Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality
26 Canadian Journal of Law and Jurisprudence 293-311 (2013)
19 Pages Posted: 27 Sep 2013
Date Written: July 1, 2013
This article re-examines the central distinction between the libertarian approach and the egalitarian approach to campaign finance regulation. It argues, first, that the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, this article advances the normative claim that democracies should seek to incorporate both the libertarian approach and the egalitarian approach within constitutional law. I show that the conventional approach (as exemplified by the theories of Owen Fiss and Ronald Dworkin), however, seek to reconcile liberty and equality by rendering each value an aspect of the other. In contrast to the conventional approach, I claim that the conflict between liberty and equality cannot and should not be resolved or reconciled. Rather than choosing one value over the other, or reconciling these values by redefining them, I argue that it is vital to maintain this tension by instantiating the conflict between liberty and equality in law. Democracy is better served when the law contains an explicit tension between these foundational values.
After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I argue, first, that the campaign finance regimes in the United States and Canada are better understood as falling along the libertarian-egalitarian spectrum, rather than as being either egalitarian or libertarian. Second, I use the normative framework to evaluate the treatment of electoral speech in the these two countries. I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value — liberty or equality — at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.
Keywords: freedom of speech, libertarian and egalitarian approaches, campaign finance, comparative constitutional law, democratic theory
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