A social media conversation this morning prompted a few thoughts on the egregious lack of pluralism that characterizes America in the 21st century.
One poster observed that the white nationalist provocateur Richard Spencer is attempting another visit to Charlottesville, apparently with the intention of stirring up yet another racial hornets nest.
Yet, as another poster stressed, the University of Virginia, as a public institution that receives substantial federal funds, can’t easily refuse his request to stage another protest.
I’m no legal scholar, but it seems to me that we can ascribe the university’s predicament to the Incorporation Doctrine. The Bill of Rights originally applied only to the federal government. It was extended to the states only through incorporation, which was made possible by passage of the 14th Amendment. (Check me on this, but I believe I stand on solid ground.)
In time, I suspect the courts will formulatr some kind of compelling needs doctrine, which establishes some threshold for requests such as these, where there is the real risk of violence. Indeed, I presume that provisions such as these already are in place.
At this point, I feel compelled to offer a disclaimer: I am a free-speech purist – I think that open, robust speech is not only healthy but also vital to a free, open society. But I also think that the prospect of federal authority extending its clammy fingers into every facet of American life is a grievous and dangerous thing and one that the Founders – the vast majority of them, at least – would have found abhorrent.
I am also as much a proponent for pluralism as free speech. Our Founders – certainly Jefferson – envisioned a very pluralistic “republic of republics” in which the state republics would conceive their own individual visions of ordered liberty. While congenial to prevailing notions of liberty, these also would be adapted to local cultural, social and religious realities.
I’ll add a final disclaimer: I am as fervent a proponent as incrementalism as I am free speech and pluralism. It seems to me that barring an Incorporation Doctrine all of the states in time would have adopted some degree of legal uniformity regarding free speech. The openness required of federalism and a American common market would have necessitated such uniformity over time.
I know: I come off sounding like a reactionary and a constitutional fossil – a so-called paleofederalist. Most Americans would contend that we have moved far past that that quaint, bygone era when states functioned with many of the attributes of nationhood. But Calexit, Texit, the Second Vermont Republic and other incipient sovereignty movements emerging across the breadth of America may be changing all of this.
The California National Party, which comprises one pillar of the California independence movement, seems to be demanding a new vision of democracy, constitutional law and identity that runs counter to much of the rest of the nation.
Who knows where all of this will lead? These incipient autonomy movements may be pointing to a return to the original founding vision of American federalism. Maybe we ultimately will return to a constitutional arrangement in which states, at least, some states, will function as genuine sovereign states, with many of the hallmarks of nationhood.
Time will tell.