On the Superiority of the First Amendment to the Fourteenth

Our First Amendment protects freedoms of speech, of the press, and of religion. The Fourteenth prohibits States from denying their citizens the equal protection of the laws. Any lawsuit arguing discrimination or unfairness is grounded in the Equal Protection Clause, and it is a powerful tool in the hands of would-be social reformers who want to use courts to mold society to fit their particular vision. Perhaps my sneering summary has already loaded the dice, in the minds of my readers, against the Fourteenth Amendment (assuming most of you are conservatives, libertarians, or some mixture of the two). But really, my description only shows how the clause is and can be abused. This post is about why I believe the First Amendment is fundamentally the superior of the two.

In the case of U.S. v. Virginia (1996), female students sued the all-male Virginia Military Institute to make it accept women as well, and they won. Justice Scalia gave a generally lame dissent, but he said one thing that struck me as very important.

"The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution."

We see examples of such "smug assurances" all around us. "Gender is a construct!" the feminists cry, and their assurance is nothing if not smug, but also tends to be grounded in nothing more than unproven theory. Let's take Maureen Dowd for example. The promise of feminism is that a woman can be happy without a man, if only she has a successful career and material wealth. Ms. Dowd has certainly reached the pinnacle of her career, and yet she's so consistently miserable, and her repeated, plaintive cries make it clear that she pines for a man. The feminist promise failed her completely (not that she's about to wake up and realize that).

The First Amendment is a Constitutional guarantee, however, that as stupid and empty as the feminist promise is, government cannot stifle that promise or silence those who make it. If the First Amendment is properly applied, then the success or failure of feminism will be determined solely on the basis of its own persuasive power, as seen through the lense of experience. If, thirty years into the feminist movement, we see it has been nothing but a dismal failure, then we are better off with that knowledge, and it is for the best that the Constitution didn't allow government to step in and silence the feminists, no matter how batty their theories. The ideas simply can't support their own weight.

The Fourteenth Amendment, on the other hand, provides for the undefined, amorphous concept of "equality." If we are to rely on Equal Protection alone, it's not sufficient for the government to stay out of the way of the clash of ideas - it must take affirmative steps to modify the landscape so that certain ideas can be preserved. No longer do we see the imminent demise of those ideas which are unpersuasive, or pernicious, or counter-productive; instead, we see they take on longer life. Feminism (and note, I'm just using it as one of many possible examples) has no persuasive power, but because of the "smug assurances" of the academy, with their progressive theory du jour, it has been removed from the democratic process and written into thirty plus years of Constitutional history.

That is why the First Amendment is superior. The government should be kept out of the marketplace of ideas, not asked selectively through the Equal Protection clause to enshrine as unassailable those ideas which cannot flourish without governmental assistance.