In the dry corners of legal academia, few topics cause such storms of passion as the debate over originalism. What did the Founders mean when they wrote this passage or that in the Constitution or Bill of Rights? Does their original take matter? If so, for how long?
Originalists argue for a careful hewing to their preferred interpretation of specific passages based on the Founders’ “original meaning,” which anti-originalists correctly criticize as conveniently supporting originalist arguments for smaller government. Anti-originalists have cleverly responded by giving originalists a taste of their own medicine, scouring the historical record for evidence which supports their countering narrative. Arguing for their version of American government and society, they brush aside originalists’ thoughts as “patently false.” To anti-originalists, their opponents are supporting the mere inventions of more modern thinkers, not the sacred intent of the Founders.
Here, I counter that if we were to apply anti-originalist arguments to the First Amendment, the government would be able to restrict speech in a broad and sweeping manner. Especially in the context of President Trump’s executive order regarding social media, I hope it gives some anti-originalist folks some pause before they continue to advance arguments based on selectively curated historical information.
I’ve noticed some common threads across the spectrum of legal doctrines, from administrative law to gun rights. Their arguments, distilled of complexity, go something like this: you’re reading too much into this simple phrase. The Founders didn’t mean it that way. See, here’s a contemporaneous law or court opinion which supports my position. Invalid and unsupported, then, is an individual rights interpretation of the Second Amendment. The individual rights view, of course, would allow less restricted access to firearm ownership for self-defense or as a check against tyranny unconnected to any organized militia purpose.
Make no mistake: there are plenty of historic laws for these folks to rely on. Those who have long argued against an individual rights interpretation of the Second Amendment, such as Dr. Robert J. Spitzer, have mountains of statutes from the era of the Founding, and before, and after, to support their arguments.
One of Dr. Spitzer’s favorite things to point out is that the first gun laws passed in America, back in the 1600s, forbade the sale of guns to Native Americans. In the context of decrying armed protests against government coronavirus restrictions, he points us to a 1786 Massachusetts statute giving law enforcement the power to disperse armed groups. Dr. Spitzer focuses on the “consensus” among historians that the Second Amendment was a militia-based right, and that the numerous state level gun laws of the 1800s mean current restrictions are okay, too.
These examples are just the tip of his evidence iceberg. But the more statutes he cites to, in my opinion, the weaker his argument becomes. He essentially asks us to juxtapose an early-1800s take by government actors (seeking to achieve government goals in pre-Civil War America) on the role of government and the Constitution with modern views on individual rights and freedoms. The shallowness of the argument becomes even more clear when we consider that at that time, the popular view was that the federal government had little power to do anything outside the narrow lanes of the Commerce Clause, while state governments had police powers unfettered by the Bill of Rights. Now we have vastly expanded federal government power and state governments more or less brought to heel by a series of decisions incorporating most of the Bill of Rights against the states.
But what if we applied these arguments to restrictions on the freedom of speech? For about the first hundred and fifty years of this great nation’s existence, the First Amendment existed in name only, at least viewed in context of the much wider freedoms we have now. The Sedition Act of 1798, though unpopular at the time and quickly allowed to lapse, provides a window into what at least some Founding-era Federalists saw as a reasonable restriction on speech. Far later, the Sedition Act of 1918 was also soon allowed to lapse, but not before both supporting many prosecutions and being upheld by the Supreme Court.
In between, in the 1800s, we had the Comstock Laws and the commonly accepted and widespread “suppression of vice,” which some leading legal thinkers of the day accepted and encouraged. Prosecutions for sending obscene materials in the mail were upheld by federal district and circuit courts. One poor guy named Harman had his sentence for mailing obscenity vacated by a circuit court not because it was an unconstitutional free speech restriction, but because it didn’t include the time at hard labor required by the obscenity statute.
At the state level, the free speech situation was even more dire. With the Supreme Court’s 1833 decision in Barron v. Baltimore declining to apply the Bill of Rights to the states, what we consider to be a fundamental right to speak on political matters simply did not exist in some states in the 1800s. Virginia, for example, in 1836 made it a crime to speak the simple truth that slave owners had no right to property in another human being or to “advise the abolition of slavery.”
Anti-originalists claim that, among other reasons, statutes contemporaneous to the Founding and continuing on through the first century of the United States’ existence are a compelling enough reason to support onerous restrictions on firearm ownership. If so, then why don’t we adopt those same early principles with regard to the First Amendment?
The most obvious response is that we have nearly a hundred years of Supreme Court precedent on speech restrictions which, though not perfect, have steadily marched us toward greater individual freedoms. But Dr. Spitzer’s words come back to undermine this argument – he has said in objection to Heller that “the Supreme Court can change the law, but it cannot change history.” It is true that the Supreme Court has been slower to recognize an individual right to own guns than it was to recognize that state governments could not stop people from saying things the government perceives to be objectionable. That does not delegitimize the Supreme Court’s decision in Heller any more than Brandenburg might have been deemed illegitimate before the ink had dried merely because previous scholars thought restrictions on objectionable or seditious speech were just fine.
The early 1800s were a period when the federal government was seen to have very little power to police major aspects of society – aspects it has since policed – and were a time before any of the Bill of Rights were held to restrict state action. If the true meaning of the Constitution can be discerned not from its text or the imputed meaning of the Founders but by looking to selectively chosen statutes bereft of context, then the Constitution can be held to justify nearly any regulation.
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