Rules and Optionality
If the human right of freedom of expression is primarily a right against rules enacted with certain purposes rather than a right to engage in specific acts, then the rules that are permissible in terms of this right must also be optional in terms of the right.
That is, permissible rules for purposes of freedom of expression are rules that are neither forbidden nor required by freedom of expression.The connection between purpose-focus and optionality appears to be one of mutual entailment. Purpose-focus entails optionality: If the impermissibility of A’s rule means that Johnson escapes punishment, it must be because B’s rule is not required. For if B’s rule were morally required, then leaving aside questions of notice, the court in A could just order A’s officials to punish everyone who burns an object in public, including Johnson. By hypothesis, it would be morally impermissible for A to refuse to punish Johnson. If Johnson is entitled to escape punishment, it must be the case that B’s law is not morally required but is, instead, optional.
Optionality also entails law-focus rather than act-token focus. Johnson burns his flag. It is constitutionally optional whether he gets punished. If A has B’s law, then A will permissibly punish Johnson. If A has no law against burning objects in public, then A will permissibly (or so we have stipulated) decline to punish Johnson. And, of course, if A has a law against burning American flags, it will attempt, but will not be permitted (because of freedom of expression), to punish Johnson. Given that there are morally forbidden but no morally mandated rules prohibiting Johnson’s act, we cannot determine whether Johnson’s punishment for the act is constitutional without knowing the law under which he is punished.
The moral optionality of laws has two versions. One version is substantive, captured by Justice Oliver Wendell Holmes’s statement in his Lochner dissent that “The 14th Amendment does not enact Mr.
Herbert Spencer’s Social Statics.”[83] Or, in John Ely’s updated version of that position, the Constitution does not enact either John Rawls or Robert Nozick.[84] [85] It may forbid certain political moralities, but it permits legislators to choose among more than one political morality.For example, suppose the legislature is morally permitted to enact either the Rawlsian liberal welfare-state corpus juris or the Nozickian libertarian corpus juris.11 Suppose the former includes welfare grants of $3,000 per month to the poor, financed through redistributive taxation, and the latter includes a prohibition on all redistribution of wealth of this sort. This would explain why both generous welfare grants and no welfare grants are considered permissible.[86]
We might assume additionally that genuine compromise between the permitted options - for example, welfare grants higher than Nozick would allow but lower than Rawls would require - would also be allowed. On the other hand, “compromises” introducing elements, such as race, that are immaterial under any permitted political morality would be forbidden. Thus, Rawlsian welfare for whites but Nozickian (non)welfare for blacks would be impermissible.
The second version of optionality sees it not as substantive but as institutional. That is, the legislature may very well be required to enact one political morality-be it Spencer’s, Rawls’s, Mill’s, orNozick’s -but only part of that political morality will implicate judicially-enforceable human rights. Most of the mandated political morality will have the status of “underenforced norms.”[87]
Whichever account of optionality we prefer, the result is the same. Legislators are permitted by the courts to act as if many rules are neither forbidden nor required. And optionality, whatever its justification, should not be a controversial assumption. Not only does it square with most nations’ constitutional doctrine, but it also accounts for the relative importance given to legislative bodies, their selection and their powers. If human rights entailed a complete blueprint of nonoptional rules that were completely judicially enforceable, legislatures would be relegated to minor details, and the judiciary would assume an importance entirely out of proportion to the role implied in actual constitutions.[88]
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