Free Speech, Sedition and the Constitution

Abstract

The state of modern jurisprudence is not inaptly reflected in the range of considerations to which this title might give rise. If the illusion of certitude still survived as a legal premise, if the judicial process were conceived in terms of “tidy formulas,” one could feel more assurance that the enterprise itself is meaningful and potentially fruitful. But if the past fifty years have taught us nothing else, they have made us aware of the complex and ambiguous evaluation of alternatives that underlies the judicially enforced command. Even the word “constitutionality,” which once seemed to express a coherent idea, has lost its definable contours as understanding of public law has progressed. The salutary result of all this is that we recognize the great network of imponderables which we must assess before declaring with confidence that a given exercise of governmental power conflicts with our fundamental law. But by the same token uncertainties have been multiplied, and flat statement and prediction have become increasingly hazardous. The penalty of understanding is doubt.