"The First Amendment doesn't belong to courts. Either it lives inside all of us or it dies."

"Is our culture so degraded that educated civil servants don't know enough about free speech to slap an idea like this down at its inception?"

Writes Garrett Epps at the conclusion of his piece titled "Why Is It So Hard to Keep the IRS Out of Politics? Government officials need a refresher course in the First Amendment 'anti-retaliation' principle."

Instapundit linked, saying: "Two observations: (1) Obama was joking about auditing his enemies in 2009; and (2) Go to a flat tax or a national sales tax and this problem largely disappears."

On point #1, Instapundit doesn't mean Obama was only joking (and therefore he shouldn't be taken seriously or thought to be connected to the actual targeting of enemies). Instapundit means that Obama thought so little of the important principle at stake that a joke could be made of it.

On point #2: Yes! As I said when this story first broke (responding to Ezra Klein who'd argued that what we need most is harsher — but equal — enforcement of tax law):

The unequal, politically skewed enforcement of a law is a far more serious problem than the level of harshness of a neutrally enforced law. We can disagree about what the tax laws should be and how strictly or harshly they should be enforced, but everyone knows it is fundamentally wrong to vary the degree of enforcement, selecting victims by their politics. If government cannot be trusted to avoid that fundamental wrong, it cannot be trusted with any power at all. It would be better to wipe the tax code clean and rebuild it without any complicated corners where government officials — great or small — have a place to do their dirty work.

Let's do it! Let's set things up so we are not dependent on the good faith of government officials. Flat tax or national sales tax.

ADDED: Rereading this, I see that I need to distance myself from Epps. Even though I agree we need broad and deep cultural understanding of freedom of speech and that the courts alone cannot preserve it, I don't accept that freedom of speech will die unless "all of us" keep the faith. We have a legal system with constitutional rights because of the danger that the political majority will — in some times and in some circumstances — lose track of these values.

And quite aside from what the people in general think, the individuals who get their hands on power will always be tempted to put their immediate desires ahead of other concerns. No "refresher course" on the First Amendment will overcome that tendency. We need to use law to confine them. Of course, Epps is right that First Amendment law, enforced by courts isn't going to control them enough, but inculcated First Amendment principles are not enough either.

We should do what we can to redesign the structures of power so the inevitable degradation of commitment to freedom will not have such a damaging effect. When it comes to taxes, we do have an obvious legal solution at the statutory level: replace the tax code — with all its hiding places for abuse — with the flat tax or national sales tax.