Kulturkampf

[benji]

The First and Second Amendments tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups. Both amendments would be improved by explicitly situating individual rights within the framework of “domestic tranquility” and the “general welfare” set out in the Constitution’s preamble.

Making such an edit to the First Amendment would provide stronger and fairer protections for the right of expression, including by acknowledging, as many state constitutions do, that every person remains responsible for abuses of that right. (Such a modification would, for example, help undo the damage caused by the Supreme Court’s decision in Citizens United and remove constitutional barriers to reasonable campaign-finance laws that promote democratic legitimacy.) In addition, the implicit principle of the separation of church and state should be made explicit:

Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.