Freeing Speech: The Constitutional War over National Security Review

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Freeing Speech: The Constitutional War over National Security ReviewIf you hold that America's fortunes rest in robust exercise of its democratic potential, then John Denvir's "Freeing Speech" is the brief you want to carry into court. The reason you are likely to find yourself in court, however, is that the trend in the latter half of the 20th Century has been to weaken democratic potency in favor of what Denvir terms the National Security Presidency. The tendency's foremost feature is the unilateral power of a president to commit the nation to military conflicts, not merely defensive in nature. Once this grave step is taken, speech's capacity to undo it is hamstrung.
Because democracy's role rests at the heart of the Constitution itself, courts must, under the system of checks and balances envisioned by the Founders, set straight an overreaching executive branch. All to often, the Supreme Court fails in its responsibility.
Taking a page from Karl Llewellyn's "legal realism," Denvir's analysis distinguishes an "official" Constitution, the one reliably announced by the highest court, from a "challenger" constitution, that is, an interpretation vying to replace the current official version. Moreover, where lacunae exist a third "de facto" constitution emerges, one in the First Amendment's realm, reflecting the preferences of local administrators seeking to avoid the untidiness of street marches and rowdy demonstrations in public parks.
Denvir eschews the cynicism of certain "critical legal studies" scholars, and refuses to lose hope that an allegiance to democracy, epitomized in his own "challenger" theses, will not one day triumph. In the face of a conservative court majority, inclined to sidestep its duty to "say what the law is" by resort to cheap technicality, such as denial of "standing," Denvir's call is indeed courageous.
The book's text, while exhibiting a law professor's care of reasoning, possesses a welcome narrative flow, as well as a command of historical context, an element that is essential at every step to Denvir's commentary. This is especially true of the sections dealing with the crucial importance of popular speech in the civil rights and anti-Vietnam War eras. In Martin Luther King's words (cited by Denvir), "Almost always, the dedicated creative minority has made the world better."
Denvir dissects presidential claims to secrecy, national security investigations, limitations on press access to war zones, and other hallmarks of the contemporary "war on terror," including insightful reference to recent publications by Goldsmith, Yoo, and Tushnet.
For those familiar with Denvir's previous work "Democracy's Constitution" (2001), "Freeing Speech" offers further elaboration of his contention that the Constitution's ideals demand judicial rulings actively promoting the rights of its citizens. It is not sufficient that the Supreme Court's civil liberties rulings restrain the hand of government. To the contrary, when controversies arise courts must fashion positive rules designed to advance free expression.
Without judges committed to this doctrinal view, the republic will lack the full-bodied debate needed to inform decisions by the president and Congress.
Howard J. De Nike is a legal anthropologist, who lectures at the Fromm Institute, University of San Francisco.
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