The Wisdom of the First Amendment
Milton and Rose Friedman, Jesus of Nazareth, MLK Jr., and the Founding Fathers
In the final chapter of their book Free to Choose: A Personal Statement, Milton and Rose Friedman offer suggestions for “what we can do” to improve government. They write
WHAT WE CAN DONeedless to say, those of us who want to halt and reverse the recent trend should oppose additional specific measures to expand further the power and scope of government, urge repeal and reform of existing measures, and try to elect legislators and executives who share that view. But that is not an effective way to reverse the growth of government. It is doomed to failure. Each of us would defend our own special privileges and try to limit government at someone else's expense. We would be fighting a many-headed hydra that would grow new heads faster than we could cut old ones off.
On top of “repeal and reform,” they recommend “package deals” and “self-denying ordinances.” What do they mean?
Our founding fathers have shown us a more promising way to proceed: by package deals, as it were. We should adopt self-denying ordinances that limit the objectives we try to pursue through political channels. We should not consider each case on its merits, but lay down broad rules limiting what government may do.
The merit of this approach is well illustrated by the First Amendment to the Constitution. Many specific restrictions on freedom of speech would be approved by a substantial majority of both legislators and voters. A majority would very likely favor preventing Nazis, Seventh-Day Adventists, Jehovah's Witnesses, the Ku Klux Klan, vegetarians, or almost any other little group you might name from speaking on a street corner.
So what is the wisdom of the First Amendment?
The wisdom of the First Amendment is that it treats these cases as a bundle. It adopts the general principle that "Congress shall make no law. . . abridging the freedom of speech"; no consideration of each case on its merits. A majority supported it then and, we are persuaded, a majority would support it today. Each of us feels more deeply about not having our freedom interfered with when we are in the minority than we do about interfering with the freedom of others when we are in a majority—and a majority of us will at one time or another be in some minority.
We need, in our opinion, the equivalent of the First Amendment to limit government power in the economic and social area—an economic Bill of Rights to complement and reinforce the original Bill of Rights.
What problem do they see with the “repeal and reform” legislative process that the Constitutional Amendment process overcomes?
They continue.
The incorporation of such a Bill of Rights into our Constitution would not in and of itself reverse the trend toward bigger government or prevent it from being resumed—any more than the original Constitution has prevented both a growth and a centralization of government power far beyond anything the framers intended or envisioned. A written constitution is neither necessary nor sufficient to develop or preserve a free society.
So what else do we need besides textual improvements to the Constitution?
Although Great Britain has always had only an "unwritten" constitution, it developed a free society. Many Latin American countries that adopted written constitutions copied from the United States Constitution practically word for word have not succeeded in establishing a free society. In order for a written—or for that matter, unwritten—constitution to be effective it must be supported by the general climate of opinion, among both the public at large and its leaders. It must incorporate principles that they have come to believe in deeply, so that it is taken for granted that the executive, the legislature, and the courts will behave in conformity to these principles. As we have seen, when that climate of opinion changes, so will policy.
So we actually have to believe in the text of Constitution for it to work.
Nonetheless, we believe that the formulation and adoption of an economic Bill of Rights would be the most effective step that could be taken to reverse the trend toward ever bigger government for two reasons: first, because the process of formulating the amendments would have great value in shaping the climate of opinion; second, because the enactment of amendments is a more direct and effective way of converting that climate of opinion into actual policy than our present legislative process.
This last part is my favorite. The process of formulating the amendments helps us learn; it shapes public opinion. Why don’t more people take up the Friedman’s strategy?
If you’re interested, here is a little more on this book.
It’s based on the ground-breaking PBS television series featuring Milton Friedman, Nobel Prize-winning economist. You can watch the entire 1980 TV series right here, for free. It consists of 10 one-hour programs in which Friedman provides a short introductory monologue, followed by a guided discussion with a panel of experts. So it resembles a college course—with lecture followed by discussion; or similarly, like a sophisticated TV talk show, only that Oprah and Donahue are replaced by Friedman. In his autobiography Friedman states that the making of this show—or actually its precursor, Milton Friedman Speaks—were the most stressful moments in his life.
The description for the 1980 TV series is
These programs, filmed on location around the world, have helped millions of people understand the close relationship between the ideas of human freedom and economic freedom. The interaction between those ideas has created in the U.S. the richest and freest society the world has ever known. Milton Friedman sees this success threatened by the tendency in the last few decades to assume that government intervention is the answer to all problems. In these programs, which first aired on January 11, 1980, Dr. Friedman focuses on basic principles. How do markets work? Why has socialism failed? Can government help economic development? The 1980 version consists of 10 one-hour programs
And an updated 1990 series is right here. It stars Arnold Schwarzenegger, Ronald Reagan and David Friedman. If you’re familiar with David Friedman’s book The Machinery of Freedom: Guide to a Radical Capitalism, you might remember that David starts his book off with the ethos of “being left alone.” How is “being left alone” similar to the wisdom of the First Amendment described above?
And the description for the 1990 series is
In 1990, Free To Choose was updated to five episodes. Each episode features an introduction by a well-known figure followed by a documentary. All episodes include an updated discussion forum that immediately follows the documentary. Episodes 1, 2, 4 and 5 include documentaries originally produced for the 1980 version. Episode 4 was previously titled "What's Wrong With Our Schools?"
For those completely new to classical liberal thought, I recommend watching the TV series first, then reading the book.
The remainder of the excerpt that I started this post with is given below.
Given that the tide of opinion in favor of New Deal liberalism has crested, the national debate that would be generated in formulating such a Bill of Rights would help to assure that opinion turned definitely toward freedom rather than toward totalitarianism. It would disseminate a better understanding of the problem of big government and of possible cures.
The political process involved in the adoption of such amendments would be more democratic, in the sense of enabling the values of the public at large to determine the outcome, than our present legislative and administrative structure. On issue after issue the government of the people acts in ways that the bulk of the people oppose. Every public opinion poll shows that a large majority of the public opposes compulsory busing for integrating schools—yet busing not only continues but is continuously expanded. Very much the same thing is true of affirmative action programs in employment and higher education and of many other measures directed at implementing views favorable to equality of outcome. So far as we know, no pollster has asked the public,"Are you getting your money's worth for the more than 40 percent of your income being spent on your behalf by government?" But is there any doubt what the poll would show?
For the reasons outlined in the preceding section, the special interests prevail at the expense of the general interest. The new class, enshrined in the universities, the news media, and especially the federal bureaucracy, has become one of the most powerful of the special interests. The new class has repeatedly succeeded in imposing its views, despite widespread public objection, and often despite specific legislative enactments to the contrary.
The adoption of amendments has the great virtue of being decentralized. It requires separate action in three-quarters of the states. Even the proposal of new amendments can bypass Congress: Article V of the Constitution provides that the "Congress... on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments." The recent movement to call a convention to propose an amendment requiring the federal budget to be balanced was backed by thirty states by mid-1979. The possibility that four more state legislatures would join the move, making the necessary two-thirds, has sown consternation in Washington-precisely because it is the one device that can effectively bypass the Washington bureaucracy.
Where does the wisdom of the First Amendment come from? Does anyone see a connection to Christian doctrine?
Here’s a short excerpt from Larry Siedentop’s book Inventing the Individual: The Origins of Western Liberalism which attempts to ascribe the origins of individuality—the idea of the individual and the fact that we have individual liberty—to Judeo-Christian doctrine. He writes
One of these movements was the Jesus movement. Jesus of Nazareth seems to have begun as a disciple of one who later became known as John the Baptist. But Jesus came into his own and acquired followers, who accompanied him as he preached in the Galilean countryside.
Just what did he preach? As far as we can tell, he preached repentance and the imminent end of the world. He spoke of God as his ‘father’ who loved all his children, not least the socially marginal. Those who truly repented of their sins could hope to enter the Kingdom of God.
They should become like children, showing charity and trusting in God's mercy.
But surprisingly Siedentop doesn’t write much about Jesus; out of 365 pages, only two-dozen mention Jesus.
Another path we can take is to ask, how is the wisdom of the First Amendment similar to the strategy of non-violent resistance practiced by Martin Luther King, Jr.?
What exactly is the strategy of non-violent resistance? Where does it come from? Do we agree on what it is?
Let’s talk more about that next time.