![]() ![]() With these definitions in view, the founders had no need to write out long lists of which types of rights were natural and which were positive. The right to a jury trial and the right to habeas corpus, for instance, were positive rights because they were procedures provided by the government. Meanwhile, positive rights were defined explicitly in terms in governmental authority. As Thomas Paine once put it, “A natural right is an animal right, and the power to act it, is supposed … to be mechanically contained within ourselves as individuals.” Eating, walking, thinking, and praying, for instance, were all things that individuals could do without a government, so they were all easily identifiable as natural rights. ![]() Natural rights were all the things that we could do simply as humans, without the intervention of a government. Unless we approach the task of constitutional interpretation on their terms rather than on ours, the First Amendment’s original meaning will remain elusive. For the founders, rights were divided into two categories: natural rights and positive rights. In other words, we’ve been focused on discerning an image in a single puzzle piece rather than looking for its place in a broader puzzle.įor us, a constitutional “right” is a legally enforceable privilege or immunity - something that the government has to provide us (e.g., our “right” to a jury trial) or something that the government cannot take away (e.g., our “right” to possess personal firearms for self-defense).īut American elites in the late 18th century understood their “rights” in a very different way. The key to understanding the original meanings of the speech and press clauses is to step back from a search for the meaning of particular rights and instead try to appreciate how the founders thought about rights more generally. ![]() But maybe there was an order to the chaos in a way that we haven’t previously appreciated. Constitutional disagreements were commonplace back then, just as they are today. ![]() Of course, attitudes toward speech and press freedoms were not uniform. If the founders couldn’t even agree among themselves about that type of law, then surely looking for the First Amendment’s “original meaning” is like searching for the Holy Grail.īut perhaps we have framed the question in entirely the wrong way, seeing hopeless confusion where the founders would have perceived a more ordered disagreement. Only a decade after the Constitution went into effect, Americans vehemently disagreed over whether Congress could pass the Sedition Act of 1798, which banned false and malicious criticisms of the federal government. As leading First Amendment scholar (and former dean of Richmond Law) Rodney Smolla puts it, “One can keep going round and round on the original meaning of the First Amendment, but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” A quick look at the history reinforces Smolla’s point. For jurists of all stripes, interpreting the First Amendment is a historical dead zone.īut why? The most straightforward reason, it seems, is that nobody knows what the First Amendment originally meant. With only peripheral exceptions, however, modern judicial decisions about expressive freedom do not consider original meaning at all. The Supreme Court has the power only to interpret the Constitution, not the power to change it, so arguments about original meaning have always had special force. Nowadays, we typically associate this approach with political conservatism, and particularly the claims of many self-proclaimed “originalists” who aim to interpret the Constitution according to its “original meaning.” But the truth is that virtually everyone puts enormous weight on history. When faced with opaque features of our Constitution, judges and legal scholars often look for what those provisions meant when they were enacted. In any event, the First Amendment says only that Congress cannot abridge “the freedom of” speech or the press it doesn’t say that Congress cannot restrict speech or the press at all. Laws against committing perjury, disclosing classified information, and making terrorist threats, for instance, all restrict “speech,” but no one seriously doubts their constitutionality. Every well-functioning government needs to restrict at least some speech. But this reading can’t be right, and it never has been. And the reasons why highlight fundamental shifts in American constitutional thought.Īt first glance, the text of the speech and press clauses might appear to prevent Congress from imposing any restrictions on expression. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. ![]()
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