The figure at the center of this free speech story is Alexander Meiklejohn. He was very well known in North America from 1912 to his death (at 92) in 1964. For most of those years he received much attention for his views on education. His arguments moved that issue from Christian-moral to liberal-intellectual. He wrote, published and lectured tirelessly. His radical position on free speech, dating from the early 1940’s, relied on a patiently argued unusual view of self-government. That led to his unique interpretation of the US Constitution. It would not be accurate to call his career a normal success story, but his views and their supporting arguments are deep, radical and illuminating. They are worth considering.
His family was culturally Scottish; seriously so. They came from the area of Rochdale, where a consumer-cooperative movement had begun in 1844. Meiklejohn’s disposition through his life favoured cooperation over competition and gave strong colour to his views on social and economic relations.
His father’s position in the weaving trade led him and his family first to England where Meiklejohn was born in 1872. His father was again transferred, this time to Pautucket, Rhode Island where Meiklejohn began public school at age 8. He was quickly recognized as a gifted student, (and a good versatile athlete). After finishing high school he attended the local university, Brown. Again he excelled, Phi Beta Kappa in junior year. His professor of philosophy at Brown moved to Cornell University and Meiklejohn followed him there to receive a Phd. in philosophy in 1896 (on Kant’s theory of substance).
In 1897 he began teaching at Brown and became a Dean in 1901. He continued teaching and holding an administrative role at Brown until 1912 when, at age 40, he was invited to become President of Amherst. Amherst in 1912 was very far from the distinguished college it was to become. Yet the invitation also was not, in fact, out of the blue. Meiklejohn’s truly different views on education had drawn wide attention. Though the relationship between constitutional law and free speech/self-government, on the one hand, and public education on the other is inherent and vital, that did not become his main focus until years later. With these remarks as preface, let’s now turn to Meiklejohn’s views on free speech.
The nature, sources and limits of rights, liberties and authority tend not to remain uncontested for long. Argument and controversy are usually close by. One aid in such controversies is to be able to find or reasonably assign a recognized role, station or duty somewhere near the heart of the matter. Often a role, station or duty answers to a recognized constant, something like a basic human relationship or enterprise. For example, the parental role with its authority and responsibilities is everywhere recognized, if over a varying range. But less familiar roles or stations appear, or new and different conceptions of old ones also appear, with new or expanded agencies to attend them or to re-interpret older agencies’ authority.
The point here is if one can find or reasonably assign “the” or “a” role, the powers, rights, and authority it should enjoy are likely to become far less abstract, more evident as a function of the needs or demands of the office. In simple terms, those are the needs or demands of the office without which its responsibilities could not be fulfilled. In bare bones, this is the path Meiklejohn followed to arrive at his unequivocal, and illuminating defense of the US Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.”
From this basic premise other steps follow, and he next turns to the Constitution’s Preamble :”We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Meiklejohn treats those words as expressing a literal solemn intention of the people to embark on an ambitious and not then widely practiced or understood experiment in self-government.
Meiklejohn now takes another brilliant dramatic step: to argue that the Constitution thereby establishes four branches of government, not the regularly recognized three. They are in (proper) order: Electoral, Legislative, Executive, Judicial, and that order indicates that the Electoral branch of government is paramount, since in a straightforward sense it alone authorizes or creates the other three. But it should be noted here that this scheme holds only if the Union (its People) sees itself as, and intends itself, to be self-governing. And if self-governing (call it “democratic”), and if democratic then the Electoral branch creates an official office, station or role for every citizen. Thus the First Amendment’s rights are those without which the citizens could not fulfill their primary electoral responsibilities: to pursue the general welfare, to deliberate and determine the fundamental policies that the other three agencies of government are to carry out.
Given this view, the right of free speech, press, and association is nothing like a natural right, nor does it attach itself to us as human individuals. It is, rather, the product of a convention, a gathering of human minds with a common purpose. This convention created citizen governors who thereby take on the basic responsibilities of governance. Such then is Meiklejohn’s view on the First Amendment’s unequivocal, unabridgeable rights of free speech, press and association. These necessarily attend a system of self-government.
Meiklejohn’s argument on the First Amendment’s flat, unequivocal defense of free speech (press and association) does not rest on a long or slippery argument. But it does rest on a very bold unqualified interpretation of the nature of self-government. It also requires the imputation of intentions or their consequences held in the minds of people. Such as these are at least controversial. They also flow from or maybe only reflect Meiklejohn’s deeper convictions (call them ideas or principles) which underlie the self-government/free speech position so far sketched.
In this connection it is vital to note that Meiklejohn was an idealist, in the ancient philosophic sense which received lasting expression by Plato and by Platonists ever since. Meiklejohn was an idealist, not a pragmatist or a utilitarian (and also not an empiricist or materialist). Philosophic idealism holds, roughly, that there are ideas (principles) accessible to human minds that are neither the products of our minds, nor are traceable to sensory experience. The realm of the ideas is not in or conditioned by space and time. And of overriding importance, these ideas exhibit something like self-evident truth and validity. They are undeniable. This idealist view of things though disputed and dismissed from its beginnings is still around, still showing some vital signs. There are, for example, mathematicians and logicians who believe they find or “discover” truths. They lack a sense of creating them. Did Leibniz and Newton discover or did they create calculus to serve their contemporaneous independent interests? Or did they stumble upon a notation for the music of the spheres? For reasons much like these the contemporary physicist Roger Penrose calls himself a Platonist. And now finally and much, much more importantly, the moral and value realm still today invites, maybe even requires, an idealist interpretation or defense.
From what source does The Golden Rule derive its power? Why has it been said that one or another of its many versions seem to be carved in stone over the entrance to the moral realm? Is torture self-evidently forbidden? Does promise-keeping or truth-telling impose serious duties upon all of us.. and so on.. and on? My remarks here are not a claim that any variety of Platonism enjoys final validity, but it is a claim that idealism holds ground; it cannot casually be dismissed. It is also to note that idealism is consistent with but also totally separable from any religious ground or claim. Meiklejohn was a quite “unreligious” person. Religion does not ever figure in his arguments.
The idealist to whom Meiklejohn turns is Rousseau, who begins his classic work The Social Contract with something like these dramatic paradoxical sentences: “Mankind is born free, but is everywhere in chains. How that came about I do not know. What can render it legitimate I can explain.” The paradox is the dramatic claim to render chains legitimate…but what Rousseau really wants to show is that the law to which we are subject is legitimate if and only if we are at the same time the authors of the laws to which we are subject.
Citizens thus would wear two hats: a subject hat and a governor hat. But only if there is a social contract that creates a system of citizen-created and citizen-directed government. For simplicity’s sake let’s call that “democracy”. Rousseau said too much about “the general will”, some that was confused or confusing or even incoherent, but for our purposes (and distilling a lot) here’s a daylight meaning: as citizen governor (Meiklejohn’s Elector) I must always will and vote for the general good or interest of the association, not for my own good or interest. The general will by definition always has as its object the good of the association and I, as citizen, subscribe to that will since that simply is what it means to be an Elector-citizen in a democratic system.
It is worth noting here that John Stuart Mill, the best known defender of free speech in our tradition, was both drawn to and uneasy about the secret ballot. His problem was this: the secret ballot allows, if it does not in fact encourage, a citizen to vote in secrecy what he/she would find more difficult to do in public: to substitute his/her private good or benefit for the public good. Mill took the issue a bit further to suggest a mild possible antidote: a voter should conceive of her/himself as the sole, the only voter who determines by his/her vote the ruling policy for the whole association! That is a benefit because it should increase the voter’s sense of personal responsibility as guardian of the association’s welfare. Other voters do not dilute one voter’s personal responsibility to pursue the general welfare. Our species is most always in groups, herds large or small. Some level of governance, some setting of rules is inescapable and also somewhat perilous. Thus, in Rousseau’s dramatic terms, we are everywhere in chains.
What I think he is trying to accomplish is to bestow the only kind of political freedom he believes is available to our species. And even more importantly, to thereby bestow on us a unique kind of dignity, special to “mankind” (his term). Through the Social Contract, we “mutually” agree to substitute cooperative deliberation for mere nature or habit, or convenience.
It is to that ideal that Meiklejohn subscribes and in light of which he’s interpreting, trying to illuminate the still perilous constitutional experiment on which a democratic people are embarking. Everyday.
I used the word “perilous” just now and in defense of that term will quote three of Meiklejohn’s sentences, (they appear on page 98 of the 1963 edition of his Political Freedom): “To be free does not mean to be well-governed. It does not mean to be justly governed. It means to be self- governed.” Those words express a striking form of unqualified idealism, and offer a clear-eyed choice. Meiklejohn provides no explicit argument in their support. What argument could or would make the case? His words also do not deny hope or even optimism, nor suggest our energy would be wasted in efforts to pursue justice and wise responsible government. Meiklejohn is not here suggesting that self-government, political freedom, is more given to unjust destructive folly than are alternative forms of government . But by these stark words Meiklejohn is trying to help us understand what he believes is the true nature of our democratic wager; and to remind us that no higher, final appellate tribunal (even a Supreme Court or some such council) is itself outside the power of shallow, partisan, cruel and destructive folly.
Throughout his career Meiklejohn received much more support for where he came out on the issue of free speech, than for the route he created to get there. The route he offered not only explicitly denied natural or individual rights, it found those conceptions misleading. They encourage the “balancing” of individual rights versus something like “clear and present and serious danger”. Unabridged free speech will be claimed to create danger to the public safety or welfare. Balancing individual rights against public safety or welfare will too often lead to the forbidden abridging of free speech.
The “clear and present danger” doctrine arose in a 1919 US Supreme Court decision which upheld the conviction, during WWI, of a group who were accused of using words to obstruct the conscription of men (“the draft”) into the armed forces. The Court’s decision upholding the conviction was unanimous and written by a distinguished and persuasive Justice, Oliver Wendell Holmes. Holmes’ decision had to be Meiklejohn’s first order target of criticism; but Holmes’ underlying reasoning and values also provided a deeper target.
Justice Holmes’ words must be quoted here: “We admit than in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man from an injunction in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words which may have all the effect of force…the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that a Congress has the right to prevent. It is a question of proximity and degree.
“When a nation is at war many things that might be said in time of peace would be such a hindrance to its military effort that their utterance could not be endured so long as men fight, and that no court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.”
Before turning to Meiklejohn’s deeper criticisms, several comments are in order. Note, for example, the word “falsely” in the crowded theatre case. Delete that term and the case alters appreciably. More importantly, virtually all serious defenders of free speech, including Meiklejohn, depend on a distinction between advocacy (protected) and incitement (not protected). The incitement factor plays a heavy role in Holmes’ reasoning. “If the words used are used in such circumstances…”. John Stuart Mill, in On Liberty, provided a now classic conception of emphatic incitement with his case of a man arguing before others that private property is theft, but now argues that before an angry, hungry crowd in front of the corn dealer’s shop in time of famine!
From the bottom of page 60 through mid-page 70 of his Political Freedom, Meiklejohn sets out the basic grounds of his deep criticism of Holmes’ views. One sentence sets the case up: “The philosophy of Mr. Holmes was, we shall find, one of excessive individualism.” (page 61) The term “excessive” in that phrase refers to Holmes’ failure to acknowledge, much less to accept, that the “people” of the US, even when viewed primarily as self-interested individuals, must also share as citizens some overriding conception of civic purpose to which is owed a shaping measure of loyal significance. Meiklejohn’s views were themselves, of course, shaped by his “civic idealism” discussed earlier. Meiklejohn notes throughout these pages (and quotes Holmes to this effect) that Holmes cites, and by his tone celebrates. the inescapable competition of self-interested individuals caught up in “…a roar of bargain and battle.” (Holmes’ words). And this leads Holmes to the competitive “marketplace of ideas”. That neat phrase (borrowed from economics) caught on, of course. Also of course, given the economic metaphor, it invited and received the easy substitution of the term “interests” for the term “ideas”. Thus we arrive at the swarming competition of self-interests and their groups wherein (it came to be argued) the public interest is implicit and will somehow be revealed. That is a disarming and difficult doctrine. It is also a spiritual light year distant from Meiklejohn’s conception of self-government as a citizen-guided deliberative forum seeking the common good.
Now for what might be considered a mere digression, though I don’t think it so. Meiklejohn used what is apparently illogic to throw light on the significance of his primary branch of government, the Electoral branch. Meiklejohn said the right of free speech and press attends more to the needs or rights of hearers and readers than it does to the rights of speakers and writers. Of course Meiklejohn knew, as we know, that we cannot have hearers and readers without speakers and writers. But the emphasis Meiklejohn gives to hearers and readers (rather than speakers and writers) throws light on the Electoral branch as needing to hear, needing to read, whatever any source offers that bears in any way on its deliberations. Meiklejohn views this as part and parcel of the education of the Electoral branch as it seeks to fulfill its responsibilities. Moreover, Meiklejohn is clear that the Electoral branch alone enjoys the authority to determine what it shall hear, read and to what ends it shall associate to fulfill its political responsibilities. The Supreme Court does not enjoy that authority. Thus Meiklejohn, always a teacher, draws our attention (and the attention of the Court) to the nature and needs assigned to the school and forum of the Electoral branch of government.
Thus the words “clear and present danger” proved to be more vague and difficult than they initially sounded. This brought many unwelcome extensions forward. These cases soon drew both Holmes and Brandeis into dissent on Supreme Court cases where “clear and present danger” was cited to abridge free speech. Why must the clear danger be present, for example? Would it not be foolish to await a clear danger until it becomes present? Brandeis and Holmes, in dissent, tried to strengthen the doctrine by adding “…and serious danger”. But that did not really turn the tide. The doctrine so persuasively set forth by Holmes, and supported by a unanimous Court, was unable finally to limit the damage done to the First Amendment’s flat denial of abridgment.
It should be noted here that though deliberation and negotiation are often confused, they are not the same, either in spirit or practice. Think of a jury, or a judge or a family trying to serve an overriding shared purpose, trying to arrive at a decision now to serve that purpose or value. A jury must pronounce on guilt or innocence; a judge must seek justice (or wisdom?), and how can we serve the family’s welfare? Call cases of that sort “deliberation”. Contrast negotiation where the parties do not share an overriding purpose or value…each party seeks maximum benefit for its own interest. Compromise is the highest form of wisdom in negotiation, when the contending parties are not too unequal in power, otherwise conflict or ultimately war must follow.
Having said that, I should here note Holmes’ words as quoted “…that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.” Prima facie his words purport to express something like laws of human nature, of war and courts of some power, since they also explicitly predict consequences. But I think that is mostly apparent. Its plainer meaning (though presented as a kind of puzzling promise or “self-verifying” theory) is that verification is provided by Holmes and the Court. “Not to be endured” means “ought not” and “ought not receive constitutional protection” actually means “…and does not”!
That sentiment, that pronouncement is very far from Meiklejohn’s deliberating forum and also from Brandeis’ later dissents which call for patience, time and argument (deliberation?) against the haste to abridge free speech. The “marketplace of ideas” proved to be a mischievous conception, according to Meiklejohn. He had long held and expressed, and continued to express criticism of the increasingly dominant market theory of economics, especially as its values, methods and ambitions expanded to invade the forum. They began, so Meiklejohn argued, to overwhelm such integrity and vitality as ever attended a civic deliberative tribunal, which seeks to serve the over- arching value of the general welfare.
The US suffered significant human and material losses through WWII, yet it did emerge from that war rich and powerful. It had enormous industrial and agricultural productivity (and the A Bomb!). Domestically it enjoyed a degree of unifying spirit. That spirit is somewhat unusual for the US and was in fact to be enjoyed only for a short time. It also enjoyed a wide- spread measure of foreign prestige and respect. To this must be added the Marshall Plan, directed to finance the physical and economic reconstruction of Europe. Despite these favourable circumstances, the unifying spirit was soon overwhelmed by many practices that seriously and repeatedly attacked free speech, press and association. Both the spirit and the persuasive legal reasoning of Holmes’ clear and present danger doctrine bears heavy responsibility for making these practices allowable and extensive. Meiklejohn saw this clearly and argued explicitly against that doctrine over and over.
For example, in 1938 the House of Representatives of the US Congress had voted 191-41 to create a special committee to investigate persons with “dangerous ideas”. In 1945 the House by a vote of 208 – 186 made the House UN-American Activities Committee (HUAC) permanent. In 1946 President Truman undertook a comprehensive “loyalty-security” program, and in March 1947 he issued a loyalty order. Also in 1947 the Federal Department of Justice listed seventy- eight organizations whose members might be considered “disloyal” and the US Attorney General restricted the freedom of speech of foreign visitors. The governing Regents of the University of California imposed a loyalty oath on faculty members who were required to sign a statement disavowing membership or belief in the principles of the Communist Party as a condition of continuing employment. These matters were followed later by the deeply destructive rampage by Senator Joseph McCarthy, utterly without respect for the First Amendment’s protection of free speech, press and association. In addition, the movie industry banned (black-listed) a set of successful Hollywood screen writers because of “left wing” views or sympathy with Communist Party policies. The intimidating, suspicious and damaging atmosphere was widespread. It was oppressive, silencing and quite successful. The man who was later to become President of the US, Richard Nixon, played his early eager part in the betrayal of the Constitution’s First Amendment. All this took a heavy toll on the private lives of many. Families and careers suffered, many lost their employment, including hard-working career civil servants. A close friend of mine, a young lawyer, was discharged by his small Berkeley law firm when he was ordered to appear before the HUAC’s hearings in the San Francisco area. Simply for appearing!
Meiklejohn continued the struggle to defend the Electoral branch of government (and the First Amendment) against its attackers. In this post- WWII period (say from the late 1940’s through the mid-late 1950’s) Meiklejohn spoke, wrote, lectured and appeared wherever, as widely as he could on this deep disorder in the US system of self-government. Meiklejohn was not alone is this struggle, but he enjoyed a rare position, though it can hardly be called a “popular” advantage, since he had an actual coherent, arguable theory of democratic government and the First Amendment’s support for the position he took. Surprisingly, importantly and sadly, the daily press (including some of the most prestigious papers) did not defend free speech and press valiantly. (The McClatchy newspaper chain was a notable exception to that failure.)
As remarked earlier, virtually all defenders of free speech depend on a distinction between advocacy (vital, protected) and incitement (not protected). And as mentioned, Mill’s corn dealer’s case is classic. But not all cases fit that model, since perhaps other cases are not so clearly distinct. Consider, for example, cases of this odd sort that attended the successful rise of the Nazi party in Germany in the 1930’s. A person is speaking at a public meeting in opposition to the Nazis. Some of Hitler’s bully-boys speak to the local authorities making clear “…if you don’t interrupt this meeting, we will”, whereupon the speaker is silenced. That is a somewhat different sort of incitement, is it not? And of course, the local authorities were in no position, either politically or “on the ground” to deal with that sort of incitement, and must accede, and did.
The problem with the vital distinction between advocacy and incitement is that the difference too much depends on the eye of the beholder, and that beholder’s eye often is shaped or, more commonly, focused by interests, fear, ambition or partisan urgings. The period we are centered on here rarely if ever involved silencing on grounds of true incitement. It was advocacy or association that was attacked, and intimidation was its main method. What’s more, it was the Congress itself, or other agencies of government that led the attack. That in turn, reveals the central problem of the clear and present danger doctrine and the terms of its presentation by Justice Holmes: it invites using the doctrine to suppress or intimidate positions held by strong advocates, as though words were actually generating true evils…which was never shown or even persuasively argued. It was speech and association that was attacked. Meiklejohn was, in my opinion, on solid footing when he over and over insisted the doctrine invites the invasion of rights that should be protected as advocacy, in terms which create the sense rather of incitement. Indeed, he gave voice to the basic principle with the declaration: “the American People must be free to advocate revolution, not only in 1778, but forever.”
In Political Freedom, Meiklejohn offers the following rule of thumb, and it catches much of the nature and spirit of free speech. It also somewhat disarms the predictably urgent drive to convert strong advocacy by its proponents into the forbidden realm of dangerous incitement by its opponents. Meiklejohn’s rule: if in circumstances A it is permitted to advocate proposition P, then in like circumstances A it must also be permitted to advocate not-P. But Meiklejohn’s rule of thumb would scarcely work well in Mill’s corn dealer’s case. Silence would be much less inflammatory, there and then, than an attempt at reasoned argument. But in the spirit, but not the formula of M’s rule of thumb, consider Brandeis’ later thoughts on clear and present danger (quoting Meiklejohn now): “Brandeis argues that we must always assess circumstances leading to abridgment against what time and further open argument might produce, if the circumstances will allow that. Moreover, we (including the Court) must encourage that, rather than abridgement.” Meiklejohn heartily welcomes Brandeis’ defense. He sees Brandeis’ views as kin to his own deliberative, educational forum, insisting it must be given time to work. Abridgement thus is the last, not the first recourse.
For all those who, like Meiklejohn, truly believe in self-government and its integrity in practice, the problem of free speech, press and association is central and extensive. But that loyalty triggers another problem: how to distinguish “public speech” with its serious, extensive protections, from “private speech” which while enjoying protection is at the same time subject to much sensible regulation. Meiklejohn of course recognizes this, his words state explicitly that the problem is “deeply and permanently perplexing” (page 81, Political Freedom), but he does not and, I think, cannot provide anything very helpful, much less a rule or formula. Nor have others been more successful. Meiklejohn turns to the US Constitution’s Fifth Amendment. The operative terms there are: “…; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;…”
Since the Fifth explicitly refers to speech in the clause exempting a person from being witness against oneself, Meiklejohn has that speech reference to start off. Moreover, speech itself, words alone without further action, have been found criminal, for example, in cases of conspiracy. More extensively, “truth in advertising” laws can be used to indict private speech crimes where words alone are the grounds for prosecution. Even this much supports Meiklejohn’s claim that public speech enjoys a special, protected position that does not cover private speech. But the public/private speech issue is as Meiklejohn says, of deep complexity and resists solution. It has been left pretty much to courts, sometimes other tribunals, to make common law as they settle cases.
Before we continue we should note that there always have been common sense limits on spoken words. These limits are often seen as “time, place and manner” rules. One must not harangue the crowd at the ballgame, or patients in the hospital with one’s views on the wisdom of public policies. But what now to make of endlessly noisy interruptions of invited speakers’ lectures? That is today a very serious problem on many university campuses in North America.
Should that be regulated, and if so, how and by whom? How many feet must protesters be separated from the women entering abortion clinics; what kinds of language or depiction rules should or could govern cases of this sort? And what of the problems presented by high-powered, versatile instruments – such as the social media of the Internet — being steadily produced by technological advances, decades after Meiklejohn was speaking on free speech issues. For him the major threats were offered by the legislative and executive branches of government. That source of risk to free speech will always potentially be threatening. But these powerful instruments in countless, anonymous hands lend themselves to mischievous, sometimes cruel, damaging uses, whatever benefits they also make possible. That damage begins to have serious public effects. It begins to undermine the recognized standards necessary to support the public’s deliberations…among other things these standards rely on evidence, facts, truth and respect for others, and some minimal level of verbal manners. These instruments also lend themselves to the naked ambition of demagogic partisans. These instruments allow, when they do not not actually encourage, civility itself to be attacked, sometimes overwhelmed. It is worth noting here that civility is not merely an old- fashioned quaint virtue. It makes self-government possible, especially in deeply partisan periods, when the vital protection of the concept of the loyal opposition is weak. Without civility, self-government cannot for too long be sustained.
I’m going to leave the “straightforward” problem of free speech. We may be somewhat wiser than we were regarding the problem (I am!), but still without a solution. I take this direction now because it seems to me, after many (I am 95 as I write this) years, that Meiklejohn finesses the problem of free speech/private speech. He does so, I now think, by setting forth and giving heavy emphasis to, an unusually rich, truly capacious view of the depth and extent of whatever goes to shaping the deliberating minds that compose the Electoral branch of government. Let me quote Meiklejohn here, from his words that appear on p. 117 of Political Freedom: “First, as we try to ‘make up our minds’ on issues which affect the general welfare, we commonly — though not commonly enough — read the printed records of the thinking and believing which other men have done in relation to these issues. Those records are found in documents and newspapers, in works of art of many kinds. All this vast array of idea and fact, of science and fiction, of poetry and prose, of belief and doubt, appreciation and purpose, of information and argument, the voter may find ready to help him in making up his mind.”
That short paragraph appears to me to be an undeniably rich view of the depth and extent of free speech and press and also much else to aid in making up the Electors’ minds in addressing public issues. That is true because Meiklejohn believes that public issues, e.g. of tax or industrial policy, even of war and peace, are almost always of a depth and complexity which only can be addressed wisely by a remarkably rich, disciplined and informed set of Electors’ minds.
In support of that broad claim I will record an anecdote to which I was very close but not party. It took place in Berkeley between 1957 and 1959. A friend and fellow-Phd student Jack Murphy and I were teaching at Cal, and using Meiklejohn’s Political Freedom and other relevant works, including Plato’s very dramatic dialogue Gorgias. Jack had a question for Meiklejohn, but was hesitant to seek an answer. Jack’s wife simply phoned Meiklejohn’s home and was told to send Jack up the hill, and he will find Meiklejohn in the garden. Jack trudged up and was greeted by Meiklejohn with a smiling, open welcome, and ”You have a question for me.” Jack said, “I do — how do you handle pornography?” Without the slightest sense of puzzlement or unease Meiklejohn cheerfully, quickly replied: “Oh, I handle that by the same theory…in fact, Professor X (a nationally well-known constitutional scholar) asked me the same question recently. I gave him the same answer. “
It’s perhaps worth noting that Meiklejohn’s position on pornography was expressed a few years after Judge Wolsey’s legal admission of James Joyce’s novel Ulysses into the U.S. on the much more limited grounds that though the novel uses explicit language, its use there for the literary values it serves, is not obscene.That reasoning has been cited with success in a number of like cases since. And also Meiklejohn’s position on pornography was held before the notorious “sixties” more or less blew the heretofore public standards on obscenity and pornography out of the water. (Such standards, however, have resilience, and may over time reappear.)
On Meiklejohn’s explicit answer to the questions of the role or place of pornography on the free speech/press needs of self-government there is, no doubt, more than one defensible interpretation. Mine is that Meiklejohn simply believed that sex is, for humans, in all its astonishing variety, its importance and fascination, etc., too central to be narrowly censored and limited in its written and portrayed presentations. It has a real role to play in the public mind on a vital feature of our lives together. I cite this anecdote mainly to support my view that Meiklejohn somewhat sidesteps free speech issues by absorbing them in his unusual, remarkably rich and generous view of the capacious quality of the public mind in self-government.
It is now time to conclude this essay on the position of Meiklejohn on the vital supports of the citizens’ minds that help to make up the sovereign, Electoral branch of government. Even to have found constitutional grounds for the Fourth and primary branch of self-government was a brilliant achievement. It also is to my mind sadly unlikely that any US Supreme Court will give serious respect or hearing to his views.
But there are other serious problems: for example, Meiklejohn’s position rests on a vital need for a well educated, disciplined, broadly based set of citizen minds to support his view of self-government. Over many years, Meiklejohn spoke for and administered lots of educational programs to serve this need. Even if we were disposed to provide an educational program to serve that need, where and for what “schooling” levels would we find the teachers? Why are programs of liberal education so few and too often short-lived? Why are the humanities now overwhelmed by “research centered” post-secondary educational programs? Moreover, does Meiklejohn’s embracing view of the “public mind” in an absorbing public forum simply ask too much of too many of us too much of the time, even if large numbers of us are well disposed, loyal, sensible and reasonably well educated?
These are real problems for Meiklejohn, but in fact they are real, besetting problems for all experiments in self-government. But wait… self-government, on a very ambitious broad basis anyway, was from the outset a radical experiment. That experiment, with all of its pluses and minuses, is now well over two hundred years old: an enveloping radical human endeavour that must be counted as some sort of success. Much more can be said, much more must be pondered, but not here, not now. But I want to tell one last story,
As I said at the beginning, Meiklejohn’s career was not a normal success. This was noted by his wife Helen, who as his widow told me this: not long before his death at 92, the two of them went, as they sometimes did, to the top of the Berkeley hills to look west, over the town, the Bay, through the Golden Gate to watch the sun set in the Pacific. Something prompted Helen to challenge him: “Well, Alec, let’s look at the record. You were fired as President of Amherst for your unsettling views on education, your fine Experimental Program at the University of Wisconsin lasted three sessions but then was discontinued, your program of adult education in San Francisco though successful was undone by World War II, and to cap it all off your arguments on the US Constitution, the Electoral branch of government, the First Amendment’s protection of free speech, press and association, though having some popular success have not been deeply understood or gained legal acceptance…what’s left to be said?” To which he calmly replied: “Oh yes, but that’s not the point!”
Meiklejohn was a special kind of happy warrior: always formal, always courteous, generous in spirit and in language; his views were thoughtful, argued, and never personal; and he never wavered from his core convictions.