• Constitutional history, at least in the United States, could be written as a struggle between the commitment to freedom and the commitment to equality.

• The more freedom people have, the less they are equal. The more equality they enjoy, the less freedom they are allowed to exercise. The more equality, the less freedom.

  • This was the view of the Supreme Court in the Dred Scott decision, which held that the Missouri Compromise violated the freedom to take one’s property (i.e., slaves) wherever one went.

    • The conflict also applies to the accumulation of wealth. The freedom to own property and to earn money in a free market stands in opposition to the equal distribution of wealth.

• The American Supreme Court has consistently rejected the relevance of wealth in applying the principle of equality under law.

  • An example is San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), which held that some school districts in Texas could permissibly spend significantly more per pupil than others.

• Prior to the Civil War, the dominant theme of American law was freedom from interference by the federal government.

  • The Civil War brought equality front and center, and we saw in the last chapter that in the period between 1954 and 1974 the Supreme Court expanded the American commitment to the “equal protection of the laws” under the Fourteenth Amendment.

• Review the first eight amendments in the Bill of Rights to see how strong the emphasis was on freedom in the late eighteenth century.

Freedom of Speech

• The most significant assertion of freedom in the United States is the faith in freedom of speech and of the press.

• The First Amendment provided, as of 1791: “Congress shall make no law . . . abridging the freedom of speech or of the press.”

  • The courts’ cultivation of free speech as a fundamental value of the American democracy began after the First World War.

  • If the principle of equality under the law generates common ground with other social democracies in the industrialized world, then the doctrine of nearly absolute freedom of speech reveals that Americans are different after all.

• Libel is a common law tort.

  • It refers to defamation in print as opposed to slander, which addresses aural defamation.

• It has been recognized that “prosecutions for libel on government have no place in the American system of jurisprudence.”

• In a democratic society where men are free by ballots to remove those in power, any statement critical of governmental action is necessarily “of and concerning” the governors and any statement critical of the governors’ official conduct is necessarily “of and concerning” the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution.