It's Good to Have a Constitution

by Russ Roberts on February 27, 2006

in Law, Politics

Sometimes I despair at how little the Constitution matters in the United States as a deterrent to legislative mischief.  But then events remind me that even a little Constitutional restraint is better than none at all.

Take freedom of speech.  Polls always suggest a willingness of Americans to ban stuff they don’t agree with.  President Bush and others, talking about the Muslim cartoons, say silly things about the importance of using restraint in publishing offensive material when in fact, the whole idea of freedom of speech is to make sure that people can say offensive things.  And yet, the First Amendment makes me feel pretty good about the future of offensive speech in the United States.

Look at the David Irving affair.  I have no idea whether David Irving is a Holocaust denier.  I haven’t followed the trial.  What I do know is that I don’t want anyone in the United States to go to jail for three years for holding a particular view of history.  I want Holocaust denial to be destroyed in the court of public opinion rather than in the public courts.

Is there any way that Austria’s Holocaust denial legislation could pass Constitutional scrutiny in the United States? OK, we probably do have some hate speech ordinances that are steps in the wrong direction.  But at least in America you can deny the Holocaust and stay out of jail.

Here’s the irony of putting David Irving in jail for saying something offensive.  In the 1930s, a government came to power in Germany and eventually Austria that put people in jail for what they believed or said and eventually killed people, the Jews, for who their parents and grandparents were.  If you think that’s a bad thing, you want to limit the ability of government to put people in jail, not expand it.

As a Jew, it never ceases to amaze me that people think the most important lesson of the Holocaust is that anyone, even civilized Germans who love Bach and Beethoven, can become murderers.  Or that the most important lesson is that hatred is wrong.  Hatred is immortal. People say, "never again" as if saying it is sufficient to prevent future holocausts.  But saying it is not sufficient without limiting the power of government to imprison and kill people.

To me, the most important lesson of the Holocaust is that only governments can kill millions of people. Murdering millions requires absolute power. So I want governments to be weaker rather than stronger.  That’s why I like the First and the Second Amendments.  And why I’m glad I don’t live in Austria.


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