Justice Breyer, in his dissent in McCutcheon this morning:
The Framers...both...requir[ed] frequent elections to federal office, and...enact[ed] a First Amendment that would facilitate a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." J. Wilson, Commentaries on the Constitution of the United States of America 30–31 (1792). This "chain" would establish the necessary "communion of interests and sympathy of sentiments" between the people and their representatives, so that public opinion could be channeled into effective governmental action. The Federalist No. 57, p. 386 (J. Cooke ed. 1961) (J. Madison).... Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.
Actually, the framers devised the constitutional structure to prevent public opinion from being channeled into effective government action. One cannot honestly read The Federalist without understanding that the system was designed in order to ensure that public opinion would only be translated into government action when it had been sufficiently challenged, weighed, and considered for its correspondence to principles of justice. "Collective speech" was a part, but only a part, of this process. Had every Athenian been a Socrates, every assembly would still have been a mob, the Federalist tells us. If the First Amendment had been designed to help discover the Rousseauian General Will (as Breyer implies in another paragraph), it would not have taken the form "Congress shall make no law...abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and petition the government for a redress of grievances." For one thing, the petition right would then be redundant to the speech right. For another, this provision protects "the" right of speech--not some newfangled "collective speech" notion established by the Constitution for the purpose of furthering democratic interests. Most importantly, the "chain of communication" was established to bind down the political process--to restrain it, not to animate it--to protect individuals, not the collective. One simply cannot read the Federalist, or any other writing of the framing period, and not understand this.
In The Conscience of The Constitution, I argue that Justice Breyer is at the forefront of the Progressive effort to re-design protections for the individual's right to free speech into a privilege government gives us when such a privilege suits the collective. Here we see it right from the horse's mouth.
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