By Ben Lenhart
It is often easier to understand the American Constitution by comparing it to current events in other nations. Russia’s invasion of Ukraine is a case in point. In broad terms, our Constitution has two main purposes: first, it sets the “rules of the road” for how our governments—state and federal—operate, and, second, it identifies certain fundamental rights held by all Americans, guaranteeing those rights against government intrusion. This article looks at how these issues are being handled in Russia today and compares that to our Constitutional tradition.
Freedom of Speech
Despite having a constitution that theoretically protects free speech, Russia recently passed a law banning Russians from criticizing the invasion of Ukraine, going so far as to ban calling the war a “war.” Violators can be punished by 15 years in prison. In contrast, since the First Amendment was added in 1791 our Constitution has guaranteed freedom of speech with the simple statement: “Congress shall pass no law abridging the freedom of speech.” Despite this broad language, there was a time when Americans were also thrown in jail for criticizing a war. With World War I raging, Congress passed the Espionage and Sedition Acts, banning a wide range of speech including certain statements critical of the war effort. By doing nothing more than peacefully expressing their political views, many people ran afoul of these laws and were sent to jail.
This approach was challenged when two of our most famous Supreme Court justices, Oliver Wendell Homes and Louis Brandeis, began questioning the wisdom of jailing people based only on their speech. How, they asked, could a nation that truly believed in free speech punish people merely for peacefully expressing their views, especially when there was no sign that the speech would lead to law violation. In the 1920s, Holmes and Brandeis wrote a series of now famous dissents—in such cases as Abrams and Gitlow—sharply criticizing the court for failing to protect speech. Their answer to bad speech was more good speech—not banning the speech and jailing the speaker. That was, in their view, the genius of the First Amendment. They demanded that the court respect the “sweeping command, Congress shall pass no law … abridging the freedom of speech.” At the time, they were heavily criticized for their “pro speech/anti-war” stand, but their views carried the day, and for many decades now Americans have been free to express even very strong anti-war views (or anti-government views on any other topic) knowing that this speech is protected by the Constitution.
Freedom of the Press
Russia also has recently muzzled its press, ordering news outlets to publish only news about the “Special Military Operation” that was provided and “blessed” by official sources. In contrast, during the wars in Afghanistan or Iraq, U.S. newspapers relying on the “freedom of press” clause in the First Amendment were overflowing with news stories developed by the paper’s own reporting—not by “official sources”—that were highly critical of many aspects of the wars. In the Pentagon Papers case of 1971, President Nixon sought to stop the press from revealing documents that showed how the government hid important and damaging facts about the Vietnam War from the America people. In ruling against Nixon, and siding with the press, Justice Hugo Black wrote a powerful opinion that rings true today, and that should be required reading in Russia:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
One can only wonder about the impact in Russia today if the Russian people could read stories about the Ukraine war by a truly free Russian press.
Separation of Powers
It is no accident that the Constitution carefully separates and distributes power among the different parts of government. This separation is both horizontal (among the three branches of the federal government) and vertical (between the states and the federal government). In addition to separation of power, each branch is given power to “check and balance” the other branches: the House can defeat a bill passed in the Senate, and vice versa; the President can veto bills passed by both houses of Congress; Congress can override the veto; Congress can impeach the President; and the Supreme Court can overrule actions by Congress or the President. All this separation of powers and “checks and balances” comes at a high cost—it leads to a slow and inefficient government, often resulting in the government being unable to act because it cannot reach consensus. But the Constitution does not impose this cost lightly. Along with it comes a great benefit; the core purpose of separation of powers and checks and balances is to deter tyranny, to ensure that no part of government grows into a dictatorship with enough power to take away our fundamental freedoms and rule the country with an iron fist. This fear may seem far-fetched in America today, but one need only look across the Atlantic to see this fear being realized.
In the famous Youngstown Steel case in 1952, President Truman ordered the seizure of the steel mills during the Korean War. Truman claimed the action was critical for the war effort. The Supreme Court disagreed, and declared Truman’s order unconstitutional. What is more remarkable is that Truman—just like presidents before and after him—obeyed the court’s ruling even though he strongly disagreed, and even though the Court had no army and very little money or staff to enforce its ruling. Examples of the court “checking and balancing” our presidents are numerous. When the court ordered President Nixon to turn over his secret tapes during the Watergate scandal, Nixon obeyed. When the court reversed President Bush after 9/11 and said he must give due process protections to the inmates at Guantanamo Bay, Cuba, Bush obeyed. When the court overruled President Obama and said the government must have a warrant before searching a person’s cell phone, Obama obeyed. When the courts ruled against President Trump on a citizenship question on the census form, Trump obeyed. And when the court ruled against President Biden on the vaccine mandate for large employers, Biden obeyed and dropped the mandate.
Could these examples happen in Russia today? While Russia has separation of powers “on paper,” would any Russian court have the courage to rule against Putin on any major issue, especially one like the Youngstown Steel case that relates to the war effort? More importantly, even if a court did rule against Putin, would he obey? Would he allow himself to be overruled by another branch of government? If the answer to that is no, which seems likely, then the result is the very evil predicted by the Founders more than 230 years ago:
“Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power.” Patrick Henry
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” James Madison.
With all of its many flaws, our system of a democratically elected government, subject to strong limits imposed by the Constitution, and coupled with individual rights protected by the Constitution, is the best system we have found so far to avoid the terrible suffering and evils that can arise from the concentration of unchecked power into the hands of autocrat.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]