I’d also recommend works by those who’ve lived through the systematic suppression of their speech - writers like Havel’s The power of the powerless, Milosz’s The captive mind, Grossman‘s Life and fate, Solzhenitsyn, etc
I was impressed that John Stuart Mill’s conception of liberty (in "On Liberty") is not merely analogous to American liberty in the Fifth and Fourteenth Amendments. It is analogous to American sovereignty. Mill prominently highlighted how our “liberty,” “independence” and “sovereignty” were secured by the Fourteenth Amendment (and every amendment in our Bill of Rights, and even our entire Constitution) so that the sovereignty of the people is not only a public power (sovereignty over all our public servants), but also a private right (our sovereignty over ourselves as individuals).
"[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
That same paragraph is well worth considering more fully:
"[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any [member of society] is self-protection [of another member of society or society, generally]. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [A person’s] own good, either physical or moral, is not a sufficient warrant. [A person] cannot rightfully be compelled to do or forbear [anything merely] because it will be better for him to do so, because it will make him happier, [or] because, in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil [punishment or other injury] in case he do otherwise. To justify that [imposing any punishment on a person], the conduct from which it is desired to deter him must be calculated to [prevent some] evil [being done] to someone else. The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
You chose wisely Greg, particularly by placing Jacob Mchangama’s book in first place. He is the reason that I became a FIRE member. I chanced upon him while at the gym running on the treadmill. He was on a panel discussing (or debating) free speech. In any event, I was blown away by his calm demeanor and erudition. I looked him up when I got home and discovered his podcast Clear and Present Danger.
I have listened to it several times, particularly The Totalitarian Temptation episodes. Obviously, I needed to read the book, several copies of which I have given to friends.
He writes in a style that is easily readable by anyone, unlike Mill, who is beyond the reading skills of the average person today.
Thank you for the list. I look forward to expanding my understanding.
For years, I've been studying our Constitution to better understand how and why it secures our freedom of expression, communication and association. To this day, Clear and Present Danger is probably my favorite podcast. The episodes that were most insightful were about the nature of democracy and the relationship between democracy and the freedom of expression, communication and association in the Golden Age of Athens (Nos. 1 and 4) and in the American colonies and the early United States (Nos. 12 and 21-24).
The one episode that brought them all together was No. 24 featuring Professor Stephen Solomon, author of another book that is very well worth reading ("Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech"). At the end of Episode No. 24, Professor Solomon revealed that our freedom of expression, communication and association flows from the same source as the freedom in ancient Athens: the sovereignty of the people.
Professor Solomon highlighted a crucial source for the insight that the sovereignty of the people is the source of our freedom of expression, communication and association: James Madison's Report of 1800 (https://founders.archives.gov/documents/Madison/01-17-02-0202). In connection with the controversy over the Sedition Act of 1798 (in which employees of all 3 branches of the U.S. government (including SCOTUS Justice Samuel Chase) engaged in repression of expression in violation of our Constitution, Madison correctly accused such purported public servants of "criminal degeneracy." Madison also emphasized how differences in sovereignty (in the unwritten British constitution vs. the written U.S. Constitution) determined the differences in the rights and freedoms secured by our First Amendment.
In Britain and in the colonies, the sovereignty of Parliament determined not only the freedom of speech of Parliament, but also the extremely inferior rights of people as mere "subjects" of the people in power. In striking contrast, in the U.S. the sovereignty of the people over all our public servants was established by our written Constitution. Our sovereignty and our Constitution placed our freedom of expression, communication and association above the power of all our representatives in any level government, as the First Amendment emphasized regarding all parts of national government.
"In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate [the king and all his judges]. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or in their own language, is omnipotent."
"In the United States, the case is altogether different. The people, not the government, possess the absolute [highest level or actual] sovereignty [over our representatives in public service]. The legislature, no less than the executive [and the judicial], is under limitations of power [by the Constitution written and ratified by the People for the People]. . . . Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press, requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws."
"The state of the press, therefore, under the common law, can not [ ] be the standard of its freedom, in the United States." "[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of t[he state constitutions, and particularly by our own [U.S. Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable. . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
Chief Justice Marshall writing for SCOTUS in 1803 in Marbury v. Madison emphasized very similar principles under very similar circumstances. Again, all 3 branches of national government had colluded to purport to make and execute a law (empowering and governing the judiciary) that violated our Constitution. So SCOTUS emphasized that "in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States [enacted by our public servants, so those laws] only which shall be made in pursuance of the constitution, have that rank [of being part of the supreme law of the land]. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle [that is] essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as [all] other departments [and judges and all other public servants], are bound by that instrument," i.e., our Constitution.
"Certainly all those who have framed written constitutions" (especially constitutions that were ratified by the People) "contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." Any "act of the legislature" (any purported law purportedly granting the President unconstitutional powers) "repugnant to the constitution, is void." So any "act of" any other purported public servant "repugnant to the constitution, is void."
"The constitution is" necessarily the "superior, paramount law, unchangeable by ordinary means," i.e., by our public servants. So "the constitution is to be considered, in court, as a paramount law," and "courts" cannot "close their eyes on the constitution, and see only [some other purported] law." By the People by our Constitution, "[t]he government of the United States has been emphatically termed a government of laws, and not of men.”
So in 1964, SCOTUS in New York Times Co. v. Sullivan unanimously echoed (and quoted) Madison to emphasize how the sovereignty of the people determined our freedom of expression and communication regarding our all our public servants at any level of public service. SCOTUS emphasized that "the great controversy over the Sedition Act of 1798 [ ] first crystallized a national awareness of the central meaning of the First Amendment."
More importantly, SCOTUS re-emphasized that our freedom of thought, expression, communication and association flows from our sovereignty. Our Constitution established that all public officials are “public servants” and they cannot (logically or lawfully) enjoy “an unjustified preference" in the freedom of expression and communication "over the public they serve.” Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty [above any national or state government claiming sovereignty].’ [Moreover, our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown [actually, Parliament] was sovereign and the people were [mere] subjects." "[U]nder such different circumstances" it is both "natural and necessary" that we enjoy "a different degree of freedom in the use of the [printing] press." In our “Republican Government,” the “censorial power is” naturally and necessarily generally “in the people over the Government, and not in the Government over the people.”
I would be very much interested in any writing (including in any book) that supports or is similar to the foregoing.
Beautiful work Mr. Jordan. Have you read the late Gordon S. Wood? Part III of his The Creation of the American Republic is titled The People Against the Legislatures and deals with The Constitution as Fundamental Law. Professor Wood can easily be mined to find obscure sources unlikely to be found elsewhere. The Radicalism of the American Revolution is also a fine book that I would recommend.
Guy, you're right. In "The Creation of the American Republic," Wood has a good chapter on "Sovereignty of the People" right after the chapter on "Conventions of the People." The conventions were exercises of both sovereignty and the freedom of expression, communication and association. The first and last words of our original Constitution made the connection perfectly clear. "We the People of the United States" did on June 21, 1788 "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves and our Posterity." "[T]he Establishment of this Constitution" was accomplished by "[t]he Ratification of the Conventions” (specially chosen for that particular purpose by the people) “of nine States."
That's kind of you. I'm merely standing on the shoulders of giants.
Yes, I consider Gordon Wood to have been another such giant. Coincidentally, soon I will start again doing exactly what you suggested: mining the "The Creation of the American Republic" for more insights. I've read parts of it, but I want to re-read all of it. I was especially impressed with his discussion of the meaning of "convention." I also very highly recommend his much more succinct and much more recent "Power and Liberty: Constitutionalism in the American Revolution." I've read it once and I'll re-read it soon.
I also agree re: Wood's "The Radicalism of the American Revolution." I never understood the Declaration of Independence as well as I did after I read that book (and highlighted all the references to dependence or independence).
The one thing that I thought was missing from Wood's writing was a more fulsome discussion of how our Constitution established the sovereignty of the people. Regarding that subject, my eyes were opened by Montesquieu in 1754, SCOTUS Justice James Wilson in Chisholm v. Georgia in 1793, James Madison in the 1790's and 1800 (writing about sovereignty, expression, popular opinion) and SCOTUS in New York Times Co. v. Sullivan.
Back in 1754 in “The Spirit of the Laws” Montesquieu highlighted (and many of the people who wrote and ratified our Constitution and the first 10 amendments understood) that the right to vote isn’t about any mere right, much less about mere voting. The right to vote is most essentially about sovereign power. Suffrage is the quintessential speech of sovereigns under our Constitution.
“In a democracy the people are in some respects the sovereign, and in others the subject” (of the laws). “The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people].” “[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.”
The “exercise of sovereignty” by citizens is most clearly “by their suffrages, which [is an expression of citizens’ sovereign] will: [by voting and other exercises of the freedom of expression] the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government” so it is “important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given.”
In Chisholm, Justice Wilson (like Blackstone) repeatedly emphasized that any sovereign power that purports to have absolute power is despotic and arbitrary (so it cannot exist under our Constitution):
"In despotic Governments, the Government has usurped, in a similar manner, both upon the State and the people: Hence all arbitrary doctrines and pretentions concerning the Supreme, absolute, and incontrolable, power of Government."
"As described by [Blackstone], the British is a despotic Government. It is a Government without a people. In that Government, as so described, the Sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere."
Our entire Constitution is devoted to dividing, diversifying and diffusing power to prevent despotic exercises of power. The first and most important separation of powers in our Constitution is between the sovereign people and all our public servants. See, e.g., the dissenting opinion in Alden v. Maine, 527 U. S. 706 (1999) discussing some of the relevant statements in Chisholm v. Georgia (1793) by Chief Justice John Jay, Justice James Wilson and Edmund Randolph. Simply put, our freedom of speech (including our right to vote) is a vital aspect of the sovereignty of the people.
In Chisholm, Justice Wilson (one of the most enlightened and influential of the Framers of our Constitution) expressly revealed that the most important concept in our Constitution is only implicit in its text and structure: “the term SOVEREIGN” was not used anywhere in our “Constitution.” More importantly, the Preamble is the “one place where it could have been used with propriety.” Those “who ordained and established” our “Constitution” clearly could “have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” The first and foremost separation of powers in our Constitution is between the sovereign people and all public servants. So, in our Constitution “The PEOPLE of the United States’ are the first personages introduced” (by the Preamble).
I have a number of these on my shelf, now also including McHangama and Kosseff’s new book The Future of Free Speech (thanks to FIRE!). I now have more to add. 🙏
For a couple more conservative selections, which point out the weaknesses of Mill and his acolytes, try Francis Canavan's Freedom of Expression: Purpose as Limit, and David Lowenthal's No License for Liberty. For an application of Canavan's use of classic SCOTUS dicta--much of it semi-Millian--in articulating a "purpose" for free press and free speech rights, see my just-published essay, "The Purpose of Open Journalism and Free Speech." https://pomocon.substack.com/p/the-purpose-of-open-journalism-and This essay is preparing the ground for a fuller attack to come on the "conservative" and "libertarian" participation in one of the greatest journalistic Suppression campaigns ever, the present one against the widespread covid-vax-harms story.
I distinguish suppression from First-amendment-violative censorship. Would love to hear any of your far-more-experienced-in-this-area thoughts on my approaches, or Canavan's.
I just read part of your piece. That's great how you highlighted Tocqueville highlighting how expression, communication and association are intimately related: "newspapers make associations, and associations make newspapers."
If you haven't read it, you might also like "Affairs of Honor: National Politics in the New Republic" by Yale professor Joanne Freeman in 2001. It emphasizes the same vital principle using different sources and insights.
Interesting question. I mostly agree. However, it might be less about agreeableness as defined in personality tests, and more about conflict avoidance and fear of the social and economic consequences of judgment from others. (Defending free speech publicly can make not only you but also your loved ones into lightning rods. Plus, single moms and lower income women can't risk losing their job over unpopular views). I suspect that the gender difference will exist as long as we expect women to shoulder most of the responsibility for maintaining interpersonal relationships.
I suspect you'll find these women instead advocating and exercising free speech in private and donating to FIRE.
I’d also recommend works by those who’ve lived through the systematic suppression of their speech - writers like Havel’s The power of the powerless, Milosz’s The captive mind, Grossman‘s Life and fate, Solzhenitsyn, etc
Mill's On Liberty is in the public domain and you can read it for free on Wikisource.
https://en.wikisource.org/wiki/On_Liberty
I was impressed that John Stuart Mill’s conception of liberty (in "On Liberty") is not merely analogous to American liberty in the Fifth and Fourteenth Amendments. It is analogous to American sovereignty. Mill prominently highlighted how our “liberty,” “independence” and “sovereignty” were secured by the Fourteenth Amendment (and every amendment in our Bill of Rights, and even our entire Constitution) so that the sovereignty of the people is not only a public power (sovereignty over all our public servants), but also a private right (our sovereignty over ourselves as individuals).
"[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
That same paragraph is well worth considering more fully:
"[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any [member of society] is self-protection [of another member of society or society, generally]. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [A person’s] own good, either physical or moral, is not a sufficient warrant. [A person] cannot rightfully be compelled to do or forbear [anything merely] because it will be better for him to do so, because it will make him happier, [or] because, in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil [punishment or other injury] in case he do otherwise. To justify that [imposing any punishment on a person], the conduct from which it is desired to deter him must be calculated to [prevent some] evil [being done] to someone else. The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
You chose wisely Greg, particularly by placing Jacob Mchangama’s book in first place. He is the reason that I became a FIRE member. I chanced upon him while at the gym running on the treadmill. He was on a panel discussing (or debating) free speech. In any event, I was blown away by his calm demeanor and erudition. I looked him up when I got home and discovered his podcast Clear and Present Danger.
I have listened to it several times, particularly The Totalitarian Temptation episodes. Obviously, I needed to read the book, several copies of which I have given to friends.
He writes in a style that is easily readable by anyone, unlike Mill, who is beyond the reading skills of the average person today.
Thank you for the list. I look forward to expanding my understanding.
For years, I've been studying our Constitution to better understand how and why it secures our freedom of expression, communication and association. To this day, Clear and Present Danger is probably my favorite podcast. The episodes that were most insightful were about the nature of democracy and the relationship between democracy and the freedom of expression, communication and association in the Golden Age of Athens (Nos. 1 and 4) and in the American colonies and the early United States (Nos. 12 and 21-24).
The one episode that brought them all together was No. 24 featuring Professor Stephen Solomon, author of another book that is very well worth reading ("Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech"). At the end of Episode No. 24, Professor Solomon revealed that our freedom of expression, communication and association flows from the same source as the freedom in ancient Athens: the sovereignty of the people.
Professor Solomon highlighted a crucial source for the insight that the sovereignty of the people is the source of our freedom of expression, communication and association: James Madison's Report of 1800 (https://founders.archives.gov/documents/Madison/01-17-02-0202). In connection with the controversy over the Sedition Act of 1798 (in which employees of all 3 branches of the U.S. government (including SCOTUS Justice Samuel Chase) engaged in repression of expression in violation of our Constitution, Madison correctly accused such purported public servants of "criminal degeneracy." Madison also emphasized how differences in sovereignty (in the unwritten British constitution vs. the written U.S. Constitution) determined the differences in the rights and freedoms secured by our First Amendment.
In Britain and in the colonies, the sovereignty of Parliament determined not only the freedom of speech of Parliament, but also the extremely inferior rights of people as mere "subjects" of the people in power. In striking contrast, in the U.S. the sovereignty of the people over all our public servants was established by our written Constitution. Our sovereignty and our Constitution placed our freedom of expression, communication and association above the power of all our representatives in any level government, as the First Amendment emphasized regarding all parts of national government.
"In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate [the king and all his judges]. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or in their own language, is omnipotent."
"In the United States, the case is altogether different. The people, not the government, possess the absolute [highest level or actual] sovereignty [over our representatives in public service]. The legislature, no less than the executive [and the judicial], is under limitations of power [by the Constitution written and ratified by the People for the People]. . . . Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press, requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws."
"The state of the press, therefore, under the common law, can not [ ] be the standard of its freedom, in the United States." "[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of t[he state constitutions, and particularly by our own [U.S. Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable. . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
Chief Justice Marshall writing for SCOTUS in 1803 in Marbury v. Madison emphasized very similar principles under very similar circumstances. Again, all 3 branches of national government had colluded to purport to make and execute a law (empowering and governing the judiciary) that violated our Constitution. So SCOTUS emphasized that "in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States [enacted by our public servants, so those laws] only which shall be made in pursuance of the constitution, have that rank [of being part of the supreme law of the land]. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle [that is] essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as [all] other departments [and judges and all other public servants], are bound by that instrument," i.e., our Constitution.
"Certainly all those who have framed written constitutions" (especially constitutions that were ratified by the People) "contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." Any "act of the legislature" (any purported law purportedly granting the President unconstitutional powers) "repugnant to the constitution, is void." So any "act of" any other purported public servant "repugnant to the constitution, is void."
"The constitution is" necessarily the "superior, paramount law, unchangeable by ordinary means," i.e., by our public servants. So "the constitution is to be considered, in court, as a paramount law," and "courts" cannot "close their eyes on the constitution, and see only [some other purported] law." By the People by our Constitution, "[t]he government of the United States has been emphatically termed a government of laws, and not of men.”
So in 1964, SCOTUS in New York Times Co. v. Sullivan unanimously echoed (and quoted) Madison to emphasize how the sovereignty of the people determined our freedom of expression and communication regarding our all our public servants at any level of public service. SCOTUS emphasized that "the great controversy over the Sedition Act of 1798 [ ] first crystallized a national awareness of the central meaning of the First Amendment."
More importantly, SCOTUS re-emphasized that our freedom of thought, expression, communication and association flows from our sovereignty. Our Constitution established that all public officials are “public servants” and they cannot (logically or lawfully) enjoy “an unjustified preference" in the freedom of expression and communication "over the public they serve.” Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty [above any national or state government claiming sovereignty].’ [Moreover, our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown [actually, Parliament] was sovereign and the people were [mere] subjects." "[U]nder such different circumstances" it is both "natural and necessary" that we enjoy "a different degree of freedom in the use of the [printing] press." In our “Republican Government,” the “censorial power is” naturally and necessarily generally “in the people over the Government, and not in the Government over the people.”
I would be very much interested in any writing (including in any book) that supports or is similar to the foregoing.
Beautiful work Mr. Jordan. Have you read the late Gordon S. Wood? Part III of his The Creation of the American Republic is titled The People Against the Legislatures and deals with The Constitution as Fundamental Law. Professor Wood can easily be mined to find obscure sources unlikely to be found elsewhere. The Radicalism of the American Revolution is also a fine book that I would recommend.
Guy, you're right. In "The Creation of the American Republic," Wood has a good chapter on "Sovereignty of the People" right after the chapter on "Conventions of the People." The conventions were exercises of both sovereignty and the freedom of expression, communication and association. The first and last words of our original Constitution made the connection perfectly clear. "We the People of the United States" did on June 21, 1788 "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves and our Posterity." "[T]he Establishment of this Constitution" was accomplished by "[t]he Ratification of the Conventions” (specially chosen for that particular purpose by the people) “of nine States."
That's kind of you. I'm merely standing on the shoulders of giants.
Yes, I consider Gordon Wood to have been another such giant. Coincidentally, soon I will start again doing exactly what you suggested: mining the "The Creation of the American Republic" for more insights. I've read parts of it, but I want to re-read all of it. I was especially impressed with his discussion of the meaning of "convention." I also very highly recommend his much more succinct and much more recent "Power and Liberty: Constitutionalism in the American Revolution." I've read it once and I'll re-read it soon.
I also agree re: Wood's "The Radicalism of the American Revolution." I never understood the Declaration of Independence as well as I did after I read that book (and highlighted all the references to dependence or independence).
The one thing that I thought was missing from Wood's writing was a more fulsome discussion of how our Constitution established the sovereignty of the people. Regarding that subject, my eyes were opened by Montesquieu in 1754, SCOTUS Justice James Wilson in Chisholm v. Georgia in 1793, James Madison in the 1790's and 1800 (writing about sovereignty, expression, popular opinion) and SCOTUS in New York Times Co. v. Sullivan.
Back in 1754 in “The Spirit of the Laws” Montesquieu highlighted (and many of the people who wrote and ratified our Constitution and the first 10 amendments understood) that the right to vote isn’t about any mere right, much less about mere voting. The right to vote is most essentially about sovereign power. Suffrage is the quintessential speech of sovereigns under our Constitution.
“In a democracy the people are in some respects the sovereign, and in others the subject” (of the laws). “The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people].” “[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.”
The “exercise of sovereignty” by citizens is most clearly “by their suffrages, which [is an expression of citizens’ sovereign] will: [by voting and other exercises of the freedom of expression] the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government” so it is “important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given.”
In Chisholm, Justice Wilson (like Blackstone) repeatedly emphasized that any sovereign power that purports to have absolute power is despotic and arbitrary (so it cannot exist under our Constitution):
"In despotic Governments, the Government has usurped, in a similar manner, both upon the State and the people: Hence all arbitrary doctrines and pretentions concerning the Supreme, absolute, and incontrolable, power of Government."
"As described by [Blackstone], the British is a despotic Government. It is a Government without a people. In that Government, as so described, the Sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere."
Our entire Constitution is devoted to dividing, diversifying and diffusing power to prevent despotic exercises of power. The first and most important separation of powers in our Constitution is between the sovereign people and all our public servants. See, e.g., the dissenting opinion in Alden v. Maine, 527 U. S. 706 (1999) discussing some of the relevant statements in Chisholm v. Georgia (1793) by Chief Justice John Jay, Justice James Wilson and Edmund Randolph. Simply put, our freedom of speech (including our right to vote) is a vital aspect of the sovereignty of the people.
In Chisholm, Justice Wilson (one of the most enlightened and influential of the Framers of our Constitution) expressly revealed that the most important concept in our Constitution is only implicit in its text and structure: “the term SOVEREIGN” was not used anywhere in our “Constitution.” More importantly, the Preamble is the “one place where it could have been used with propriety.” Those “who ordained and established” our “Constitution” clearly could “have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” The first and foremost separation of powers in our Constitution is between the sovereign people and all public servants. So, in our Constitution “The PEOPLE of the United States’ are the first personages introduced” (by the Preamble).
I have a number of these on my shelf, now also including McHangama and Kosseff’s new book The Future of Free Speech (thanks to FIRE!). I now have more to add. 🙏
Thanks for these @glukianoff! This is a post I really needed right now!
Excellent bibliography and your annotations are very well done. Excellent work.
The title that opened my mind to the question, in my formative and malleable teenage years, was Fahrenheit 451 by Ray Bradbury
I'd like to recommend "Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius" by Edward de Grazia. Very fun to read.
For a couple more conservative selections, which point out the weaknesses of Mill and his acolytes, try Francis Canavan's Freedom of Expression: Purpose as Limit, and David Lowenthal's No License for Liberty. For an application of Canavan's use of classic SCOTUS dicta--much of it semi-Millian--in articulating a "purpose" for free press and free speech rights, see my just-published essay, "The Purpose of Open Journalism and Free Speech." https://pomocon.substack.com/p/the-purpose-of-open-journalism-and This essay is preparing the ground for a fuller attack to come on the "conservative" and "libertarian" participation in one of the greatest journalistic Suppression campaigns ever, the present one against the widespread covid-vax-harms story.
I distinguish suppression from First-amendment-violative censorship. Would love to hear any of your far-more-experienced-in-this-area thoughts on my approaches, or Canavan's.
I just read part of your piece. That's great how you highlighted Tocqueville highlighting how expression, communication and association are intimately related: "newspapers make associations, and associations make newspapers."
If you haven't read it, you might also like "Affairs of Honor: National Politics in the New Republic" by Yale professor Joanne Freeman in 2001. It emphasizes the same vital principle using different sources and insights.
This is a great opportunity for you to make a suggestion. I would be interested.
Interesting question. I mostly agree. However, it might be less about agreeableness as defined in personality tests, and more about conflict avoidance and fear of the social and economic consequences of judgment from others. (Defending free speech publicly can make not only you but also your loved ones into lightning rods. Plus, single moms and lower income women can't risk losing their job over unpopular views). I suspect that the gender difference will exist as long as we expect women to shoulder most of the responsibility for maintaining interpersonal relationships.
I suspect you'll find these women instead advocating and exercising free speech in private and donating to FIRE.