As Murray Rothbard, writing in Power and Market, noted: “Democracy may be thought of, not so much as a value in itself, but as a possible method for achieving other desired ends…Democracy, after all, is simply a method of choosing governors and issues, and it is not so surprising that it might have value largely to the extent that it serves as a means to other political ends.”
In several western countries, the legal framework protecting individual rights is challenged. Political activists and intellectuals are taking advantage of the social and economic discontentment to promote centralized forms of governance as a solution to societal and economic problems. They argue that this unprecedented reinforcement of centralized power should inevitably come with a redefinition and reduction of individual rights. In this context, individual rights, such as private property rights and freedom of speech, are purposely named “negative” rights because those are individual rights which protect a person against the aggression and coercion of others. These “negative” rights are increasingly constrained and progressively replaced with “positive” or “social” freedoms that may only be guaranteed with more government planning and redistributive control to ensure that individual action remains confined within the collective of the society as defined and enforced by the government.
Free Speech in Europe: Always More Regulations and Constraints
The Republic of France for instance has enacted more than 400 laws to regulate and restrict the right to express opinion. Those laws are often sponsored by advocacy groups to influence public discourse on sensitive topics. Their objective is to promote the viewpoints considered as admissible while using the legal framework as a weapon to censor non-compliant opinions. Recently, the French government attempted to go a big step further in their campaign of censorship with the “Avia law” that was proposed to strengthen the fight against “hate speech” online. To summarize the core principles of this law, it suffices to say that it was based on a system that any visitor of an online platform could use to flag “manifestly illegal” content (among a long pre-set list of offenses). Once this happened, the notified online service provider was required to remove it within 24 hours or could face a penalty of 250,000 Euros and up to one year imprisonment. A deadline of one hour was given by the administrative authority to remove illegal terrorist content.
A particularity of this law was that no judge or any other third party would have been involved in the evaluation of the “illegal” character of the incriminated contents. It is the administrative authority that promoted the law which would have acted as judge. As it was not enough, ensuring the application of such law could have been done only by following rather broad subjective criteria because, from a legal perspective, the concept of “hate” is not even formally defined in the French legal system. The law faced fierce opposition and was invalidated by the French constitutional court after representatives of the French Senate requested a detailed review of the case.
The attempts of the French government to regulate and censor what is left of “free speech” are not restricted to France. French authorities have been championing their law enforcement model against illegal online content at the European Union level with the support of Germany. Those initiatives got noticed and France was recently flagged as no less than a major threat against free speech by U.S. representatives.
The Case for Amending the U.S. Constitution
In the United States, one observes waves of criticisms targeting the constitutional amendments considered by some activists and intellectuals as anti-democratic abnormalities preventing societal changes to come into effect. Calls for removing or modifying the first amendment to shut down hate speech are louder than ever but still considered with skepticism. The right to keep and bear arms, i.e. the right of citizens to safeguard themselves, and private property rights are also under threat. Intellectuals do not hesitate to deny the importance of property rights and this makes activists requesting their abolition or restriction more confident.
Since targeting “negative” rights that guarantee individual freedoms is not enough, proponents of larger constitutional changes also focus on what they named the “non-democratic” nature of the U.S. Constitution in order to make a case that would see it amended.
The Citizen Climate Convention: A Trojan Horse Against Individual Freedoms?
In France, amending the constitution is considered a perfectly legitimate means to support and strengthen an ideological agenda. The latest attempt of this type was made by the “Citizen Climate Convention” (CCC) which suggested rewriting the first article of the French Constitution as follows: “The reconciliation of rights, freedoms and principles cannot compromise the preservation of the environment, the common heritage of mankind.” The CCC was an experiment of “direct democracy” established under the auspices of the French President to answer some of the demands made in the wave of the public protests which have been taking place in major French cities during the last months. The CCC was constituted of 150 citizens “randomly” selected to work on topics related to the societal impacts of climate change.
The role of the CCC was to provide recommendations to guide the transformation of the society and its transition towards eco-friendly energy sources. The members of the CCC were accompanied by a Governance Committee providing guidance and counseling. All members of this committee came from the left of the political spectrum with members of left-leaning unions and think thanks, ecologists, and NGO activists included. No representative of the private sector were to be found, and while supporters of renewable and green energies were well represented, representatives of the other sectors of the energy industry were not invited to participate in the discussions.
This lack of diversity of thought and opinion became apparent when the report of the CCC was released. This report, organized around 150 propositions, was a concentrated mixture of coercive measures and restrictions of all kinds accompanied with economic recipes such as rent and price controls, with new taxes and regulations joined together in a call for more central planning policies. It is worth emphasizing that the rewriting of the constitution suggested by the CCC was rejected by the President who argued that “protection of the environment cannot be placed above public freedoms.” This statement makes explicit that, on a long term basis, even the initial promoters of the CCC feared that this amendment would have lead to either the suppression of individual freedoms in the name of environmental causes or to their subordination to policies which could have been voted on the basis of this amendment.
Fundamental laws safeguarding the equilibrium between the prerogatives of the state and the fundamental rights of the citizenry are being questioned by proponents of constitutional changes which would give even more power to already intrusive governmental and administrative authorities. Higher constitutional institutions have taken their responsibilities to prevent the most radical of these demands from coming into effect but one can reasonably assume that new attempts will be made to force and accelerate those changes.
Brice M. Vanhaelen is a scientist from Belgium.