The Second Bill of Rights by Cass Sunstein

Author:Cass Sunstein [CASS R. SUNSTEIN]
Language: eng
Format: epub
Publisher: Basic Books
Published: 2012-01-03T05:00:00+00:00

8

America’s Pragmatic Constitution

What excited Roosevelt was not grand economic or political theory but concrete achievements that people could touch and see and use.

James MacGregor Burns

IN THE 1980s, I was one of four Westerners asked to meet in Prague with a small group of people entrusted with the task of producing a new constitution for Ukraine. The discussion proceeded straightforwardly and well, until we came to the subject of freedom of speech. Two of the Ukrainian drafters asked, “Shouldn’t we put in a provision requiring the press to be objective?” The outsiders were flabbergasted by the question. I responded, “Isn’t the point of freedom of speech to allow people not to be objective—to say whatever they want?” My answer was met with an awkward silence, as if I had spoken nonsense.

At the time, it was not easy for me to understand what the skepticism was about. How could the Ukrainian constitution require the press to be “objective”? How could its drafters seek to impose that requirement through their founding document? The Ukrainians were not tyrants. On the contrary, they were clearly committed to democracy and freedom of the press. Some of them had played pivotal roles in breaking up the Soviet Union—not through violence but through sustained arguments against communist rule. True, the drafters did want the constitution to require the press to be “objective.” But this was not because they sought to authorize the government to punish anyone for a lack of objectivity. Their goal was to express an aspiration—to the effect that their journalists should try, as best they could, to be objective and truthful. In meeting my question with silence, they were saying, in essence, that I had entirely missed the point. And indeed I had, if the constitution was understood to express national aspirations rather than specify enforceable commitments.

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