The challenges of constitutional silence: Doctrine, theory, and applications

The silences of constitutions

Abstract. Glossing a passage from Benjamin Constant’s Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and

Soundings and Silences

In studying existing constitutions or in assisting with drafting a new one, it is impossible not to notice that formative decisions about what to say and what not to say as a constitution is being created bear heavily on later decisions about how to interpret what a constitution says or fails to say, including whether to construe any given silence or gap only as a source of insight or as a kind of performative utterance. Among the features of the United States Constitution that have been crucial to its success has been the widespread recognition of its connected structure that, despite its gaps—some deliberate and others unintended—invites understanding as a coherent, if at times internally inconsistent, whole. Constitutional silences, like silences of other kinds, are everywhere and come in many varieties. There are as many reasons to be silent as there are to speak and as many ways to hear meaning in the sounds of silence as there are to attribute meaning to statements. The first section of this essay distinguishes silences that open a constitutional conversation by leaving options on the table from those that shut conversation down by limiting the options to one. The second section separates silences that bear on the structure created by the Constitution from those that bear on the individual rights the Constitution protects against government infringement. The third section turns to the special case of silences in the Constitution’s rules of interpretation and asks whether the Supreme Court should be silent on a particular constitutional matter or should address it squarely, recognizing that whatever an authoritative interpreter says about what the Constitution itself says or omits can be evaluated only against the background alternative of somehow contriving to remain silent.

Constitutional Silences and Institutional Integrity

A constitution, like any document, leaves certain things unsaid. In Australia, the duty to interpret constitutional silences falls to the courts. This paper engages with constitutional theory in order to explain what ought to—and does in fact—dwell

Silence is a Commons by Ivan Illich

Ivan Illich is doing to computers what he did to education (De-Schooling Society, 1971), to energy (Energy and Equity, 1974), to medicine (Medical Nemesis, 1975), and to sex roles (Vernacular Gender, 1983). Each time it has been radical analysis that changes our perception of what is really going on. Each time, and with growing clarity, it is an economic/historical analysis having to do with the idea of scarcity as a means of exploitation. This article is from Illich's remarks at the "Asahi Symposium Science and Man - The computer-managed Society," Tokyo, Japan, March 21, 1982. The ideas here are part of a book Illich is working on, The History of Scarcity. - Stewart Brand The CoEvolution Quarterly, Winter 1983

Breaking the silence

Research on science communication has largely focused on teaching scientists how to describe their studies in ways that interest the public while deepening their understanding of scientific exploration. However, there is another, often overlooked side to science communication—how scientists respond when questions arise about the integrity of their research. Often, the tendency has been to stay silent and wait for any controversy to pass or be resolved in professional forums. But in an age of growing, intense attacks on science, silence can be detrimental to both public trust and the careers of scientists who are under scrutiny. For better or worse, journalists, social media professionals, and the public may take a response of “no comment” as a concession that the critics are correct, so forthright communication about research questions is more urgent than ever.

Mind the gap: Analyzing the divergence between constitutional text and constitutional reality

Abstract. Constitutional economics—the analysis of constitutions drawing on the economic approach—has made important progress over the last two decades. Th

Designing a Constitution for a Community (Camille Canon) : Metagovernance Seminar

This is a talk exploring Apiary's work on the purpose/constitutional design of Radicle. We have been supporting the founders and community in drafting a...

'We won't be silenced': Meta removes Instagram accounts of pro-Palestine advocacy group

Pro-Palestinian activists have complained of suppression of speech since the war on Gaza began on 7 October

How (Not) to Write a Privacy Law

After many years of failed starts, proposed information privacy legislation has begun moving forward in both houses of Congress. The docket in the recently ended 116th Congress was crowded, with a number of different proposals jostling for attention and no agreement on which deserved to be the front runner. Even so, as the 117th Congress begins, there is growing inside-the-Beltway consensus on the list of features that a successful bill will need to include. This paper critically assesses those zones of emerging consensus.

Free Speech on the Internet: The Crisis of Epistemic Authority

Abstract. Much of our knowledge of the world comes not from direct sensory experience, but from reliance on epistemic authorities: individuals or institutions that tell us what we ought to believe. For example, what most of us believe about natural selection, climate change, or the Holocaust comes from our reliance on epistemic authorities (scientists, historians). Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The internet has obliterated the intermediaries who made that possible, and, in the process, undermined the epistemic standing of actual experts. This essay considers some possible changes to existing free speech doctrine to remedy the epistemological crisis brought about by the internet.

Tell Congress: No 702 without real reform

Join us in urging Senators and Representatives to stand up for the Fourth Amendment and protect our privacy!

Palantir CEO Makes Shocking Confession on Disrupting Democratic Power

They’re saying the quiet part out loud now.

Sex Workers Say They’re Being Silenced by the Government on Age Verification Plans

“There is a difference between consultation and actually being listened to.”

Tell Congress to Say No to Warrantless AI Mass Surveillance

The War on Terror-era legislation that authorized decades of civil liberties-eroding mass surveillance expired June 12. . Congress has a choice to make before they reauthorize this bill: will they greenlight warrantless mass surveillance of American citizens, or uphold the Constitution and prevent more of Trump's authoritarian powergrabs? Section 702 of the Foreign Intelligence Surveillance Act (FISA) was passed in 2008 as a counterterrorist measure, but has a long history of abuse from the federal government, especially when it comes to surveillance. Congress has a choice to make: Will they greenlight warrantless mass surveillance, or hold the line and reject any effort to move forward without serious privacy guardrails. FISA as it is currently written: Allows warrantless backdoor surveillance of people in and out of the country Offers little to no protections against the administration targeting critics, activists, religious minorities, or communities of color Actively chills our freedoms of speech and association Two years ago, this reauthorization legislation sailed through Congress with bipartisan support. That can’t happen again. Democratic leadership and members must hold the line for our civil liberties. And any Democrat or Republican voting for unfettered spying on US citizens should hear from their constituents. Let your Members of Congress know you expect them to reject reauthorization unless it includes significant reforms to protect our civil liberties against this authoritarian regime.

Online Safety Bills Are Fueling a New Wave of Internet Censorship

State and federal bills seek to limit minors’ access to social media, but civil liberties advocates warn that the resulting online censorship threatens constitutional rights without delivering real safety.