Originalism and the freedom of speech
or A thick description of the Constitution
Eric Segall writes that originalism is “dangerous nonsense.” In his telling, the original meaning of the constitution tells us little to nothing useful about how to address modern constitutional questions. In part, he argues that it is impossible to ascertain a fixed and definite meaning to any given constitutional provisions (assuming such a thing ever existed) across the vast gulf of time that separates us from the Founding. In addition, to apply the actual standards and rules of the late eighteen century to our twentieth century society would be simply unacceptable to most modern Americans.
Indeed, the whole project verges on the absurd from a certain perspective. To ask what George Washington would have thought about the internet or transgender rights is not just anachronistic, it’s down right silly. Justice Robert Jackson laid out the most succinct and devastating take-down of originalism yet penned in his concurrence in Youngstown Co. v. Sawyer, decades before originalism was even a gleam in Robert Bork’s eye:
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
If there is no “there there” when it comes to originalism, then what is all the fuss about? For Professor Segall, originalism is merely a Trojan horse deployed by the conservative legal movement to impose upon America the most extreme and unpopular components of far-right social and fiscal policy, disguised as the supposedly objective “true” meaning of the Constitution. Conversely, when the Supreme Court’s conservative majority finds the historical record infelicitous, they simply disregard originalism and resort to other rhetorical tricks to achieve their desired result.
As evidence of the fatal inaptness of the original Constitution to modern problems, Segall points to the First Amendment’s Free Speech Clause:
Originalism and history simply have little relevance to [regulating the internet] (as is true for most free speech issues even apart from the internet, given that the First Amendment's original meaning was almost entirely about prior restraints and not punishments after speech is delivered).
Over the last month, I have written a series of posts here tracing some of the history of free speech in the United States, with an emphasis on the question of subversive advocacy (i.e. speech critical of the government and established authority). I recognized that the modern body of Free Speech Clause doctrine is a product of the latter-half of the twentieth century and bears little resemblance to speech law at the Founding. But my investigation into the constitutional roots of free speech revealed a more complex and rich legacy than a simple reference to the common law of prior restraints might imply.
Constitution 1.0
As I observed, the English common law at the time of the Founding did adhere to the prior restraints doctrine, pursuant to which the government could not prevent the publication of subversive materials ex ante through press licensing but could subsequently prosecute and punish the publishers for seditious libel. But this observation only begs the question: was the First Amendment intended to codify the common law speech regime of the late eighteenth century?
It’s generally understood that the point of the Bill of Rights, and indeed the whole American Revolution, was to secure for Americans the traditional rights of Englishmen, denied to them by the tyranny of Parliament and the British monarchy. Consequently, numerous provisions of the Bill of Rights seem to incorporate wholesale certain aspects of the English common law as it was understood in the late eighteenth century, and particularly as described by Blackstone in his Commentaries. For example, the Sixth Amendment presumably guarantees the same right in a criminal trial to a decision by a jury of twelve men, good and true, as enjoyed by Englishmen since time immemorial.
But in other cases, the Bill of Rights unambiguously rejected certain practices authorized under English law at the time. The Fourth Amendment, for example, requires that every warrant specify the places to be searched and the things to be found, thus prohibiting “general” warrants of the type issued by British magistrates during the colonial period.
And a third middle option also exists; perhaps certain constitutional provisions adopted with modification common law rights, in order to adapt them to the uniquely American context. As Professor Amar writes, “various common-law principles may have changed shape in subtle but important ways when absorbed into the Constitution and Bill of Rights.”
In the case of the First Amendment, the text indicates that something more than just mechanical adoption of the prior restraints doctrine is at work. The amendment prohibits the abridgment of “the freedom of speech, or of the press,” which, from a practical perspective, is hard to square with a mere limit on prior restraints. As the Jeffersonian Republicans observed during the controversy over the Sedition Act of 1798, prior restraints are relevant to printed material but can’t realistically apply to verbal speech. How would every citizen obtain an official censor’s imprimatur each time they opened their mouth? Absurd.
Thus the “freedom of speech” must protect something more than freedom from press licensing. We will never know exactly what the Framers of the First Amendment had in mind, and indeed there may not have been a consensus at the time on what exactly was intended. But as I suggested, the concept of popular sovereignty, which was a major concern of the drafters of the Bill of Rights, supplies an analogy to the common law doctrine of parliamentary speech and debate immunity, which was absolute. Now that the people, not Parliament, were sovereign, we were the ones entitled to absolute immunity of speech and debate. As Madison argued:
Opinions are not the objects of legislation … If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.
And if the freedom of speech is absolute, the justification for allowing subsequent punishments for print publications looses coherence as well. Amar explains:
Surely the two rights in the federal Bill are in pari materia; each should be construed in relation to the other, and it would be curious if freedom of the printed word were drastically more truncated than freedom of oral expression.
But before we get too carried away, the amendment’s text also suggests a major caveat. The provision begins “Congress shall make no law… [.]” The First Amendment on its own terms limits only the federal government. This proscription should also be read in conjunction with the Tenth Amendment’s clarification that the powers not granted to the federal government are reserved to the states and the people respectively. In this reading, the First Amendment was merely a clarification of art. I, sec. 8 of the Constitution, which sets out the powers of Congress. Laws abridging the freedoms of speech and press were not “necessary and proper” to carrying out any enumerated power of Congress.
Thus, the original First Amendment protected the prerogatives of the states as much as that of the people. And the punishment of seditious libel was a well established police power of states at that time.
Constitution 2.0
The Fourteenth Amendment quite literally flipped the script on the Constitution. The original Constitution hived off a discrete set of powers from the several states that were judged uniquely needful of interstate cooperation and installed them in a national government supreme but narrow in its jurisdiction. The shortly-following Bill of Rights patched the Constitution, but only to further emphasize the limited nature of federal power vis a vis the states and the people.
The Fourteenth Amendment, however, put the federal government in the driver’s seat by guaranteeing against the states due process, equal protection of law, and the fundamental rights of citizens, and then granting to Congress explicit authority to enforce those rights through appropriate legislation. Not for nothing did Eric Foner call the massive revision in our fundamental system of government wrought by the Reconstruction a “second Founding.”
The contrast between 1789 and and 1866 lay in the divergent lived experiences of the respective generations of the Revolutionary War and of the Civil War. Writes Amar:
The difference, of course, was that unlike the tyranny of George III, the tyranny of slavery could not be blamed on a distant and dictatorial center but instead had been perpetrated by local democracies. Just as the price of peace and union in 1789 was a bill of rights against the center, so the price of peace and (re)union in 1866 was a bill of rights against the periphery.
Today we keep asking, what did they mean in 1789? But, as I have previously argued, that’s not the right question when it comes to individual rights. The question is, what did they mean in 1866? Just as the original Bill of Rights did not mechanically incorporate the English common law, the Fourteenth Amendment did not mechanically incorporate the Bill of Rights.
Professor Lash proposes that when the American people ratified the Fourteenth Amendment, they “respoke” the Bill of Rights, investing those rights with new meaning informed by the lessons learned in vanquishing the slave power. And by recasting those rights as privileges and immunities of national citizenship, the Civil War generation not only “incorporated” them against the states, they also “reverse incorporated” that them back against the federal government too.
The Free Speech Clause might have started out as a federalism provision but by the time of the Reconstruction, it was a privilege and immunity of citizenship, a quintessential attribute of Americanness. Professor Lash elaborates:
Even if the original Freedom of Speech and Press Clauses communicated nothing more than freedom from prior restraints, the suppression of free expression under slavery may have generated a far broader understanding of the rights of free expression among the Reconstruction Republicans who framed and ratified the Fourteenth Amendment.
And yet, having glimpsed the promised land, America plunged back into the desert, a “vast wasteland“ between Slaughterhouse and Brown v. Board during which the nation forgot or willfully ignored the lessons so dearly learnt in the fratricidal war and its aftermath. How could the same generation that bequeathed us the Reconstruction Amendments turn around and betray that vision so badly? One might just as well ask how the same people that gave us the Free Speech Clause could have also given us the Sedition Act.
All of which points to the patent flaw in the supposedly originalist “history and tradition” methodology recently set down by the Supreme Court in Bruen v. New York Rifle Association. As I have argued, that case elevated the question of liquidation1 to the exclusion all other considerations. And yet, as we have seen time and again, the framers of constitutional provisions have usually failed to fully live up to their own noblest ideals.
If, for example, we were to apply the Bruen test to the Free Speech Clause, we would seem to be forced to conclude that subsequent punishments are just fine, since the Sedition Act which liquidated the Free Speech Clause embraced the crime of seditious libel. Yet the Supreme Court simply ignores this problem. Professor Segall rails at the hypocrisy, but the Supremes do not need to explain themselves to the likes of us.
I have argued that the Supreme Court’s approach is not originalism at all, but rather “historicism” as Noah Feldman calls it, an unreflective and slavish apeing of a cherry-picked past. I call for a thicker description of the Constitution’s original meaning than the Supreme Court has so far given us. Liquidation is surely a relevant tool in discerning the application of constitutional principles, but it’s not sufficient on its own. We need to ask not just what the Founders did, but what they meant.
Liquidation refers to the idea that we should interpret vague constitutional provisions in light of how they have been subsequently applied, especially in legislation enacted by those who actually ratified those provisions.