James B. Shearer (see here and here), has implied that I am a hypocrite for supporting a balancing test in the context of First Amendment claims by government employees, but not in the abortion context. For example, he has said:
Patterico, you were not a big fan of Sandra Day O’Connor or her jurisprudence saying for example “I consider Powell and O’Connor to have been weak Justices, overly fond of multi-part balancing tests and splitting the baby.” (in a post dated 11/10/2005). So you get a couple of new judges more to your liking and they predictably reject one of O’Connor’s beloved balancing tests in favor of a bright-line rule and you are “disappointed” and complain at great length. Just what did you expect? Is “judicial restraint” just code for anti-abortion?
Commenter Anwyn chuckled at this “throw-down” about balancing tests.
Mr. Shearer’s argument is that the text of the Constitution says nothing about government employees being punished for their speech. Indeed, the text of the First Amendment protects freedom of speech only when infringed upon by congressional laws, and says nothing about the executive or judicial branches (case law has filled in that gap).
For that reason, Mr. Shearer does not believe that the First Amendment would prohibit the President from ordering me to be audited because I got on a soapbox and denounced his immigration policies. I asked him: “For example, if James Shearer criticizes the president’s immigration policy in a letter to the editor, can the President have the IRS audit James Shearer?” Mr. Shearer responded that he did not see a constitutional problem. His stance is the absolutist position that if it’s not in the text of the First Amendment, it’s not there, period.
The conservative/libertarian First Amendment scholar Eugene Volokh has decried similar views as nonsense:
This also shows the error of faulting liberal judges for “making up the law” in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can’t just rely on the text. They can’t just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn’t even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)
One can criticize judges for just making up constitutional guarantees that aren’t mentioned in the Constitution at all. But here the Constitution does say something — but something very general. If it’s to be enforced at all, judges have to give it specific meaning. And that’s been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.
The difference between a real constitutional guarantee like free speech, on one hand, and a phony one like abortion, on the other, couldn’t be more clear. The Constitution says something about freedom of speech. It says nothing about abortion — or even a general right to privacy.
The history of the “right to abortion” is well documented. The justices decided what they wanted to do on policy grounds first, and constructed the rationale later. It is a “right” that doesn’t exist in the Constitution at all, and applying Professor Volokh’s logic, it is justified to criticize judges for making it up.
The abortion “right” is thus quite a different animal from freedom of speech, where judges have to make up rules to give meaning to very general (but most assuredly existent) constitutional rights. It is a bogus argument to compare the two.
Sometimes judges have to create rules to enforce constitutional provisions. Sometimes those rules involve balancing competing interests. I prefer to avoid such tests when not necessary, but in the context of speech by government employees, I think it’s necessary. That doesn’t mean that I have to concede that the Supreme Court’s abortion decisions are legitimate — and it doesn’t make me a hypocrite.