David Bentley Hart comments on Snyder v. Phelps, the Court decision that found in favor of Fred Phelps and the Westboro Baptist Church, whose congregation terrorized the family of a soldier who died in the line of duty at his funeral. These are the people who show up at various places with "God hates fags" signs (among others).
The Court ruled 8-1 that the First Amendment protected their behavior. Hart begs to differ:
No competent historian of American jurisprudence could believe for an instant that the authors of the Constitution of the United States ever envisaged an age in which enumerated liberties would be mistaken as writs of absolute license. The guarantee of free speech was certainly never intended as a shelter for any abuse whatsoever of the liberty it granted; it certainly was not meant to protect behaviors other than the unhindered expression of political or philosophical opinion; and it certainly was not meant to prevent the application of decent public prudence in determining what is or is not an intrinsically offensive manner of expressing that opinion.Of course, the intention of the Founders is not necessarily dispositive in Constitutional interpretation, and Hart acknowledges that, and then goes on to wonder what would happen if we interpreted the 2nd Amendment they way that the Court has interpreted the 1st:
I mean, one can believe that the Constitution truly guarantees an individual right to keep and bear arms while still believing that a person who likes to spend his days on his porch with a hunting rifle menacingly aimed at his neighbor’s children can be restrained from doing so without his constitutional liberty being thereby abridged. But I may be wrong.He then makes an interesting observation about freedom, based on a Hegelian principle:
What I am quite certain of, however, is that Hegel was essentially right when he pointed out that freedom is a concrete and practical condition. That is, we are free not merely when our wills are subject to no restraint, but when we inhabit a civil society that places quite inviolable boundaries around the areas in which the will operates.In other words, not only is freedom not inconsistent with restraint, but it requires it.
... More to the point, though, freedom is also a communal condition. The measure of how free we truly are is how free we are to live together in communities of shared moral expectation and responsibility, as long as these are just and lawful communities, without fearing the intrusions of those who have no regard for us.
And can we note (in keeping with this week's "Barbara Forrest is not a logician" theme) that, according to the Barbara Forrest Fallacy, which dictates that anyone who thinks that a position is legally permissible also must believe in that position, we can conclude from the Court's decision that eight of the justices "hate fags"?
Read the rest here.