According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When the time came to apply these principles to concrete situations, however, ideological differences were bound to reemerge. Thus, the First Amendment and the Bill of Rights have always been subject to competing interpretations rooted in differing political, social, and cultural views. It follows that constitutional interpretation is best understood not as monological but as dialectical: the meaning of the Constitution emerges from a struggle between opposing positions, as well as from an effort to reconcile these positions within a more comprehensive view. The Essay then applies this dialectical approach to the classic cultural conflict over free expression - the problem of pornography. After reviewing the ongoing debate between conservatives, liberals, and radical feminists, the Essay seeks to bring these apparently incommensurable perspectives together within a common framework. This function can best be performed by a comprehensive theory of rights - a theory that is broad enough to encompass not only the rights of individuals, but also the rights of communities (which are central to the conservative view) and the rights of groups (which are important to the feminist position). Applying this analysis, the Essay concludes that individuals should enjoy broad freedom to make and view sexually oriented materials. But this protection should not extend to material that invades the rights of others. In particular, violent pornography may be banned because it violates the rights of women as a group, especially their right to recognition as human beings. Violent pornography also infringes the rights of the community as a whole, by undermining the mutual recognition that constitutes the community. In addition, the society should have the right to exclude pornography from the public sphere, to shield children from such material, and to decline to subsidize such material. Contrary to the Supreme Court's traditional doctrine, however, the community should have no general power to ban material that it considers to be obscene, for such a power is inconsistent with the autonomy of individuals to determine the content of their own thought and expression. In these ways, the rights-based approach seeks to recognize and incorporate the core values of each position: the liberal focus on autonomy, the feminist demand for equality, and the conservative concern for community.
Steven J. Heyman,
Ideological Conflict and the First Amendment,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/303