In the 27th annual Hugo L. Black Lecture on the freedom of expression, Professor Emeritus John E. Finn returned to campus to warn of constitutional originalism in a lecture titled “Gun Nuts and Speech Freaks: A Guide to the Alt-Constitution.” In his lecture, Finn critically analyzed the principles underlying the recent rise of alt-right interpretations of the Constitution, particularly in reference to the First and Second Amendments.
Finn, who taught at the University until last year, currently focuses on constitutional theory through his books, including “Peopling the Constitution.” An enthusiastic chef, Finn received a Grand Diplôme from the French Culinary Institute and most recently wrote “The Perfect Omelet: Essential Recipes for the Home Cook.”
Finn began his talk by describing the so-called “alt-Constitution” and its relevance in contemporary political debates.
“The alt-Constitution is only the one produced in Philadelphia, the Founders’ contribution,” Finn said. “It suggests strongly that those parts of the Constitution are divinely inspired and are perfect or nearly perfect—largely immune to the criticism of mere humans.”
Finn then described how this conception of the founders’ contributions as divine means that subsequent amendments—namely the 13th, 14th, and 15th—do not hold the same importance.
“The alt-Constitution is explicitly, avowedly, proudly white, Christian, and politically conservative,” he said. “The Constitution the alt-right invokes is not actually the Founders’ Constitution they claim it is, but carefully inspecting its provisions recalls not James Madison but Jim Crow.”
Finn argued that these subsequent amendments are integral to the Constitution, as well as the interpretation of the First and Second Amendments. Whereas the alt-right interpretation of the Founders’ amendments are both absolute and unassailable, Finn sees them as constrained by these later amendments.
“We can’t have a robust version of the First Amendment that sacrifices equal protection,” Finn said.
Finn outlined several tenants of the “alt-First Amendment” that are flawed: that all speech is protected, speech is protected everywhere, and that the right of speech applies mostly to conservative, white, Christian speakers. Regarding the first point, Finn said that the right to freedom of speech is not absolute, and that in fact not all speech is treated equally in that political speech is prized more than commercial speech.
“It compels us to think for ourselves about whether and when our commitment to free speech or expression should outweigh our commitment to other constitutional imperatives,” Finn said.
Finn also harbored strong reservations about the frequency of the First Amendment’s invocation in inapplicable situations. He emphasized that the amendment strictly applies to federal governance on speech, and not private interactions. As an example of this twisted interpretation, Finn cited prominent criticism of David Hogg as censoring conservatives after he encouraged advertisers to boycott Laura Ingraham’s show.
“The real First Amendment does not shield you from the criticisms of other citizens who take issue with what you say,” Finn said.
Finn’s lecture sparked questions in the audience regarding the source of this alt-Constitution. Finn said the originalist interpretation has persisted throughout American history, but is strongly related to the economic situation of the country.
“It is partly about feeling safe, partly about feeling cornered and trapped in a world with limited economic opportunity, and how much of it is masculinity?” Finn said. “But I do think economic hardship is a powerful contributor to the alt-right.”
Mason Mandell can be reached at email@example.com and on Twitter @MasonMandell.