated its force and thus their moral sentiments underpin the text.

Paramount in Scalia’s account is the primacy of the rule of law: the law, once democratically enacted, should be respected. This is what he calls “democratic formalism” or what another could call democratic proceduralism. “Of all the criticisms leveled against textualism, the most mindless is that it is ‘formalistic.’ The answer to that is, of course it’s formalistic! The rule of law is about form…. Long live formalism. It is what makes a government a government of laws and not of men.” In the judicial realm, formalism means rules and procedures in interpretation, not common-law positivism. He warns against the common-law judge’s, or living constitution judge’s, often arbitrary and possibly biased interpretation: that is rule by men, and according to Scalia, that is not compatible with our system of government. He uses that argument then against loosening the constitution’s abstract principles, as that would free the judges to unguided interpretation and, in effect, judicial law-making, which lack democratic legitimacy. That claim, though, requires substantiation, and, furthermore, whatever values we find in his textualism must be greater than the values we find in alternative approaches.

DWORKIN’S CHALLENGE

Let’s begin by examining the argument for and against time dated abstract principles and then continue to consider the democratic legitimacy of Scalia’s jurisprudence.

Legal scholar Ronald Dworkin takes up the issue of time dated principles with Scalia. In his Justice in Robes, Dworkin not only rejects Scalia’s account, but also continues to advance a fidelity system of interpretation.

Dworkin begins by introducing a distinction of semantic intent, “which takes what the legislators meant collectively to say as decisive of the constitution,” and expectation intent, “which makes decisive what they expected to accomplish in saying what they did.”5 He places Scalia’s account of statutory interpretation comfortably in the former, and Scalia himself places his constitutional jurisprudence in the former as well. Dworkin does not let him so quickly. He contends that Scalia in adding in the time restrictions on the abstract moral principles is reading into the constitution new text.

“I said that if Scalia were a true semantic originalist, he would be assuming, in that argument, something that seems very odd: that the framers intended to say, by using the words “cruel and unusual,” that punishments generally thought cruel at the time they spoke were to be prohibited—that is, that they would have expressed themselves more clearly if they had used the phrase “punishments widely regarded as cruel and unusual at the date of this enactment” in place of the misleading language they actually used.”

Under this analysis, a text free of time dating qualifications cannot be interpreted to include time dating. Thus, the relevant question is not, “what was cruel and unusual in 1791,” but rather, “what is cruel and unusual.” Dworkin explains, judges must then, “sometimes ask themselves whether punishments the framers would not themselves have considered cruel—capital punishment, for example—nevertheless are cruel, and whether discriminations the framers themselves thought consistent with equal citizenship—school segregation, for example—are nevertheless a denial of equal protection of the laws.” Moral philosophy creeps into constitutional jurisprudence, and the robe must at once cover a judge and philosopher.

Oddly, Scalia fears those dual roles. He seems overly modest in accepting the role as historian over philosopher. Nonetheless, he substantiates his disagreement with Dworkin on three (fairly philosophical) grounds. He accepts Dworkin’s semantic and expectation intent distinction, but he argues that his time-dated understanding of the Bill of Rights is consistent with semantic intent. First, he argues that contextualizing the abstract language with the less abstract, more concretely “time-dated” language produces a time-dated Bill of Rights via the canon of construction “noscitur ex sociies” (a word is known by its companions). Second, again through contextualization, the Bill of Rights is seen to secure certain rights, and the passage of time cannot alter those rights. Third and finally, if we assume the original expectation of judicial review, then the Bill of Rights would, in context, be time dated as they would be applied immediately by the judiciary. Moreover, Scalia adds that the judiciary would not logically be the best home to the moral debate incumbent on Dworkin’s (and Tribe’s) approach.

As for the first charge, Scalia clearly overreaches. He employs the legal canon, “noscitur ex sociies,” which means simply that a word is know by its companions. This is commonly used to explain an ambiguity in a particular statute but contextualizing it with the neighboring language. Scalia argues that the concrete and specific nature of some amendments (e.g. the barring of quartering of soldiers) should carry over to the more abstract ones (namely, the first amendment), limiting their scope. First, clearly this argument, though, does not make the amendments time dated. Second, the fact that some amendments use precise language and other are more general is notable, in and of itself; this does not necessarily mean “scriber’s error,” nor does it justify the contextualization with the surrounding amendments. Finally, that legal axiom generally applies to language in a particular statute, but as each amendment stands alone in the first place, it may not even apply.

The second point Scalia raises regards the content of rights. In this, however, he misses the crux of Dworkin’s argument: the text does not specify the contents of the rights. To substantiate his claim—that the right contents are those seen in 1791—then he must rely on some external source of legitimacy for that claim—the context of the constitution does not provide that. There is a distinction between immutability and particularity. The application of a particular understanding of a right at a given time does not deny that rights immutability, nor does it mean that that understanding is the immutable right. Application of a particular understanding could merely demonstrate the best approximation of an abstract and immutable conception of a right. Scalia would likely respond that the legitimate and immutable understanding in a democracy is the one applied during the democratic process, but that argument hinges on his conception of democracy—a concept we will return to later. Thus, Scalia’s second response to Tribe and Dworkin is not as persuasive (or at least decisive) as he would like.

The third issue raised centers on the efficacy of an abstract right being defined in a democracy by the judiciary. Scalia argues that contours of the abstract principles in the Bill of Rights would be best explored in the legislature, not the judiciary: “… the argument that the repository of ultimate responsibility for determining the content of the rights (the judiciary) is a most unlikely barometer of evolving national morality but a traditional interpreter of “time-dated” laws, rests upon context as well.8” Here, though, Scalia mischaracterizes Dworkin’s argument. He is not calling for the Supreme Court to be the “barometer of evolving national morality,” but instead, for them to be the interpreter’s of the text of the constitution, a constitution which includes abstract principles—which may not be time-dated. Thus, he must explain why the principles must be time-dated, and instead of using context—as he promised to—he used tradition. Just because something has been done doesn’t make it right. To make a case for time-dated abstract principles, Scalia must look elsewhere. He has more work to do.

Thus, it seems on strict textual grounds, Scalia’s call for time-dated abstract principles is insufficient. Dworkin’s assessment of a lack of textual evidence substantiating originalism is persuasive. Nonetheless, this does not settle the issue. Dworkin could argue that the constitution itself may not require originalism, but Scalia could respond that democracy does. Moreover, Scalia insists upon the “rule of law,” and there may be a case for textualism in that concept. Nonetheless, we need a deeper story about how that law—in this case, the constitution—came to be, and then, whether that is legitimate. Moreover, if there are competing claims on the legitimizing force of originalism (or even the constitution) we will have to compare them for persuasiveness and attractiveness.

Scalia’s argument does, in fact, move past the text simply: it stands upon his conception of democracy, a proceduralist view. Dworkin needs a similar move: the constitution does not explicitly call for a “semantic intent” reading, so his analysis requires external substantiation as well. In the following section, I aim to show how both are fundamentally insufficient or, at least secondary, to competing views of democracy and democratic rights.

SCALIA’S DEMOCRACY

Scalia’s conception of democracy is fundamentally a proceduralist one. As Scalia observed in response to a question by Senator Howard Metzenbaum during his Senate confirmation hearings:

“[A] constitution has to have ultimately majoritarian underpinnings. To be sure a constitution is a document that protects against future democratic excesses. But when it is adopted, it is adopted by democratic process. That is what legitimates it…[I]f the majority that adopted it did not believe this unspecified right, which is not reflected clearly in the language, if their laws at the time do not reflect that that right existed, nor do the laws at the present date reflect that the society believes that right exists, I worry about my deciding that it exists.” ( – Hearings on the Nomination of Judge Antonin Scalia)

This means that the legitimating force to the constitution is the effectual majoritarian ratification by the people.10 We will use a basic account of majoritarism that says when the majority passes a bill, it becomes law, and all must abide by it. Thus, along with this majoritarism comes the rule of law. Then, relying on his earlier—and well-received— arguments for textual interpretation of democratic legislative, we can see primacy placed on the text of the constitution. Still, though, we are left with the issue of semantic versus expectation intent, and in this, though, he would likely have to slide into expectation intent to substantiate his claim, though. Scalia does not fully present an argument from majoritarianism to time-dated principles, but here I will try to rehearse one. Consider rights to be immutable abstract principles—say, the right against cruel and unusual punishment— but remember that there may be disagreements over the contents or different particular applications of them.

As we are discussing changing values over time, let’s consider a mathematical illustration. Consider the abstract principle that restricts cruel and usual punishment to be the function C(t). The input in this function is time and the value is the particular understanding of that principle at that time (we’ll use an arbitrary range 1-10). So C the function doesn’t change, just the input and output. Consider these (fictitious) results: C(1600) = 2; C(1791)=5; C(1863)=2; C(1964)=8. Now at all these times, people may say they know that the principle of cruel and unusual punishment is, but, of course, the values differ. This isn’t gleaning intent, but contextualizing the notion of a right. Another important point is that we may be able to put different conceptions into perspective—and even judge what is right and wrong—but at each given time, it is likely those people thought they were right: 2 was the right answer in 1600. Now, even though the right may be immutable, for a proceduralist, it only has force once enacted by a democratic process. It was one particular democratic process that legitimated the right, and so it would have to be and understanding of that right at that time. Although eras of democrats may agree on the function, the values differ depending on the time, and only the founding values—that is, the particular conception in 1791, in this case—apply.

Furthermore, the constitution, a democratically legitimized document, itself is then a limit on the legitimate exercise of democratic principles in the future. Fixed principles would mean tighter restrictions, and from the proceduralist view of democracy, tighter restrictions—that is, concrete rights—could have instrumental value to a better realization of that conception of democracy. Essentially, the constitution sets the rules for our democratic game, and Scalia would argue, you should have some fixed rules (which, of course, can be argued over) while playing the game. Thus, time-dating is necessary and legitimate: the principles would then ensure consistency with that initial democratic procedure and have the added benefit of predictability in terms of judicial interpretation. Thus, there would be democratic and practical benefits to time dating.

Pure procedure, though, does not grasp the essence of democracy. In Democratic Rights: The Substance of Self-Government, Corey Brettschneider explains (indirectly) Scalia’s misunderstanding. A procedural democratic theory justifies a democratic government not by its ends, but by its means: the process of decision-making is paramount. Scalia assumes a proceduralist approach is justified, hence legitimating, but it is hard to see how this works. Although somewhat sensible, this position demands further justification: as Brettschneider puts it, “ any good procedure, like any good theory, must have reasons and principles that support it.” A simple justification for a majoritarian view holds that it maximizes the possibility for inclusion in the public decision-making process. This aim, though, could be contradicted by the result of the procedure it justifies: a democratic body—without restrictions installed—could disenfranchise a voting bloc, and thus, fail its own purpose. Although a constitution itself could limit such an anti-democratic action, using majoritarian principles to legitimate that constitution would still suffer from a similar argument. Scalia does not provide an answer to the simple question, why majoritarianism, especially to the likely minority in any case. His account is unpersuasive. A justification for the rationale behind democratic principles is necessary.

DWORKIN’S DEMOCRACY

Dworkin does—to an extent. He provides a more rich account of democracy in his Justice in Robes, what he calls partnership democracy. “Democracy means self-government by all of the people acting together as members of a cooperative joint venture with equal standing.”12 Incumbent on his view, then, are certain conditions that all members of a democracy must be guaranteed: equal part in political life, equal stake in government, and a private sphere. With these conditions, Dworkin escapes the minority rights problem Scalia faced, and thus, he provides a much more attractive conception of democracy. Then, majoritarian is at least justified, and ratification of the constitution via those principles as instrumental to the realization of the three principles.13 Moreover, he holds that the Bill of Rights must be morally argued by jurists, and they must constantly tend to the democratic conditions.

Dworkin’s account, though, seems to disconnect jurisprudence from the textual interpretation, altogether, which is surprising, considering his insistence on “fidelity.” If the constitution is simply instrumental to the democratic outcomes—that is, outcomes consistent with the democratic conditions—then the particular procedure is relevant and the text of the constitution is superfluous. A jurist must simply make his case during judicial review with respect to the democratic conditions—which, one should add, could provide limited liberty—not the text of the constitution. Moreover, under this partnership democracy, one could argue that a jurist has an imperative to overturn parts of the constitution itself that she considered undemocratic or, at least, prohibiting the realization of a democratic condition.

Thus, with Dworkin we see an attractive conception of democracy, but an unrestrained theory of jurisprudence. Brettschneider notes this as well, qualifying Dworkin as an outcome-oriented theorist focused on the “equal status of citizens.” That singular focus, according to Brettschneider, oversimplifies democracy, which must incorporate some notion of the process involved as well. Moreover, by selling democracy as instrumental that one good—“equal status of citizens”—Dworkin (and other epistemic theorists) loses persuasiveness. Brettschneider groups various outcome-oriented theorists—some aiming for equality, others good or truth—into a set of “epistemic theorists” and then promptly brushes them aside. It may ground the basis for democracy, but that theory must ground itself: as Brettschneider puts it, “because, the epistemic theorist has appealed to non-democratic procedure-independent standard, she must demonstrate that this standard is more fundamental than democracy.”14 This is problematic. Finding and instating a consensus on a single view of the good or source of truth would be, according to Brettschneider, unlikely and, thus, undemocratic: the imposition of a particular view on non-believers would violate their right to self-rule. Moreover, it would be nearly impossible. On other level, we can see how in terms of legitimating governance structure, an approach focused completely on the outcome lacks clarity and precision in creating an actual governing body.

BRETTSCHNEIDER’S DEMOCRACY

Brettschneider proposes an alternative definition of democracy: value theory. He provides the noncontroversial definition of democracy: “citizens authorizing legitimate law through their participation in democratic procedures.”15 Value theory is more legitimate than other procedure-independent theories as it is grounded in the ideal of democracy, not an external conception. Implicit in this definition is the idea of self-rule. It is this status, or understanding, that is more important to the particular expression of self-rule, which incorporates, to an extent, Scalia’s intrinsic valuing of majoritarianism. In appreciating citizens as self-rulers, value theory demands the proper treatment of them, which tends to Dworkin’s concerns for democratic conditions. Thus—at least to the parties to our discussion—value theory seems the most attractive.

Now we must turn the issue back around: can value theory provide a sound basis for constitutional interpretation?

Brettschneider lays out a general approach to judicial interpretation that emphasizes democracy. Value theory promises both procedural and substantive ideals, but, interestingly, it recognizes the tension between them. When procedures produce legislation that threatens rights or when legislation is overturned to protect rights, there is what Brettschneider calls a “loss to democracy.” The courts must weigh the positive value of the exercise of political autonomy in the creation of legislation against the detriment to democratic values when determining whether to overturn legislation.

Brettschneider contends that the court somewhat recognizes value theory in its acceptance of substantive due process rights, as seen in the Texas sodomy case. Moreover, value theory presents a far more attractive, coherent, and deep conception of democracy, which seems to solve Scalia’s pure proceduralism problems. At the same time, if we consider ratification of the constitution a legitimate exercise of political autonomy, then a judge upholding value theory would have to respect the text of the document as well. Value theory promises a jurisprudence more liberal than Scalia’s and more conservative than Dworkin’s: there is democratic legitimacy and judicial restraint. The Bill of Rights would be seen as listing abstract principles—just as Scalia and Dworkin admit—but they would not be time-dated. They would embody the substantive democratic rights that are, as Scalia insists, immutable, and the particular application of the understanding of the rights would be guided by the court’s understanding of the democratic values, much like Dworkin’s hope for moral interpretation. This process would overcome the arbitrary nature of time-dated principle and, at the same time, ensure set guidance for jurists in judicial review.

Of course, changes remain: uncertainty over conflicting values, limited acceptance, and loose constitutionalism. If nothing else, by examining value theory, we are able to see the shortcomings of two (alleged) textualists and recognize the role democratic theory plays into jurisprudence. Let’s examine more closely of the role, then, of the court in value theory. A proceduralist could be seen as using the judiciary as simply a check on democratic procedures: the legislature is the truly democratic institution, the courts distant cousins. Value theory, though, makes the judiciary part of the family. The courts are not simply a curb on democracy, but a dispensation of it. A strong judiciary is a member of democracy, just as much as the legislature. When the courts knock down legislation, they are not necessarily impeding democracy, but sometimes they may be protecting (or even advancing) it. Scalia is right to worry about unguided judges, free to apply their will with no popular recourse. In value theory, though, there is a guide, democratic values, and they rightly assume that there will be disagreements on the contents of our substantive rights. But those disagreements and debates are encouraged: they’re how we become more perfect. Once if we accept democracy as the proper reflection of our right to self-rule, then there is no reason we should not continue to explore the concept, continue to ask questions about what it means to be free, to be democratic, to be self-rulers.

Government can be seen as an answer to the often messy question of collective action. There are some things people need together, but since that’s not easy to coordinate, we set up institutions to do so. Over time, the government’s focus and expectations developed — understandably — to a place where it was seen less as a coordinator and more as a service provider. This is what some call the vending machine model of government. My tax dollars in, a safe and well-kept community out.

But, as we’re all seeing now, that machine is profoundly broken. Buckling under the weight of the budget crisis and burdened with ever-increasing demands from its citizens, governments are unable to provide those services we’ve come to expect. The federal debt is in the trillions, many cities and states are nearing bankruptcy, and some already have. And so this analogy needs to change. Government can’t be a vending machine any longer; it must be a building block, something we use together to create the communities we hope to live in.

While this all may sound airy and abstract, in a real way, this already happening, just not as much in governance. Open source projects have captured this spirit: you build together, developing solutions for yourself and for the common good. Think of GitHub as an example. As an institution, it’s merely a platform for collaboration and development. It provides the tools, ranging from version control to hosting, that allow people to come together to build. And when they do, each is rewarded with not only the satisfaction of contribution, but also its public recognition. You help yourself while you help your peers, and along the way, you create value for the entire community by providing a useful service.

This is the model we at Code for America hope to enshrine in government, open sourcing not just its software, but its mechanics. We want to redefine the role of the citizens for a 21st century democracy, where they are working hand-in-hand with government to make it better. To do so, we must breakdown the barriers to entry and create new and easy ways to get involved. And that’s exactly what we’re trying to do with the CfA Fellowship program. We are developing a new kind of public service.

Inspired in part by Teach for America, the Code for America fellowship recruits the brightest minds of the web industry into public service to use their skills to solve core problems facing our communities. Through our one-year fellowship program, talented web developers, designers, and entrepreneurs leverage the power of the Internet to make governments more open and efficient. Right now, interest in both technology and civic issues is peaking, and a generation of young people are eagerly looking for ways to give back. We are building our fellowship program to give these emerging leaders a path into government and public service.

Our current focus is on cities, and partnering cities apply through a competitive process by describing a problem space for our fellows to tackle. Throughout the year, the cities and our fellows work together, along with a team of industry leaders and thinkers, researching, brainstorming, and even co-developing the solution. But the projects are only part of our goal; we’re also developing leaders. We couple the project development with professional development, networking, and mentoring, so the fellows are not only civic-minded but also successful after the fellowship.

For our inaugural 2011 program, we’re working with Boston, Philadelphia, Seattle, and Washington. To take on these projects, we chose 20 fellows out of our impressive applicant pool of more than 360 to come on board in in January. But those fellows are only a small fraction of the team we’ll need to succeed in the year and more broadly.

How can you help?

Join CfA Labs Volunteer Corp: To help on our 2011 projects and a host of other issues we’re seeing in cities, we’re recruiting coders and designers who want to volunteer, but don’t have a year to give. There is a lot of work to do, and we can use any support you’ve able to give. Join the discussion group.

Get Your City to Code for America: We just opened up the application process for our 2012 City Program, and we are actively seeking local governments who want to engage with our fellowship program. City representatives can begin the application process online, and for everyone else, we’ve also put together some tools to get their attention and make some noise in our Citizen Action Center.

Get involved however you can. Together, we can code the next chapter of American history.