Why the Constitution Won't Save You

On the conquest of America’s unwritten constitution

Last week the U.S. Supreme Court considered arguments in a landmark case on the legality of our managerial regime’s metastasizing censorship-industrial complex. At issue is whether the federal government may coerce and/or collude with social media companies in order to systematically suppress the communications of its citizens, or whether this is a violation of their constitutional right to free speech. By now the evidence of the Biden administration’s sweeping censorship efforts is overwhelming. Many legal observers were therefore surprised when, during the hearing, it quickly became apparent that a majority of the court’s justices seem to be convinced by a counter-argument that actually it’s the government who’s the real victim in this case – because what “free speech” really means is that the government has a right to tell Facebook that you need to stfu.

The court’s newest and most innovative justice, Ketanji Brown Jackson, stole the headlines with comments about how she was “really worried” about “the First Amendment hamstringing the government in significant ways in the most important time periods” (i.e. elections involving Donald Trump). But even some of the court’s more allegedly “conservative” justices like Brett Kavanaugh and Amy Coney Barrett appeared openly sympathetic to the idea that it’s more important to preserve the national security state’s uninhibited power to bully platforms into silencing information they consider “harmful” than it is to preserve fundamental individual rights.

In short, although a ruling on the issue won’t be released until this summer, as of now the Supreme Court seems poised to effectively enshrine the legality of mass state censorship and deliver what could be a mortal blow to America’s tradition of free speech. The China convergence certainly seems to be proceeding apace.¹

Many conservative and classical-liberal American political commentators seem genuinely shocked by this development. They assumed this should be a pretty open and shut case, with the federal government’s behavior – being a clear violation of what is spelled out in black and white by the First Amendment of the Constitution – sure to be righteously smacked down by the conservative-leaning court and our inalienable rights reaffirmed. But this assumption was deeply naïve. Moreover, in fact their broader, rather quintessentially American faith in the Constitution’s ability to establish and protect foundational liberties was probably also always badly misplaced.

Perhaps this unfortunate moment can therefore at least offer an opportunity to induce some much-needed realism about the Constitution, the actuality of what it is, and the inherent limit to the aid it can offer to resistance to tyranny.