To the Editor:

I object to the message Walter Berns purports to find in my book, Constitutional Faith [“Flag-Burning & Other Modes of Expression,” October 1989]. He starts off by correctly stating that I suggest the possibility that “[t]he death of ‘constitutionalism’ may be the central event of our time, just as the death of God was that of the past century (and for much the same reason).” Indeed, if I correctly understand the thought of Mr. Berns (and other followers of Leo Strauss), I think we may be in substantial agreement on this point, at least descriptively. I also do not object to his quoting me for the (descriptive) proposition that, in contemporary positivist jurisprudence, “law is stripped of any moral anchoring.”

What is outrageous occurs in what then follows:

The “self” exists in this void [i.e., a world deprived of moral anchoring]; it is merely will; it becomes what it is only by asserting—in Nietzsche’s formulation—“the will to power,” and the strongest will must prevail. This prospect does not frighten Levinson: “Political institutions,” he says, “thus become the forum for the triumph of the wil,” the phrase first uttered by Hitler’s minister of propaganda, Joseph Goebbels, and rendered memorable (appallingly so, one would have thought) by Hitler’s favorite film-maker, Leni Riefenstahl, in The Triumph of the Wil. . . .

As Mr. Berns may well suspect, I knew exactly hat I was doing when I used the phrase “triumph of the will,” and any fair reader of my book would realize that it did not commend that vision of politics. It can be found in a chapter entitled, fittingly enough, “The Moral Dimension of Constitutional Faith,” whose thesis is that it is impossible to understand why one would venerate the Constitution unless there was some reason to believe that the Constitution in fact necessarily (and not simply contingently) embraces an acceptable moral vision.

The offending quotation comes at the conclusion of six pages discussing the transformation in American political thought from a “republican” to a “liberal” political sensibility, and I emphasize the priority placed by liberalism on will. (Consider Jefferson’s comment that it “was the will of the nation which makes the law obligatory.”) I argue that “[i]n the past, law was legitimate because it was based on moral principles; in the future, law would receive its legitimacy from being the incarnation of the focused energies of the body politic.” And, I continue, this “transition of the basis of law from principle to will has the effect of analytically separating law from morality; there is the dissolution of any guarantee that fidelity to law necessarily will mean equal fidelity to principles of moral conduct.” Finally, after quoting James Wilson’s comments at the Philadelphia convention that laws “may be unjust, may be unwise, may be dangerous, may be destructive,” but yet not unconstitutional, I conclude:

Wilson pointed toward what was to become the dominant view of law for future generations (and certainly the view emphasized today at most major law schools): law is stripped of any moral anchoring, becoming instead the product of specific political institutions enjoying power under the Constitution. Political institutions thus become the forum for the triumph of the will, expressed as positive law. . . .

I believe that this description of the main thrust of American thought concerning law is correct. Does Mr. Berns really disagree? However, I defy him to provide any evidence that I celebrate this development, particularly as I go on later in the chapter to present highly critical discussions of John Marshall’s jurisprudence that legitimized chattel slavery (by distinguishing the task of “the jurist” from that of “the moralist”) and of Oliver Wendell Holmes’s jurisprudence.

What I find so deeply ironic about Mr. Berns’s calumny is not only that many aspects of our respective analyses are quite congruent (even though we admittedly go off in drastically different directions), but that the view I am describing is precisely that held by Robert Bork, a great favorite of his. . . . But I am less concerned about this latter point than I am about being rhetorically joined, even for an instant, in political comradeship with Joseph Goebbels. I expect better of Walter Berns.

Sanford Levinson
School of Law
University of Texas
Austin, Texas

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To the Editor:

Walter Berns’s “Flag-Burning & Other Modes of Expression” raises many important questions, especially in regard to art and freedom of expression. I would like to raise an additional point concerning what I believe to be a crucial distinction between art consisting of inanimate raw material shaped by the artist’s imagination, and art consisting of the capture on film of images of actual events. The former involves no loss of human life, liberty, or health. The latter potentially can result in the loss of all three. . . .

When the creation of images of actual events involves the deliberate staging of criminal deeds (some of them perhaps harmful to the welfare of the photographed persons), then the resulting “art” should not become a vehicle for the artist’s ascent to fame and fortune. Rather it should serve as evidential basis for the artist’s prosecution for criminal deeds, even if not for the obscenity of the resulting photographs. . . .

In the case of the exhibit of Robert Mapplethorpe’s photographs, for example, Time magazine observed, in its coverage of the controversy, that some of the photographs of children in an erotic context might be prosecutable under laws against child pornography. Since there has been a consensus ever since 1978 that child pornography is beyond the protection of the First Amendment, prosecutors have taken on such cases with virtual certainty that the courts would mount no constitutional challenges. Were he alive today, would Mapplethorpe’s status as an artistic poseur somehow remove him from the threat of prosecution? Most would say not.

What about the performance of humiliating, even physically harmful, deeds in front of the photographic lens? Did the person in the whip-handle photograph willingly consent to such violence upon his person? Is there any chance that this photograph was obtained against the will of the subject as in the case of the star of the pornographic film Deep Throat, who contended that she was forced at gunpoint to perform the deeds which made millions of dollars for the film’s underworld producers? Whatever the specific circumstances, . . . potential abuses like these require government regulation. Film-makers’ freedom stops precisely where the health, life, or liberty of film subjects is endangered. . . .

Mr. Berns writes: “Judges may not be able to devise a rule of law marking the difference between Manet and Mapplethorpe. . . .” This is quite true, but no one is asking them to devise such a rule. The crucial distinction to be drawn is that between the manipulation of inanimate matter on the one hand, and the photographing of human bodies and deeds on the other. If Mapplethorpe’s “artistic” productions had taken the form of paintings or sculptures, one might walk away merely disturbed or disgusted. But since the images are photographs, one walks away certain that the violence and the child abuse actually happened; and that someone is growing rich and famous doing such things to other people. This is the essential distinction, not whether or not Mapplethorpe’s work has artistic merit. . . .

Mark Ross Bateman
St. Clair Shores, Michigan

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To the Editor:

Walter Berns . . . is inconsistent and hence unpersuasive when he claims that courts act appropriately when they meddle in the area of political expression but not in that of artistic expression (the distinction between “speech” and “expression” seems here semantic quibbling). Why should the two be treated differently? Would the display of a painting depicting the American flag being burned by angry protesters be considered a legitimate form of artistic expression but the act not? . . . Isn’t the boundary between the artistic and the political just as blurry as that between the artistic and the pornographic?

Does flag-burning threaten our national security any more than burning a man in effigy, burning a cross, or burning books—the last-named admittedly much worse in its possible consequences than the other two acts of destruction? Flags, crosses, and persons in effigy are all easily replaced; books not so. The destruction of a symbol cannot inflict even a scratch on what is symbolized, that which is truly sacred (and may even strengthen what is symbolized through backlash).

Mr. Berns assumes with unexplained certainty that Gregory Johnson’s act of flag-burning was motivated primarily by the thrill of violating a law: “Of course,” he writes, “deprived now of flag-burning—because it is no longer illegal—Johnson and his friends will have to find new ways to aggress against the symbols, the conventions, or the mores which . . . provide the foundation of America’s laws and its political life.” Mr. Berns does not explain how he knows that Johnson burned the flag precisely because he thought it was illegal. Until otherwise revealed, it would seem more likely that his primary motivation as anger against his country.

And what about the cost, feasibility, and necessity of enforcing laws criminalizing desecration of the flag? Clearly, the FBI has more important things to do.

Flag-burning and other forms of desecration do frequently violate existing laws and ordinances. These, coupled with the patriotic feelings of the vast majority of Americans, preclude an epidemic of flag-burning, and, as already mentioned, isolated acts of flag-burning most assuredly strengthen those very same patriotic feelings of which the poor flag-burner would rid us. Besides, what is the crime if, angry with my country (and goodness knows, there are occasions when even a patriot can get angry with his country), and not being artistically gifted enough to paint a flag-burning, I buy an American flag and burn it? Is this not a relatively harmless, inconsequential escape valve for my anger compared to espionage, assassination, sabotage, or even membership in extremist political parties, the last of which is legal? . . .

It is beside the point whether or not the Constitution is designed to protect “speech” but not “expression,” be it political, religious, artistic, pornographic, or otherwise. Is not the original and ultimate purpose of the Constitution to protect persons and not symbols?

Sally B. Reynolds
Raleigh, North Carolina

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To the Editor:

Walter Berns’s suggestion that the Constitution protects only “sober” political speech evinces an incomplete understanding of what free speech is all about.

Freedom of speech is necessary not so that any fool with a soapbox can speak his piece, but so that we, the people, can exercise meaningful self-government. . . . The Constitution necessarily protects the flag-burner and the Communist so that we citizens can react politically, with horror if we like, to the information they impart. I expect never to exercise the right to call for dictatorship, and I get no joy from knowing that others may do so, but I do like thinking that I, and not the government, will have the opportunity and responsibility to reject the call when it is made. Only by protecting the remonstrant can I assure my sovereignty.

Viewed as an inherent element of self-government, free speech needs no relativist defense. Let us suppose that angry political speech, taken at face value, does not aid the search for political truth. Let us suppose further that advocacy of fascism or Communism can never merit favorable action. A sophisticated electorate still needs to hear what the people have to say. Whatever Gregory Johnson means by burning the flag, his action, which admittedly hurts some people’s feelings but does not harm individual reputations, provides politically useful information about Angst in the populace. I do not want to deprive myself of that information just because Mr. Johnson chooses to deliver it in an offensive way, or to accompany it with (or even embody it in) an unacceptable solution. If the only thing I glean from Mr. Johnson’s activities is that there is one more pinko, utopian hothead in America, Mr. Johnson may not be pleased, but the First Amendment will have done its job. . . .

I do not mean to suggest by this philosophical objection that a law against flag-burning is otherwise workable. . . . A better student of mathematics and philosophy could probably show that political censorship is so inconsistent with self-government that an effective law of repression cannot be framed without doing violence to the rest of the system. We can forbid the act but not the message, including its emotional content and its power to offend. The medium is not the message, and no amount of legislation can make it so.

Lawrence J. Kramer
Bryn Mawr, Pennsylvania

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To the Editor:

With all due respect for Walter Berns’s . . . exposition, the question surrounding Senator Jesse Helms’s legislative reaction to the Mapplethorpe and Serrano photographs is not one of First Amendment rights but of the government’s financial promotion of such supposed art. I assume the Founders did not intend that we should understand the First Amendment to include the right to a government subsidy.

Perhaps there is no place in modern America to which we can escape from such trash, but at least we may expect our government not to pick our pockets to subsidize the creation of it.

Bruce M. Fingerhut
South Bend, Indiana

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To the Editor:

I would be grateful for Walter Berns’s comments on one aspect of the substitution of the word “expression” for “speech” in the First Amendment. It is this: if the word “speech” can be properly said to have been intended to cover a broad range of actions which include flag-burning, why did the men who wrote the First Amendment go on to be quite specific about the right to “peaceably assemble and petition for redress of grievances”? To assemble in protest is surely a form of political expression while to petition is surely speech, even if it is written. But if “speech” means “expression,” the rest is simply redundant. So why was it included?

Saul David
Van Nuys, California

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To the Editor:

Why was the Washington intelligentsia so united in praising and attending the Robert Mapplethorpe exhibit? Because it allowed them to indulge their prurient curiosities at an unusually high level of kinkiness while at the same time feeling morally superior to those of us who did not care to attend. Patrons of ordinary peepshows are not granted this indulgence, and sleaziness and self-righteousness are so rarely compatible that the opportunity to combine them in this case was irresistible.

Michael Hendry
Charlottesville, Virginia

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Walter Berns writes:

Sanford Levinson objects to being “rhetorically joined, even for an instant, in political comradeship with Joseph Goebbels [and Leni Riefenstahl].” I should hope so. That’s why I indicated my dismay that he, a prominent American law professor and constitutional scholar, should join them (if only “rhetorically”) by adopting their “appalling” formulation (as I put it) when forecasting our political future. (“Political institutions,” he wrote, “thus become the forum for the triumph of the will.”) The issue between us is not whether he “celebrate[s]” this development—I made no such charge—but, rather, whether, thinking as he does, he can reasonably or consistently object to it, and whether he (having been persuaded by Martin Heidegger, and more immediately by Paul de Man, Michel Foucault, Roland Barthes, and Jacques Derrida) can persuade his students to object to it. He says in his book that “those of us who are classified as nihilists have drunk deeply at the well of those branches of [postmodernist] thought most skeptical of concepts like truth,” and then, announcing his particular indebtedness to Richard Rorty, proceeds to endorse his view that “the establishment of fascism would establish ‘fascism [as] the truth of man, and so much the worse for us.’” With all respect, I don’t think Mr. Levinson is doing much, if anything, to prevent that from happening.

Alas, Mark Ross Bateman, there is no “chance that [the whip-handle] photograph was obtained against the will of the subject.” The anus involved in it—or so I am told—was Mr. Mapplethorpe’s own. (Which, of course, raises the question of who the photographer was.)

As to the possibility of a prosecution under the child-pornography laws, the director of the Corcoran Gallery, Christina Orr-Cahall, was warned of this by legal counsel, a fact little noted in the press or by her colleagues on the Corcoran board when, anxious to reestablish their anti-bourgeois credentials, they tossed her to the baying wolves in the press and the so-called art community.

Then, unlike Mr. Bateman, I do not think Mapplethorpe’s work would be any less objectionable had it taken “the form of paintings or sculptures.” The issue here—I am referring only to the photographs that gave rise to the controversy—is not, primarily, the physical harm done to the photographer’s subject—what about the harm, physical and spiritual, done to the painter’s or sculptor’s model?—but, rather, the meaning of art. “What is poetry which does not save/Nations or people?” asks Czeslaw Milosz, and, as the following statement suggests, the same might be asked of painting and the plastic arts:

In art the mass of the people no longer seek consolation and exaltation, but those who are refined, rich, unoccupied, who are distillers of quintessences, seek what is new, strange, original, extravagant, scandalous. I myself, since Cubism and before, have satisfied these masters and critics with all the changing oddities which have passed through my head, and the less they understood me, the more they admired me. By amusing myself with all these games, with all these absurdities, puzzles, rebuses, arabesques, I became famous and that very quickly. And fame for a painter means sales, gains, fortune, riches. And today, as you know, I am celebrated, I am rich. But when I am alone with myself, I have not the courage to think of myself as an artist in the great and ancient sense of the term. Giotto, Titian, Rembrandt, were great painters. I am only a public entertainer who has understood his times and exploited as best he could the imbecility, the vanity, the cupidity of his contemporaries. Mine is a bitter confession, more painful than it may appear, but it has the merit of being sincere.

The author of this statement (for which I am indebted to Herbert I. London) was Pablo Picasso.

I wonder if Sally B. Reynolds is justified in thinking the law should ignore cross and effigy burnings. Of a cross on the steps of the Lincoln Memorial? Of an effigy of Martin Luther King, Jr. in Bedford-Stuyvesant?

She is, of course, correct when she says that I cannot be certain that Gregory Johnson burned the flag “precisely because he thought it was illegal.” But if, as I wrote, he was moved primarily by anger, and if, as Aristotle teaches us, anger is the pain suffered at the hands of another combined with the pleasure of exacting, or contemplating, revenge, then I don’t think it can be satisfied by a sober, and legal, remonstrance.

She is also correct in thinking that the response to flag-burning may be a strengthening of “patriotic feelings” in the community at large, and that punishing it may do more harm than good. The same might be said about a constitutional amendment to permit such punishment, which is why, although asked, I refused to join in the effort to adopt one.

Lawrence J. Kramer says free speech—by which he means, anything goes—“needs no relativist defense,” a statement contradicted by the leading authority on free speech so understood, legal historian Leonard W. Levy. Levy writes (in his Legacy of Suppression): “Freedom of speech could not become a civil liberty until the truth of men’s opinions . . . was regarded as relative rather than absolute.”

I agree with Bruce M. Fingerhut that one issue raised in the Mapplethorpe affair is whether the government is obliged by the First Amendment to subsidize “such supposed art.” Surely not, any more than it is obliged to subsidize a church exercising its First Amendment right of freedom of worship.

Saul David makes a good point. By reading speech to include all forms of expression, what follows in the First Amendment may indeed be “simply redundant.” I had never thought of that.

For their support I am grateful to Michael Hendry and to those who wrote me directly.

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