On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse). The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation. What follows is a copy of my prepared remarks.
“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army. He did not use his toast to offer a tribute to individual liberty. Nor did he sing the praises of limited government. Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”
I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government. This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.
The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).
However, originalism as a theory was not invented in order to provide a vehicle for cultural expression. Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.
Originalism is an interpretive theory that understands a legal text to retain the meaning it had at the moment when it was enacted or ratified, until such time as the law is amended or repealed. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“leastdangerousblog.com, July 8, 2018). It holds that the discoverable public meaning of the U.S. Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation. (Keith Whittington, “Originalism: A Critical Introduction,” 82 FORDHAM L. REV. 375, 377 (2013)).
There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.
In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning.
This divide between the cultural aspects of originalism and the use of originalism as an interpretive method is starkly illustrated in the context of the interpretation of the First Amendment. In particular, I would argue that the manner in which the U.S. Supreme Court has interpreted the First Amendment demonstrates what happens when the interpretive theory of originalism is applied in a way designed to achieve preferred cultural objectives.
The U.S. Supreme Court has used the First Amendment to strike down government restrictions on speech in a way that protects a far broader universe of speech than was intended by the founding generation. The Court appears to have determined that the First Amendment, as originally understood, was horribly under-protective of culturally important activity, and that efforts over the decades to identify “dangerous speech” that could be regulated by the government had, in hindsight, placed unnecessary restrictions on politically motivated speech. As a result, the Court has increasingly read the First Amendment in an absolutist – and clearly unoriginalist – manner. (See Chistopher Dailey, “The Tempting of Originalism,” Unpublished Dissertation at 27-28 (2017)). However, the Court’s approach says more about the Supreme Court’s cultural objectives than it does about the original meaning of the First Amendment.
Let me provide four examples of how originalism can go awry, both as a general matter and when employed in the interpretation of the First Amendment.
First of all, originalism as a theory need not result in extreme libertarianism.
Not all speech is “free speech,” and no one understood the First Amendment to mean that all expression, without exception, was immune from government regulation. The real question for originalists is where the founding generation believed the line was drawn between “free speech” and speech subject to legislative limits. (LEONARD LEVY, ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION 214 (1988)).
It is important to recognize that the freedom of speech was considered a natural right, which is to say that speech was understood to be part of the natural liberty of human beings and not a positive right created by government action. In the case of all natural rights, the people understood that the government’s role was to preserve natural rights against interference from private actors and to restrain the exercise of these natural rights in circumstances where the people’s representatives in the legislature had determined that such restraint was for the public good. (Jud Campbell, “Natural Rights and the First Amendment,” 127 YALE L.J. 246, 252-253 (2017)).
Under this approach, speaking, writing, and publishing were all subject to restrictions under laws that promoted the public good. (Id. at 307).
Libel and slander charges were possible responses to speech. As Federalist Harrison Gray Otis explained, the First Amendment guaranteed “the liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party, whether it be the Government or an individual, for false, malicious, and seditious expressions, whether spoken or written.” (Id. at 286).
There seemed to have been a consensus that even the much maligned Alien and Sedition Act could be applied in a constitutional manner if it was only used to punish lies and seditious statements but was not used to prosecute true statements about the government or expressions of opinion.
Of course, just what circumstances justified curtailing the freedom of speech in furtherance of the public good was subject to great debate and differences of opinion – then, as now. However, no one at the time of the Constitution’s adoption doubted the premise that the good of the whole justified legislatively enacted restrictions upon natural rights.
The exception to this principle was found in instances where the natural right was unalienable, and therefore beyond the authority of government to control. For example, it was generally understood that one’s personal opinions, beliefs and internal thoughts simply could not be controlled or punished (the so-called “rights of conscience”). In addition, one’s honest statements made to others when expressing one’s internal thoughts were similarly understood to be outside of government authority to regulate at all. (Id. at 280-282).
However, none of this understanding of natural rights protected misleading statements or statements made with an intent to deceive. Also, forms of expression beyond words – whether flag burning or the making of political donations – were not considered to be part of the unalienable right of conscience. While none of us can surrender our ability to form an honest opinion – it is impossible to alienate our internal thoughts or beliefs – we are all perfectly capable of avoiding expressive conduct that causes harm to others, such as spreading lies. The negative consequences of speech would still be subject to regulation for the public good. (Id. at 286-287).
One implication of a natural rights understanding of the First Amendment is that the right of free speech is not absolute. Campaign finance laws can regulate expressive conduct such as political contributions where necessary to protect the public good. Another implication is that only human beings possess the freedom of speech, and not corporations. The Citizens United case rests upon an absolutist view of the First Amendment that stresses the protection of all speech, without regard to whether it is a human being or a corporation speaking. This absolutist interpretation of “free speech” is completely divorced from a freedom of speech based upon the natural liberties of human beings in nature and the ability of human beings to consent to restrictions on those liberties for the common good. (See ZEPHYR TEACHOUT, CORRUPTION IN AMERICA 229-237 (2014)).
Second of all, originalism as a theory is not the same thing as textualism.
Textualism demands that the interpreter of a text rely on the enacted text as the “alpha and omega” of the interpretive process. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“leastdangerousblog.com, July 8, 2018). It gives primary weight to the text over exterior sources of original meaning such as published debates, written newspaper editorials or contemporary correspondence. Textualism and originalism are NOT two names for the same thing.
Justice Antonin Scalia justified textualism in the context of statutory interpretation by declaring it superior to the selective use of legislative history to divine meaning. He compared judges perusing the legislative record to partygoers who walk past dozens of people they don’t know in order to converse with their friends. (Elizabeth Liess, “Censoring Legislative History,” 72 NEBRASKA L. REV. 568, 574 (1993)).
But Justice Scalia himself can be accused of using textualism in order to create a false original meaning. For example, in the District of Columbia v. Heller case involving the Second Amendment, Justice Scalia walked past the etymology of the words “bear arms” and past the near contemporaneous usage of the word “militia” in the Articles of Confederation, in order to go in search of his preferred meanings of the words, just as surely as if he were searching for his friends at a party. Judge Richard Posner famously derided Justice Scalia’s opinion for the majority in Heller as “faux originalism.”
We are all familiar with the phrase “proof texting,” which means using the words of a text out of context in order to justify a pre-determined interpretation. In the same way, textualism is too often employed skillfully with the intention of achieving a desired result, and not as a true search for original meaning
Not surprisingly, First Amendment jurisprudence has been adversely influenced by textualism.
Justice Hugo Black introduced textualism into the First Amendment canon when he focused solely on the words of the Amendment: ”Congress shall make no law . . . abridging the freedom of speech.” Justice Black argued that the words “no law” meant “no law.” (See Hugo L. Black, “The Bill of Rights,” 35 N.Y.U.L. REV. 865 (1960)). However, this statement is misleading. There is nothing in the constitutional text of the First Amendment beyond a command that Congress not “abridge” the freedom of speech as it existed at the time of the Constitution’s ratification, an interpretation that is completely compatible with the scope of the natural right I discussed earlier.
The more recent campaign finance cases illustrate the corrosive influence that textualism has had in First Amendment doctrine.
Justice John Roberts has argued that the words of the First Amendment itself reflect the results of a specific balancing of interests that was made by the founding generation. In his reading of the text, the prohibition on laws abridging speech reflects a balancing by the Framers where government restrictions on speech will never have a sufficient public benefit to outweigh the cost of any restrictions.
Justice Roberts wrote: “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” (U.S. v. Stevens, 559 U.S. 460, 470 (2010)).
It is only a short route from this argument to the broader conclusion that the public welfare is, in fact, irrelevant to the legal question of whether the government may regulate speech. And indeed, in McCutcheon v. U.S., Justice Roberts essentially came to this very conclusion, writing that “there are compelling reasons not to define the boundaries of the First Amendment by reference to . . . a generalized conception of the public good.“(McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014)).
In this manner, an undue focus on the text alone has resulted in an interpretation of the First Amendment that is exactly contrary to the original understanding of the natural law right of free speech.
The modern textualist approach to the First Amendment also ignores the Supreme Court’s prior precedent. Judicial deference to the balance that the legislature struck between free speech and its potential harm was the standard doctrinal approach taken by the U.S. Supreme Court in First Amendment cases dating from the founding of our country until well into the Twentieth Century. (Jud Campbell, “Natural Rights and the First Amendment,” 127 YALE L.J. 246, 259 (2017)).
The result of this modern focus on textualism in First Amendment cases has been to ingrain an absolutist view of the right of speech in the Constitution with few if any justifications for government regulation.
By the time that we get to the opinion in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court is applying this absolutist view of free speech to speech by corporations. The Court reasons that 1) the language of the First Amendment does not distinguish between whose speech is being regulated, so the government must therefore lack the power to makes a similar distinction and 2) the benefits of political speech are the same, whether the source of that speech is an individual or a corporation. The original understanding of free speech as a “natural right” is nowhere to be found in the Supreme Court’s textualist interpretation of the right.
Third, originalism does not require an overruling of non-originalist precedent.
Nothing about originalism requires the belief in a “Constitution in Exile” waiting to be reinstalled in authority by the United States Supreme Court.
Justice Antonin Scalia recognized that originalists had an obligation to respect stare decisis, which is the doctrine whereby the courts rarely relitigate settled matters. Justice Scalia stated that where “the Court has developed long-standing and well-accepted principles…that are effectively irreversible,” he would abide by nonoriginalist precedent, but not extend them. The basis for stare decisis, and thus for originalism’s accommodation of mistaken nonoriginalist precedent, is stability. (See Amy Coney Barrett, “Originalism and Stare Decisis,” 92 NOTRE DAME L. REV. 1921 (2017)).
However, an increasing number of originalists today argue that the U.S. Supreme Court has no obligation to respect non-originalist precedent.
The Supreme Court itself has treated precedent cavalierly in striking down campaign finance laws under the First Amendment. In 1978 the Supreme Court ruled in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), that a state law limiting the ability of corporations to spend money on referenda elections that didn’t affect their property was unconstitutional. The ruling did not explicitly hold that corporations had a First Amendment right, but it did say that the protection of speech was so important that it didn’t matter who was doing the talking. This ruling was revolutionary because it was a departure from precedent that, with the exception of the Lochner era, had held that the distinction between the regulation of corporations and the regulation of individuals is an important distinction under the Constitution.
However, the Bellotti opinion was careful to preserve the power of the government to regulate corporate spending in the context of candidate elections, as opposed to referenda. The Court continued to recognize this power to regulate corporate money in FEC v. National Right to Work Committee, in Austin v. Michigan Chamber of Commerce, and in McConnell v. FEC. These latter two cases contained spirited dissents from Justices Scalia and Kennedy arguing that the First Amendment right that protected corporations in Bellotti should be extended to the context of candidate elections.
In Citizens United v. FEC, the dissents in the Court’s prior campaign finance cases became the majority opinion, and the Court’s earlier decisions in Austin and McConnell were overruled insofar as they had allowed the federal government to prevent corporations from making independent expenditures on behalf of candidates for office. Not only were these prior cases overruled, but the Court’s entire prior history of the treatment of corporations under the Constitution was ignored. Ignored, as well, was the Court’s post-Lochner understanding that the Constitution grants the government the power to regulate corporate activity when it is contrary to the public interest.
A lack of respect for precedent increases uncertainty and changeability in constitutional doctrine. It also ignores the reality that judges are human and therefore sometimes make mistakes. As Justice Neal Gorsuch once wrote, “our duty to follow precedent sometimes requires us to make mistakes.” (U.S. v. Games-Perez, 40 667 F.3d 1136 (2012)).
Most significantly, the willingness of some judges to ignore precedent in order to re-install a Constitution in Exile raises the stakes for impact litigation – cases brought precisely to bring about changes in constitutional doctrine — and by raising the stakes in such cases the erosion of stare decisis contributes to the increasing politicization of the Supreme Court.
Fourth, originalism does not require a muscular U.S. Supreme Court that jealously polices the Congress.
The original intent of the U.S. Constitution was that the Supreme Court would play a modest role in the system of government. The Court was not intended to exercise free-ranging supervision over Congress and the state legislatures in order to define and protect absolute rights from any government intrusion. Instead, the role of the courts was limited to enforcing previously established customary legal principles. (Jud Campbell, “Natural Rights and the First Amendment,” 127 YALE L.J. 246, 311 (2017)).
Under our Constitution, Congress is supreme, not Court.
The original intent of the Constitution is that the people are sovereign, and that the people determine what is in the public good through their elected representatives. This was never intended to be a job for the unelected members of the U.S. Supreme Court.
The U.S. Supreme Court developed the traditional strict scrutiny standard of review for legislation that infringes upon constitutionally protected rights. When applied to government restrictions on speech, that standard of review allows the Court to smoke out any improper motivations behind government regulation. When strict scrutiny is used in this manner, the Court stays within its proper role.
However, recently the Court has demonstrated an increasing tendency to go beyond merely identifying improper motivations. Instead, the Court is expressing its own opinion on the usefulness or the benefits of legislative objectives that are clearly proper for the legislature to pursue. In effect, the Court is increasingly deciding that even good legislative motives are not good enough to outweigh the restriction of speech.
When the Supreme Court takes on a muscular and outsized role in defense of an absolute right of free speech, the Supreme Court divests the legislature of the power to decide the contours of citizen participation in our democracy. It leaves the people’s representatives without any ability to protect our participatory democracy from the distorting power of corporate money, misleading attack ads, or even Fake News. Instead, the Supreme Court decides for itself what kind of participatory democracy exists in our nation through the guise of interpreting the First Amendment. (See ZEPHYR TEACHOUT, CORRUPTION IN AMERICA 243-244 (2014)).
In some sense, all of my points are inter-related. Originalism as applied often ignores the original understanding that the people possess the sovereign power to constrain the scope of natural rights, and instead replaces the original understanding with an absolutist approach to rights that places an undue focus on textualism. As a result of this tendency, originalism has often failed to respect the role of precedent, which allows the U.S. Supreme Court to play an outsized role in re-defining when our liberties can be curtailed for the public good – without sufficient regard to the balance struck by the people’s representatives in Congress.
Perhaps if more Progressives had embraced originalism as an interpretive theory when the theory developed in the 1980s, and had played a more active role in helping to define the proper use of originalism as an interpretive method, then originalism today might be utilized more objectively and less often as a mere vehicle for cultural expression – whether on the subject of the First Amendment or otherwise.
I consider myself to be an originalist because I believe that true originalism requires us to reject the neutered, ineffectual national government that many self-proclaimed originalists seem to so ardently desire.
Or to borrow a phrase from George Washington, I am an originalist because I believe in “Competent powers to Congress for general purposes.”