Two weeks ago, I wrote a column, “A Modest Proposal,” lamenting the Supreme Court’s Westboro Baptist Church decision, and making what seemed to me the obvious observation that it is a philosophical and historical confusion to imagine that the Constitution’s guarantee of free speech ever needed to be interpreted in so barbarically libertarian a fashion. Not that everyone would see it as obvious.
The Constitution was drafted in an age that, whatever its many grievous faults, still understood the difference between a liberty protected by society and an individual license transcendent of society; in the 1780s, any rabble behaving as the Westboro people do would have been arrested, incarcerated, and fined, and no one would have thought this an abridgement of their chartered rights, nor would anyone have pretended that simple prudence is impotent to recognize intrinsically abominable abuses of those rights.