I Do Not Think It Means What You Think It Means

Julian Sanchez | January 5, 2004

Over at National Review Online, Eugene Volokh looks at how the originalist/textualist camp gets it wrong on the First Amendment.

Comments

|1.5.04 @ 4:47AM|#

Interesting, except I disagree that we cannot simply say "no law means no law." I say that is exactly what it means. But as with all other aspects of our society, your rights only go so far as they do not interfere with my rights.

Which explains why you cannot use a bullhorn to shout messages in my neighborhood at 2am. And you cannot send me death threats, because it incites violence against my person, and violence isn't your right unless it is for self-defence.

But how exactly is my running a political ad using force against anybody or infringing on anybody's rights? And how is giving a politician money harming anyone? Nobody has to watch my TV commercials, they must choose to. Nobody has to vote for the guy I give money to, they must choose to.

So I'd say "no law" most certainly means "no law", upon which we place very few exceptions in situations when harm or serious infringment on other people's rights will occur.

Oh, and just because we had lots of religious nuts voted into power by religious nuts in our population doesn't change the meaning of the Constitution. As with all documents it only has as much force as the courts will give to it or as much as the population is willing to enforce. All those previous convictions for denying the truth of christianity are unconstitutional as far as I am concerned. Just because they passed the scrutiny of some Christ nut judges doesn't convince me otherwise.

|1.5.04 @ 4:53AM|#

Okay, I accept that there is a lot of historical fantasy in the originalist view.

That said, there has to be some kind of analysis of intent applied to the discussion of the first amendment, or it may as well not exist. It can't mean that everyone has the right to a free Twinkie, even if some may 'interpret' it that way.

To look at the case of campaign finance reform, you have to look at how seriously we have taken the notion that political speech is to be protected. The danger is when judges use the kind of 'Well, you can't yell Fire in a theatre!' to create law that diverges from our understanding of free speech for one specific issue that you happen to like, then arguing later that political speech is to be protected.

I would also argue that a historical failure of execution does not necessarily indict the underlying principle of a 'plain text' reading.

At some point, the amendment process needs to be invoked if you want to change what the document says. If the judges aren't held to task by the text, why don't we just give them crowns and scepters?

Warren|1.5.04 @ 4:57AM|#

IN-CON-CEIV-ABLE

|1.5.04 @ 5:07AM|#

GoonFood writes:

...I disagree that we cannot simply say "no law means no law." I say that is exactly what it means. But as with all other aspects of our society, your rights only go so far as they do not interfere with my rights. Which explains why you cannot use a bullhorn to shout messages in my neighborhood at 2am.

This begs the question of what our respective rights are. How do you know that you have a right not to hear a bull horn at 2 a.m.? And if "no law" really means "no law," where do you find this "except when it interferes with my rights" exception?

|1.5.04 @ 5:20AM|#

alkali:
What I was really going for was the thought that we should stick to the "no law" language and only ammend that when deemed absolutly vital for the protection of others from harm (obviously what defines harm and what is deemed vital will be hotly debated, but that is quite alright).

What I don't want to see, and what seems to be happening all the time, is the view that some judges or congressman or whomever should be allowed to decide a "reasonable" amount of laws, and then read the language of the Constitution/Bill of Rights. When laws get passed in that matter we end up with no discussion of what part of the Constituion gives power to said law, and why it is absolutly so damned important that this law be passed.

|1.5.04 @ 5:28AM|#

The way I see it, you have every right to crank up your bullhorn, on your own property, to whatever volume you see fit and at any time you please.

Should I happen to be in close proximity to your property, and should I happen to find your bullhorn use unpleasant, I have every right to invest in earplugs.

However.... should you wish to take your bullhorn off your property and onto the streets, you have to submit to the rules of use as laid out by the municipality or organization that owns said property.

fyodor|1.5.04 @ 5:41AM|#

Russ,

I tried sleeping with earplugs once. I realized very quickly I had no chance of sleeping with that discomfort. So maybe that's a solution for some, but not for everyone. I think depriving someone of their night's sleep, in lieu of reasonable measures to avoid the disturbance, is akin to assault.

|1.5.04 @ 5:51AM|#

Of course, the 1A says "Congress shall make no law" and imposes no restrictions on common-law rights and obligations, which are probably quite adequate to deal with neighbors and their bullhorns.

Really, the "make no law" part of the 1A is a red herring, though. It is the phrase that specifies what laws Congress is not allowed to make that carries the freight, and that part says "abridging the freedom of speech, or of the press." What laws abridge the freedom of speech or of the press is left as an exercise for the reader.

|1.5.04 @ 6:15AM|#

Volokh's piece is disappointing simply because it's completely unremarkable. Anyone who has studied law is aware of the history of the First Amendment, but this doesn't really tell us too much about where we should be at today.

|1.5.04 @ 6:20AM|#

"Should I happen to be in close proximity to your property, and should I happen to find your bullhorn use unpleasant, I have every right to invest in earplugs."

You can't really organize a society this way, because your noise interferes with my 'quiet enjoyment' of my own property. Not everyone could sleep with earplugs, and in some cases the noise could prevent you from hearing things like smoke detectors and alarm clocks.

If you live out in the middle of nowhere, you should be free to make all the noise you want. But as soon as you start interfering with other people's use of their property, the government should be able to step in.

|1.5.04 @ 7:32AM|#

Excellent piece by Professor Volokh. Explodes the myth that conservatives are for less government control. Support for small government is the domain of libertarians and not conservatives.

|1.5.04 @ 8:15AM|#

>> We can't just say "no law means no law" and
>> resolve the problems that way.

I'm of the opinion that we can't just say "We can't just say 'no law means no law' and resolve the problems that way" and resolve the problems that way.

This statement of Volokh's begs the question "Why not?" but very frustratingly he doesn't answer it. Why would the framers have made a statement in such plain and unequivocal language that they didn't really mean? Did they know that the Constitution would eventually spring leaks and the best way to minimize the damage over time was to use absolutist language, knowing that exceptions were inevitable?

(And yes, I know I'm misusing "begs the question" but no one has yet come up with a suitable phrase to replace it in that usage.)

|1.5.04 @ 8:36AM|#

How about "raises the question"? That always works for me.

SteveInClearwater|1.5.04 @ 9:19AM|#

In the bullhorn example, one is not being restrained from speech. Rather you are being restrained for excessive decibel level.

What you say is not the issue, but the volume is, depending on where and when.

SteveInClearwater|1.5.04 @ 10:20AM|#

...oh almost forgot....

"Stop that rhyming now, I MEAN IT"

(your turn)

|1.5.04 @ 10:32AM|#

"anybody want a peanut?"

|1.5.04 @ 11:17AM|#

'couldn't help myself' wrote what?

Kevin Carson|1.6.04 @ 1:16AM|#

Sam,

The proper way of doing "original intent," I think, is to look at the understanding of the ratifiers. They (the peoples of the states, assembled in convention, in legal theory) were the sovereign authorities who established the Constitution.

The idea that (trumpet fanfare) The Founders were lawgivers, handing down a sacred document from Mt. Sinai, is just a holdover from the nineteenth century cult of the Founders. That cult, with its pantheon of founding demigods, was propagated in the Little Red Schoolhouse version of American history to create popular reverence for the American government.

But there are standard, common law canons of construction for any legal document. They can be boiled down to the duty "to explore his [the lawmaker's] intentions at the time when the law was made, by signs the most natural and probable." [In the case of the U.S., that means trying to reconstruct the understanding of those who voted to ratify in the conventions]

In practice, this entails

1) taking words in a legal document in their most common sense at the time of writing, unless they are terms of art; in which case you interpret them according to the standard technical definition of the time; and

2) considering the contemporary evils which the lawgiver intended to remedy.

In addition, the debates in many of the ratifying conventions, and in society at large, are preserved as evidence of the arguments used by federalists in favor of ratification.

Kevin Carson|1.6.04 @ 1:23AM|#

One factor left out is the Ninth and Tenth Amendments. Before we consider whether exercise of a federal power violates the First Amendment, we should first be sure the power was legitimately delegated in the first place.

|1.6.04 @ 1:56AM|#

Eugene Volokh wrote:
... there was some talk in the late 1700s and very early 1800s -- including by Madison and Jefferson -- arguing that the First Amendment was an absolute constraint...

Oh sure, just "some talk" for an absolute constraint. Volokh sets up a straw man via faint acknowledgement. What Jefferson and Madison (other founders as well) argued for was the logic of air tight absolute constraint in the combined force of the Tenth and First amendments.

From "James Madison and the future of limited government" Ed. John Samples. Pg.64:

(Jefferson) then focused on the tenth amendment's assurance that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." He noted that the authority to control political speech, for example, was not granted to the federal government; the First Amendment, in fact, explicitly prohibited such legislation.


"If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.'
- George Washington

If the founders were alive today they would shed bitter tears at the Supreme Courts' upholding of the campaign finance law.

Hey; This new book looks interesting:
RESTORING THE LOST CONSTITUTION
The Presumption of Liberty
by Randy Barnett
http://www.lfb.com/Prodinfo.ASP?NUMBER=LL8757

|1.6.04 @ 2:00AM|#

So public floggings should not be considered "cruel and unusual," because the founders did not consider them to be such at the time the document was written?

How about we drop the Ouija board routine.

|1.6.04 @ 4:36AM|#

Volokh's comment is that since the amendment was ignored before, that makes it OK to ignore it now. He may be right that the originalist camp is overreacting, and he may be wrong.

I guess since eugenics was OK before, we should continue with it now, hmm?

I guess Volokh's argument totally invaldates his slippery-slope paper then.

|1.6.04 @ 4:55AM|#

Russ, the people who wrote the amendment, voted on it, and signed it were the first to "ignore" its alleged original meaning. The Sedition Acts were implemented under John Adams. So the assertion that repressive anti-speech laws are against the original meaning of the amendment's writers doesn't hold up. They most certainly did not think it prevented the federal government from locking people up for writing critical op-eds.

|1.6.04 @ 5:25AM|#

"No compact among men...can be pronounced everlasting and inviolable, and if I may so express myself, that no Wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other." --George Washington

"It has long, however, been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary;...working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped." --Thomas Jefferson

"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable on in which it was passed." -- Thomas Jefferson

�I entirely concur in the proprietary of restoring to the sense in which the Constitution was accepted and ratified by the Nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more then for a faithful, exercise of it�s powers� what a metamorphosis would be produced in the code of law if all it�s ancient phraseology were to be taken in it�s modern sense.� -- James Madison

"The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution." -- Joseph Story, "Commentaries on the Constitution", 1833

**Most quotes were received through an email subscription to www.federalist.com ; the latter two are from the U.S. Constitution Page at http://www.restoringamerica.org/documents/us_const.html .

Daniel Leathers|1.6.04 @ 6:55AM|#

I love looking back at quotes like those and thinking a bit ... I mean, I love romanticizing over our fore-fathers. But when it really comes down to it, Eugene Volokh is right.

'Back in the day' civil liberties didn't really mean a whole heck of a lot. (See the Jefferson book about his Darker Side on Civil Liberties) By the standards of 1776, holding a mix of terrorists and non-terrorists in a giant holding camp, off-shore without any due process of law would not only be accepted (sadly, it is today as well) but they'd go a step father and just hang them all.

And speech? Please ... Eugene Volokh is again very correct, free speech was a joke until at least post-WWII.

|1.6.04 @ 7:58AM|#

The Alien and Sedition Act of 1798 is a poor example to start with. Members of Congress wanted to pass a strict law against certain types of speech, Adams was appalled but knew if he vetoed it, Congress would pass an even stricter law over his veto. So he signed it. Then it was overturned by later lawmakers.

The Constitution outlines the basic rights of the people, and the limited functions of government. It is the best model of government yet, though it necessarily is imperfect, because people are imperfect. There's no way around that. The point of looking at the Founders' original intent is not to see how they enacted it in particular circumstances, but what the *ideal* was behind the wording. Certainly they could have listed certain types of speech "unprotected" (as treason is, and as "fire" in a theater is), but they didn't. The idea being, in my mind, that we are to exercise the good sense God gave us and come up with suitable ways of exercising our rights and freedoms.

Original intent would involve analysing what they wrote, what they debated, what their views were, and coming to some sort of coherant understanding of the same. We each have a responsibility to do that - I am not turning that duty over to some lawyer to do. To close, I provide more of my favorite thing: quotes!!!

"If the Constitution is to be construed to mean what the majority at any given period in history wish the Constitution to mean, why a written Constitution?" --Frank J. Hogan, President, American Bar Assn. (1939)

"It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error." --U.S. Supreme Court (339 U.S. 382,442)

Now let's go eat a donut.

|1.6.04 @ 9:37AM|#

I think you people are taking the saying "Money talks" way too far. :-)

On the Dixie Chicks thread, it was pretty well established that having access to a microphone of a certain size (getting a media company to broadcast your speech) is not a first amendment right. But now, allowing a politician to buy as much airtime as a he wants is supposed to be a protected right.

Rebuttal: "A politician or political supported should be able to do whatever he wants with his money, as long as he doesn't hurt anyone." Fine, but now we're talking about property rights and freedom of transactions, not speech. Different animal.

|1.6.04 @ 9:54AM|#

>On the Dixie Chicks thread, it was pretty well established that having access to a microphone of a certain size (getting a media company to broadcast your speech) is not a first amendment right.

This is stupid argument, or even a non-argument. They have the right to speak up, just not the right to be agreed with by everybody. Get over it.

|1.6.04 @ 10:00AM|#

every time i see a jehovah's witness i think "if it weren't for those crazy, littering bastards we'd have a lot less publishing rights than we do now."

really.

i mean, at least 90% of what's been written in this blog/comments fields would have been illegal 100 years ago and probably imprisonable. obscenity, violation of treason and sedition act, advocating all manner of government dismantlement, etc. and especially all that obscenity.

obscenity is my least favorite imaginary offense.

|1.6.04 @ 10:19AM|#

Daniel Leathers wrote:
"But when it really comes down to it, Eugene Volokh is right."

How can he be right when he so understates the intended absolute constraint on the federal government's authority to control speech?
see: the posts, at 01:23 AM and 01:56 AM

Kevin Carson|1.6.04 @ 10:28AM|#

joe,

The virtue of appealing to an objective meaning is that government is controlled by something beyond its own power to alter. If the Constitution is an empty vessel to be filled by the government, how can we bind the government down to the chains of the Constitution, as Jefferson said?

You pay for the ability to import anachronistically "progressive" values into the text by allowing the other side to import their own authoritarian values into it when they're in power. So what it boils down to is, the meaning of the Constitution depends on the values of whatever authoritarian group holds power. I thought the whole point of a written Constitution was to restrain the government no matter who was in power.

For all the archaic values in the Constitution, at least an objective reading of the text limits a great deal of what Bush and Ashcroft can do, as well. So the benefits of a "living constitution," IMO, are a fool's bargain.

|1.6.04 @ 11:36AM|#

Joe - the problem is in who is prohibiting the speech. If the government had stepped in on the Dixie Chicks and laid waste to their first amendment rights by prohibiting the expression of their views then I think we would all have cause for outrage. This didn't happen. Some private individuals and organizations simply asserted their own first amendment rights by refusing to air said artists.

Likewise, if the certain individuals and organizations asserted their rights to ban or boycott certain political messages then I would not be alarmed. This already happens. But when the government steps in and declares that certain messages cannot be aired in certain ways then I think that is cause for alarm. That is exactly what has happened.

It isn't that money is speech - that's a red herring. It is that money facilitates speech in unique ways. If the government for instance were to pass a law stating that no resources could be expended upon the facilitation of racist speech then that would be a big problem since it would effectively ban a certain type of speech based on content. This type of law would be a bit contradictory - one could say that racist speech is still legal but expending resources is not. This may even pass muster in certain court - the law does not have problems with contradiction. The problem is, by definition, any time or effort spent in speaking (or even planning to speak) could be defined as a resource expense and therefore would be subject to legal review. Restrictions or limits on amounts of resources expended toward facilitation of speech are just smaller steps in this direction. And when it concerns political speech specifically, it is far more alarming - to me at least.

Fundamentally, this all stems from a very basic misunderstanding of what money is.

|1.6.04 @ 11:54AM|#

I am not disagreeing with Volokh's historical analyis, which seems to fit what I know, but if what he says is true, what was the purpose of the 1st amendment's authors in writing the free speech clause? The way Volokh is interpretating the law around the free speech clause makes it seem so limited in scope and with so many exceptions that it is utterly worthless.

|1.6.04 @ 12:20PM|#

I always find it interesting that so many people can interperet the "original intent of the founding fathers", and come up with so many different and varied results. Although I guess it's not all that remarkable when you consider that there are so many different and varied founding fathers. Maybe it's more remarkable that people often try to describe the "original intent of the founding fathers" as though they were one coherent and focused entity.

As much as I like pointing to the constitution as the guarantor of our freedoms and liberties, the fact is that it's still a political document that was designed by many people with differing views and differing agendas, and was just what was eventually agreed upon. Heck, even when they were agreeing to it, each of the founding fathers may have had their own "interpretation" of each section in the back of their minds that differed from what the person sitting next to them thought.

I know it's a pipe dream, but I'd love to see the constitution re-written in a more specific and detailed format. Of course, the horror that would come about by letting today's politicians and lawyers get ahold of it would probably be much worse than just letting them interperet it after the fact.

|1.7.04 @ 5:11AM|#

"On the Dixie Chicks thread, it was pretty well established that having access to a microphone of a certain size (getting a media company to broadcast your speech) is not a first amendment right. But now, allowing a politician to buy as much airtime as a he wants is supposed to be a protected right."

Joe and the Dixie Chicks have a right to say anything they want. They just don't have a right to expect others to broadcast it. The same is true of a politician. He has a right to say what he wants, and to offer money for airtime on TV, radio, etc. The TV & radio broadcasters should have a right to turn the pols money down, if they choose to not broadcast his message. It's all about freedom, free markets, free speech, and property rights Joe.

|1.7.04 @ 5:25AM|#

One thing left out of Volokh's column was the fact that the Bill of Rights only restricted the federal government until after the 14th Amendment. Consequently, the fact that state or local laws restricted speech in early America, and that courts did not strike down these laws, tells us nothing about the 1st Amendment. It might tell us something about the specific state's free speech amendment (assuming one existed), but it doesn't say squat about the federal BoRs freedom of speech.

Volokh's column seems to invoke a lot of local laws, etc., which are essentially beside the point until after the 14th (and the appropriate USSC interpretations of said amendment).

|1.7.04 @ 7:32AM|#

Remember though, Don, that many of us don't recognize those interpretations of the 14th amendment (and many of us don't recognize the Court's ability to decide what the Constitution says, either).

|1.7.04 @ 10:18AM|#

Rebecca, I am going to need a personal trainer if I keep agreeing with you.

|1.7.04 @ 12:49PM|#

Right through the five hole Kevin. Canada used to be governed by the British North America Act. I loosely paraphrase the civil liberty implications of the act as follows: If it is not expreesly prohibited elsewhere by the act, knock yourselves out. Then our late and unlamented Prime Minister Tudeau decided that we had to have our own Constitution. Repatriation of our Constitution turned everything upside down so that now it basically means that, unless it is specifically allowed under the constitution, forget it chumps. Keep your powder dry on this one.

|1.8.04 @ 1:08AM|#

Jason,

I understand that. But my point is that Volokh's argument seems to rely at least in part upon information that is irrelevent. I.e., local laws restricting free speech that were out of bounds to the federal BoRs -- by everyone's pre-14th understanding of the Constitution.

|1.8.04 @ 4:15AM|#

Don, whether a corporation chooses to do business with a potential client is a property rights/economic liberty issue, not a free speech issue. The two are not the same. All I'm saying.

|1.9.04 @ 12:24PM|#

Okay - from now on when I say "eat a donut", it means "everyone - except AJMB, who will be eating carrot sticks - eat a donut."

|1.9.04 @ 12:44PM|#

Joe,

When a pol tries to buy air time, it is both a property rights and free speech issue. After all, he is trying to air time to engage in speech. The broadcaster should, by nature of property rights, be able to NOT sell air time to the pol--property rights. The pol should be able to go elsewhere to (attempt to) buy free speech. When the govenment says the pol can't buy airtime for speech, it is violating both the freedom of speech and property rights.

|1.10.04 @ 3:24AM|#

Don!!! Awesome post - I totally agree with you.

|1.11.04 @ 2:34AM|#

Don, I actually agree that the limits on "issue ads" are a First Amendment problem. A flat out ban on engaging in speech.

My comments pertained to donation limits and spending limits. Perhaps you do have a right to buy airtime, but you do not have a right to collect as much money to buy airtime as you please.

|1.11.04 @ 9:27AM|#

Whyever not? If Soros can dedicate millions of dollars to the defeat of President Bush, why can't people paying for issue ads dedicate thousands of dollars to that end? It all comes down to whether it "looks" appropriate for people to spend lots of money on certain political issues, and that's all it is: looks.

|1.12.04 @ 2:10AM|#

Joe,

The people who are donating the money to the pol (or the NRA, or the Sierra Club, or whatever . . .) are attempting to engage in free speech. When you say the pol can't raise whatever amount of money he wants to buy air time, you are in effect denying the free speech of those who want to contribute to his campaign.