The Reason for Our Rights


Anniversaries should be a time of reflection, a time for remembering the living past and realigning oneself to the vows or principles (if any) which are being marked by the occasion. This was held true last December when NATIONAL REVIEW ONLINE published two articles in honor of the 225th anniversary of the Bill of Rights. Although both articles spoke of the Bill of Rights, they were polar opposites. Arthur Milikh claims that it is high time American rethought the Bill of Rights. Recognizing that the Bill has been held captive by lawyers and courts, Milikh tries to accomplish something that is very rarely seen nowadays–he attempts to give a teleological reason for the rights we possess by asking the fundamental question: What are our rights for? Milikh argued that the Bill of Rights was placed inside the Constitution in order to preserve the Republic. In this light, for example, the freedom of speech was never intended to protect any speech indiscriminately but only that speech that cultivated the “virtues of deliberation among citizens” so that men may cultivate the ability to reason and to defend one’s position rationally. This, in turn, brings about “a new image of reverence” in which men respect each other for holding rationality in common, thereby overcoming the narrow tribal identifications of race, religion, and ideology. This history, for Milikh, means that many of the laws on the books today are ultimately self-defeating since many of them–such as laws protecting pornography and flag-burning–are non-rational, as they do not encourage and support rational dialogue. This, in turn, leads many people to disrespect the law, a state of being which, Milikh implies, may lead to the crumbling of the country since laws are needed to “interest men in the destiny of their country.” The implied conclusion for Milikh is that not all speech can be protected by the First Amendment and that it is a very dangerous situation for all forms of speech to be so protected.

In opposition to this line of thinking, Roger Pilon declares that laws protecting free speech are based not on the “content of speech but on the right to speak.” As such, Pilon finds Milikh’s “rethinking” of the Bill of Rights, a slippery slope that immediately dissolves into tyranny. After all, the freedom to speak is a right that is inherent in every individual and which is “essential to human dignity.” By passing laws which decide which speech is to be protected and which is not to be protected in order to inoculate virtue among the people, Pilon sees statecraft becoming soulcraft since the virtuous citizens will be required to make laws outlawing all speech that they deem to be irrational and unvirtuous. This, in turn, will require the state to become larger and more powerful since sanctions against “unrespectable speech” will require more than merely “social sanctions.” In other words, the type of society which Milikh’s vision produces is a modern police state, one that is simply ruled by the right rather than the left. Pilon concludes by saying that such a “rethinking” of the First Amendment is dangerous because it is not respectable speech that is in danger of being censored but “foolish or unpopular speech that is ever in peril.” The genius of the Amendment, for Pilon, is that it does not rest on the content of speech but rather simply on the right to speak. In this vein, Pilon praises former Justice Scalia in his opposition to flag-burning bans.

Although Milikh and Pilon are in opposition, both of their views have glimmers of the truth but also contain some serious flaws that makes it imprudent for either of their views to be established within the mindset of the general people.

Why Do We Have Rights?

Pilon is right to point out that the freedom of speech is a natural right and, as such, it is inherent in the individual merely by being human. The problem that Pilon runs into is that he does not ask why men have the right of free speech as men? In other words, what is the end of free speech? The answer to that question can only be to communicate the truth. Man is a rational person; that is what separates him from the rest of the animal kingdom. As such, man is the only earthly creature which can see the truth in its fullest.  Rationality and speech are closely linked. It may be a mistake to say that the two are really the same thing but it is true that rationality and speech are tied tightly together since our rationality is publicized (not, it should be noted, actualized) by making our thoughts known to our fellows. As such, the freedom of speech and the freedom to write (the press) are vitally important since these are the means by which we communicate with our neighbors, our countrymen and our fellow man in general. Rational speech can easily be defined as such: Speech which aligns itself with reality and, thus, the truth. This does not mean that one’s speech must align itself completely with reality; individuals are fallible and our finite minds do not come pre-programmed with the entire system of the cosmos, both physical and metaphysical. That is why free speech is necessary; it allows men to come together in their shared capacity of rationality to reason and discover the truth together, as Socrates would say. There is an even deeper reason why reality and truth is end or reason of speech and this has to do with the nature of words themselves. Words are not just signs of reality, though they definitely are that; words—language—is the “house of Being” as philosopher Max Heidegger put it and “For this reason the misuse of language…destroys our authentic relation to things.”

This line of logic does lead to a very definite conclusion, however: Only rational speech is true speech since it is the only type of speech that fulfills the end or purpose of speech. Pilon seems to grasp this truth to an extent, as he does realize that speech can be used foolishly but he does not come to the logical conclusion that such foolish speech should not and cannot be protected by the First Amendment as foolish speech is actually a perversion of speech as it does not fulfill the end of speech. The reason for this is that Pilon has the danger of a powerful State ever in his mind; to stop the State from accruing too much power, such evils as flag burning and pornography must not only be tolerated but also granted First Amendment protection. But Pilon makes two mistakes in this regard. In the first place, though he says that placing limits on speech turns statecraft into soulcraft, it is true, contra Pilon, that the state does have a duty in protecting and promoting the common good. Since the nature of man is rational, man can only be truly happy with what is true and what is good. That is why so many thinkers—from Cicero and Aristotle to the Founding Fathers—declared that the true happiness of man was found in virtue. The state, as the natural and therefore good uniting of men into society, is not merely to be neutral between two contradictory propositions and allow people to decide which one to choose for themselves; the state is not to hold out a prolife and a pro-abortion position as equally valid and good. The state that has the common good truly in mind, will come down on the side of the prolife position every time. Furthermore, fears of the central government creating speech codes is a strawman argument. Such an act would be and is unconstitutional but according to the original understanding the Amendment, local polities and governments could outlaw certain types of irrational speech or expression, such as flag burning. Some local governments have done similar actions; Ave Marie, Florida, home of Ave Marie University, outlaws pornography within its jurisdiction. These are the acts of power-made polities but efforts to secure the common good for people.

Are All Laws Sacred?

Milikh’s position—his rethinking of the First Amendment—also possesses certain problems. Although he never articulates why some speech should not be protected by the Amendment (other than the fact that it is irrational) and, thus, never says what the end of speech is, he is correct in that not all speech is protected by the Constitution. Where Milikh errs is in the sacrosanct place that he places the law. Now, to be sure, the law is very important in the matter of government and society in general. Law is also a teacher, as Milikh recognizes and the law should be rational; as Thomas Aquinas says, law is rationality set down for the common good of the state. But, contrary to what he suggests, the law cannot be the only teacher of good and evil; if that were the case, morality would be reduced to legality when, in truth, morality is supposed to be much deeper and wider than legality. Following that, simply because a thing is evil, it does not follow that it should be made illegal. The reason for this is not that the evil is not recognized as evil but that it is recognized as not always prudent to do so, especially if the legal eradication of the evil would, in itself, lead to other evils, such as the curtailing of too many freedoms. For example, lying is wrong but the state can only prudently outlaw some forms of lying (such as perjury) without gaining fantastic powers over the lives of its citizens. This is where the “little platoons” of families, churches, organizations and neighborhoods, so praised by Edmund Burke, come into play. Since they should be much more intimately connected with individuals than the State, it is in these platoons that an aversion to moral and legal evils should be properly installed.

These little platoons require their own foundation, however and that foundation cannot be found in the law, making a circular argument. Rather, the foundation for Burke’s platoons and the law itself is in what Russell Kirk called the “moral imagination.” For Kirk, the moral imagination exists to teach us what it means to be truly human and it can be found most powerfully in the great literary works of the West, in the works of Plato, Cicero, Vergil, Pope, Dante, Shakespeare; even something as supposedly “juvenile” as Treasure Island, Kirk says, can instruct the moral imagination. If people have a true sense of what it means to be human—if they have a grasp of what philosopher Peter Kreeft calls the three transcendentals of the True, the Beautiful, and the Good—not only will the laws be rational and good, but people will recognize them as rational and obey them because it is the right thing to do for the community and for themselves.

The Answer to the Riddle

So many problems which face us in modern America run so much deeper than politics that political solutions will not suffice anymore. A “rethinking” of the First Amendment needs to be done, but its rejuvenation will not come merely from laws. The passing of more laws will actually be a sign of the Republic’s continuing collapse since it will demonstrate that individuals are incapable of ruling themselves. This realization is the first step that must be taken.

The second step is to destroy the nominalist distinctions present in Pilon’s thinking. The distinction that needs to be made is not between popular and unpopular speech, as Pilon does, but between speech that reflects the truth and that which does not. And, again, while it may not be prudent to legally forbid genuine foolish or evil speech in all cases, the distinction between the two must be clearly present.

Thirdly, and most challenging, the moral imagination of Americans and Westerners must be rekindled. This means that it is necessary not only to teach minds but to transform souls. This can and must be done not only in re-introducing the great works of literature and art but in creating great works, not only in reforming schools but in creating new schools. It will mean not only arguing with statistics and logic (which we must continue to do) but also through story and poetry. As C.S. Lewis said, “Reason is the natural organ of truth but imagination is the organ of understanding.” All of this will take time but Rome was not built in a day.


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