We the People

 When we talk about the Constitution, we often talk as if it protects us, as if rights are stable guarantees enforced by courts/government. But reading Corey Brettschneider's The Presidents and the People after Shiffrin’s Unfit to Print complicates the picture, as constitutional rights start seeming less like automatic guarantees and more like protections that have to be constantly and actively defended. 

Shiffrin helps explain the two kinds of danger in the Adams administration. One danger is official speech that makes dissent (either seem or be) legally unsafe. Shiffrin argues that officials violate the 1st Amendment when they create “rational grounds for uncertainty about whether the officials affirm the legal free speech protections they are responsible to uphold” (1001). The Sedition Act and the administration’s treatment of critics fit this concern. 

A second danger is official falsehood that distorts public judgement. Shiffrin argues that “lies and culpable misrepresentations by government officials about public affairs” violate the First Amendment (993). Brettschneider’s discussion of Federalist attacks on Jefferson fits this concern because they distorted Jefferson’s commitment “to limit the role of religion in politics,” claiming that he “was an atheist seeking to rid America of any religion” (54). These claims function as politically useful falsehoods about a public figure’s positions, which I can see aligning with Shiffrin’s account of culpable misrepresentation by those in power. 

The courts did not stop this attack on dissent. They even participated in them. Justice Chase openly lobbied for the Sedition Act before it passed (48), then presided over the trial of Callender and restricted the defense’s ability to argue for a right to criticize the president (53). On Shiffrin’s account, nonjusticiability is normally a passive limit, a description of what courts can’t reach. The Adams period shows a stronger version of the problem, when official violations meet judicial complicity, and courts become co-violators rather than neutral adjudicators. Citizen action then becomes the only remaining locus of constitutional enforcement. Brettschneider shows editors and writers doing this job. Cooper published his trial transcript so the public could “condemn the acts by voting the Federalists out of power” (39), and the network of “Democratic-Republican newspaper editors and their readers who condemned Adams’s attacks on democracy played a central role in the 1800 election” (55). They worked through publicity, political costs, and through delayed and costly efforts. 

If institutions can align behind constitutional violations rather than check them, can constitutional protection ever be something that we simply have? Or is it something that citizens always have to defend? If constitutional defense depends on citizen action, who actually makes up “We the People” in practice? Brettschneider perhaps suggests the whole public, but the first chapters shows a smaller group of editors, lawyers, politicians, and people with access to money, print networks, and public audiences. Although we haven’t read the section in which Brettschneider talks about figures like Douglass, I can imagine that this complicates the picture because it shows that people without inherited privilege can also become powerful constitutional actors. But this also raises a question: should the protection of rights depend on whether someone has those resources, or whether they can overcome those barriers? If defending rights requires building a platform and gaining influence, then people without those resources may have rights in theory while relying on others to make those rights effective in practice.