Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Hello and welcome back to “So To Speak,” the free speech podcast where every other week take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino.
September 25 was First Amendment Day in America, the anniversary of the date in 1789 when Congress approved 12 amendments to our constitution. So, today we're going to discuss the history of America’s First Amendment and its five freedoms with the particular focus on the free speech and free press clauses. How did the First Amendment become the First Amendment? What were the founders thinking and doing when they drafted it? How was it interpreted once it was enacted? And has its meaning changed over the course of it’s 230 lifespan?
Joining us for this journey through history is Professor Akhil Reed Amar. Professor Amar is the Sterling Professor of Law and Political Science at Yale University where he has taught since 1985 when he joined the faculty at just 26 years old. Professor Amar has won numerous awards and been cited by the Supreme Court more than 40 cases, the most citations of his generation. He hosts a fascinating podcast, which I will recommend to you all, called “Amarica’s Constitution.” And he recently released a book about the Constitution titled “The Words that Made Us: America’s Constitutional Conversation, 1760 - 1840.”
That book along with two journal articles about the First Amendment will form the backbone of our discussion today. Those articles are “The First Amendment’s Firstness,” which Prof. Amar published in 2014 and “How America’s Constitution Affirmed Freedom of Speech even before the First Amendment,” which he published in 2010. Prof. Amar, welcome on to the show.
Akhil: Nico, it’s great to be with you. Thanks so much for having me.
Nico: So, we’re talking about the First Amendment today. So, I think in order to properly set up this conversation, I want to start by reading all 45 words of that amendment. It goes, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
So, let’s get down to brass tacks here. That’s the amendment. How did the framers conceptualize the need to enumerate the five, or some people say six, freedoms in the First Amendment? Some background here, the Constitution was approved by the delegates of the Constitutional Convention in 1787 without the First Amendment, which wouldn’t come until over four years later. So, how do we get to a place where the First Amendment is seen as needed?
Akhil Amar: So, I’ve told this story in different ways at different times. Truthfully, I think the most recent telling in the new book, “The Words that Made Us,” is the best. I wrote a book published in 1998 based on some articles, the first one in the Yale Law Journal in 1991. That article was called “The Bill of Rights is the Constitution.” The book that eventually came out of it in 1998 was called “The Bill of Rights Creation and Reconstruction.” In those tellings of the story, I tended to start in the first congress with James Madison in the summer of 1789, basically introducing some amendments that get passed through congress late that summer, 1789 and then passed on to the states for ratification.
Stuff, obviously, had happened before. But in my narrative, that was largely backstory. I kind of really foregrounded Madison’s authorship. That’s a conventional way to do it. I now realize that that misses a lot. So, in the new version I emphasize – Because this new book, as you mentioned, “The Words that Made us” is all about words and words about words, like the First Amendment. The First Amendment is words about words, about speech, about press. In this new version, “The Words that Made Us,” the story begins in 1760, not in 1789.
Here’s the first big, big point that’s relevant to your question. I now emphasize much more than ever before what we call the First Amendment really doesn’t originate in the mind of Madison. It originates in the very process by which the original Constitution is ratified. It begins, as it were, with the preamble, with “We the people of the United States, in actual fact, ordaining and establishing the Constitution.” And that occurs in 1787, ’88. September 1787 is when the Constitution goes public. It’s published in publications, newspapers, for the general public in a republican society and is printed start to finish.
And why am I telling you all that? Because there is freedom of the press before there is a First Amendment, you see. The press is absolutely free to publish the Constitution and newspapers up and down the continent do. No one’s telling them what to do, how to do it. They just are choosing to do that. Many of them put the preamble in especially big font because they understand this is a big deal. Since you said this is an uncensored conversation, I could even say it’s a big F’n deal to actually put the thing to a vote up and down the continent. How epic is that?
But not just a vote. There’s freedom of speech and debate about the constitution itself. You’re free to support it. You’re free to oppose it. And here’s the first thing that people start to say when they see the thing as published in mid-September, they say, “Dude, where are the rights?” You forgot to have a bill of rights. State constitutions have bills of rights. Why isn’t there one in the federal constitution? And that turns out to be one of the two biggest objections that the critics of the Constitution, the so-called Anti-Federalists, have. And it was their demand for a bill of rights that would ultimately culminate in what we call First Amendment.
So, I was starting the story way too late when I was starting with Madison in Congress in 1789 rather than the people up and down the continent in 1787-88, a whole year of epic free speech, free debate. The people who opposed the Constitution were actually listened to. And the very process of adopting the Constitution was an epic act of free speech.
Nico: Yeah, you write in your book – or I believe it was actually in one of your articles, “Here’s the key fact, Americans in ’78, 1787 through ’88 exercise remarkably robust, wide open, virtually uninhibited freedom of political expression as they pondered the Constitutional text proposed by the Philadelphia framers.” And you also talk about how Madison, himself, I’m quoting you here, “Wondered whether the Constitution could have ever been adopted had existing state governments tried to suppress criticisms of their own lapses. Seen from this angle, broad, free expression was chronological first. It was part of the very enactment process by which the Constitution was born.”
But could you even go further back than that? Functionally, it seemed, even under British rule, as though the colonists exercised free speech rights, even under laws that sought to censor. I’m thinking back here to the trial of John Peter Zenger, which I believe came in the 1740s, if I’m not misremembering.
Akhil: 1730s, yeah.
Nico: 1730s. You have liberty poles during the revolution and before the revolution. So, functionally Americans were exercising free speech rights long before even the conversation around the Constitution was happening. When they passed the Constitution without the bill of rights, was it just a presumption that of course we’re going to be able exercise our free speech rights? That’s what we’ve been doing for the past number of years. Many of the state constitutions protect these rights. How should we think about it in that way?
Akhil: Nico, you’re asking just the right questions. We’re beginning to work backwards, you see, my Bill of Rights article, my Bill of Rights book tended, as I say, foreground Madison and the first Congress. Well, we have to stop the story at least a year or two before in the process of adopting the Constitution. You’re saying, oh, we’ve got to go back even further. And you’re absolutely right.
Now, my new book, it doesn’t go back to Zenger in the 1730s because that’s not going to immediately lead to the American Revolution. So, here’s Act 1, Scene 1 of my new book. The new book starts in 1760 and here’s why. Because at the end of the day, the American Revolution is a revolt against a particular person, a king, King George III. So, Act 1, Scene 1 is the very first moment that Americans learn that he is their new king. It is late December 1760 and word arrives in the new world that the old king is dead, George II, and his grandson, a 22-year-old George III, is now their new king, their sovereign. And they raise their glasses to him. They toast him. They pledge their loyalty to him. They’re very happy and proud Britons in American.
So, 1730s is not really very continuous because that was a different George, George I, probably. So, I began in 1760 and everything seems hunky dory. And I begin with people actually exercising their ability to assemble together. And they’re assembling, actually, to hail their new king and toast him.
But immediately thereafter, Parliament starts imposing taxes on the colonists and they’re pushing back against that. That, actually, is an epic free speech episode in 1765. And I’m going to tell you just a little bit about that, the Stamp Act Criss. That’s how many people begin the story of the American Revolution, when Parliament starts to tax America in 1765, Sugar Act, Stamp Act.
I say, oh, start it earlier. Start with actually, first of all, in 1760, Americans saying Hail King George, Long Live the King. And then, immediately thereafter, it turns out there’s this interesting court case involving a thing called the writs of assistance. And that’s freedom of speech, as well, because you’ve got this rabble-rousing lawyer who is criticizing certain things that the British are doing, even before the Stamp Act. And he’s basically playing to the crowd. He loses the court case but he gets some newspaper coverage and he gets some local press coverage. He parlays that.
His name is James Otis. And he's going to parlay that into a political campaign. So, he gets elected to the Massachusetts assembly. His father was speaker of the house of the Massachusetts assembly. He’s going to become the great colonial rabble rouser before Patrick Henry, before Samuel Addams, before Thomas Jefferson. So, that’s 1760-61. And he’s using free speech in the court room and trying to get press attention.
So, now the press is going to start to be important. People in other places, other colonies aren’t covering this. So, it’s just a Boston story, a Massachusetts story, initially. But when Parliament in 1764-65 starts to tax all America, there’s going to be push back not just in Massachusetts but in Virginia, up and down the continent. For the first time ever, there’s going to be an assembly. Remember, our first amendment talks about freedom of assembly.
The colonists up and down the continent are going to come up with an inter-colonial assembly. It’s called the Stamp Act Congress to mobilize opposition to Parliament, to express their grievances using freedom of speech. It’s going to get published in all the newspaper, freedom of the press. And the person who more than anyone else sparks and organizes the Stamp Act Congress is named James Otis.
His first real appearance on a public scene was in the writs of assistance case, which is my Act 1, Scene 1 in 1761. So, my first chapter is James Otis the rabble rouser is going to become a really important patriot figure. There’s this obscure lawyer, no one’s ever heard of him before, but he’s in the room taking notes. His name is John Addams. Later on, he’s going to be not so heroic on freedom of the press. We’re going to talk about the Sedition Act, I hope today. But –
Nico: You’re also not a big fan of John Addams, generally, if I’ve heard your commentary.
Akhil: So, I’m going to criticize him. But on this one, look, but for John Addams, I wouldn’t have actually stumbled across this writs of assistance controversy. 50 years later, he says that’s actually when the revolution began. That’s when independence –
Nico: John Addams said that?
Akhil: Yes. That’s when independence was born. Now, part of the reason he said that was because he was in the room and he wanted everyone to know that he was there before – And part of it is because he’s such a biased Bostonian or Massachusetts man. So, he’s saying before there was Thomas Jefferson, before there was Patrick Henry, before there was George Washington, it was in Boston when it all started in 1760-61. So, he’s in the room.
You’ve got the leading early colonial rabble-rouser, patriot, James Otis, making this speech that people are paying attention to. Oh, and you’ve got America’s leading loyalist. The guy’s going to become the most distinguished, most respected American born backer of King George. His name is Thomas Hutchinson. And he’s in the room as well, he’s actually one of the judges.
So, I’ve got these fascinating characters and it’s a free speech, free press story. But only Massachusetts is paying attention. Four years later, oh, James Otis is going to organize a Stamp Act Congress pushing back against parliamentary taxation up and down the continent. Otis, as much as anyone, coins the phrase Taxation without Representation is Tyranny. That’s a James Otis phrase and it starts to resonate.
But here’s the thing about the Stamp Act. Everyone is very knowledgeable, audience that we have for this podcast, and for “Amarica’s Constitution,” by the way. We’ve got a good, learned audience, also. They’ve heard of no taxation without representation. They’ve heard of the Stamp Act. They know that parliament was criticized for imposing taxes on America when Americans weren’t represented in Parliament.
Here’s what they don’t know. That that tax was a tax on all sorts of paper goods. It was a tax on deeds, on wills, on contracts. But it was also a tax on newspapers. And newspapers at the time weren’t paying for content. Basically, it was paper and ink. They were aggregators and advertisers. People would pay to have their advertisements in the press. And scribblers would just send in free material over the transom and they wouldn’t get paid. They’re not staffers. But they’d get published.
So, if that’s your business model, oh, you’re not going to like a tax on paper. So, who pushes back hard against the Stamp Act? It’s newspapers up and down the continent. And this is 1765. So, yes, we’re pushing the story back from Madison in 1789, the first congress, to adopting the Constitution in 1787. But now, oh, two decades earlier, newspapers are playing a huge role in pushing back against the Stamp Act. Here’s one thing they do, they simply publish their newspapers without paying for the stamp. And some of them actually mockingly put in a little blank space where the stamp is supposed to go. Or they put in a mock stamp of their own creation.
So, newspapers up and down the continent in 1765 are using their freedom of the press to push back against parliament.
Nico: Yeah, you write in your book, “The Words that Made Us,” that unwittingly, the act enabled newspaper men to mock parliament simply by ignoring it and doing what the press had always done, print words on paper.” Now, some of the newspaper men were a little bit cautious at the beginning. They didn’t print their names on the masthead, for example. Or they stopped publishing for a little while just to see how the situation would shake out. But then it seems that a lot of them just ignored it.
One of the things that struck me in reading your book, especially this part about it, was how much of their opposition to the Stamp Act wasn’t rooted in any sort of concerns for the viability of their business or the economy. It seemed to be rooted in a philosophical appreciation and sense for what liberty is and what free press and free speech is. You have the Boston Gazette, for example, saying, “It seems very manifest from the Stamp Act itself, that a design is formed to strip us in a great measure of the mans of knowledge.” That’s a philosophical argument that the press is a necessary component for an educated populace, for the production and dissemination of knowledge.
You also quote an editorial from another newspaper, which is an ode to the press as a test of truth, the bulwark of public safety and the guardian of freedom. I will ask you, though, because that Boston Gazette quote, they censor the phrase Stamp Act itself. So, I wondered if there was some sort of thing they couldn’t say or that would clue the would-be censors in or the would-be police into their articles if they had, for example, used the phrase itself. Or if that’s just kind of a pejorative of the Stamp Act, kind of like Voldemort in Harry Potter, it shall not be named.
Akhil: He who shall not be named. Yeah, so I’m not sure on that specific thing whether they thought somehow that would somehow protect them against punishment or something like that. But here’s what is amazing about those quotes that you have. So, now there’s pushback, not just about taxation, but about press regulation, in effect. They’re saying, gee, you’re putting a tax on college diplomas, and newspapers, and books, and almanacs, and the means of communication. And that's particularly problematic.
Nico: Just checking the book. Is there something you’re looking for.
Akhil: Exactly. One really interesting things is that – Do you have the page, by the way, in the book from the Gazette because I just want to say one fun fact about that.
Nico: I don’t have the page. But I got that part, at least, from the NYU’s –
Akhil: Great. Hang on just a second. We can just cut this for one second.
Nico: Aaron, if you could just cut this portion while the good professor is looking up the passage. That would be appreciated.
Akhil: Okay. So, Nico, here’s the amazing thing about this 1765 Boston Gazette excerpt. Just to repeat it, “It seems very manifest from the Stamp Act,” although they take out some of the letters. It’s S-P A-C. “It seems very manifest from the Stamp Act itself, the design is formed to strip us in a great measure of the means of knowledge by loading the press, the colleges, and even an almanac, and a newspaper with restraints and duties.” And then, later on, this Connecticut newspaper talks about the press, as you said, “The test of truth, the bulwark of public safety, the guardian of freedom.”
What’s really interesting is that Gazette piece is written by, anonymously, John Addams. Maybe it’s anonymous because he’s afraid, possibly, of reprisal. But that’s his first – He’s just turning 30. He’s a week shy of his 30th birthday. And that’s his first important statement on parliamentary power, what would become the revolution. And you see it’s pro-speech and pro-press, which makes it so sad that later in life he’s going to forget all of this stuff and try to punish newspapers who criticized him even though he had used newspapers as a young man to criticize other officials. He forgot where he came from. That’s why he was a one-term failed president, ultimately.
He’s the only early president who doesn’t get re-elected. Washington, two terms and walks away. Jefferson two terms and chooses to walk away. Madison and Monroe, each two terms and then voluntarily steps down. Addams is the only early president who loses. And I believe he loses because he forgot where he came from or American come. And as you and I are talking, where American came from is freedom of speech and the press.
And it doesn’t begin with Madison in 1789 and the first congress or even in the ratification of the Constitution. It begins much earlier. We can go back to Zenger. But I’m showing a continuous unfolding of press exercise and broad exercises of speech, press, petition, assembly, and the like in the 1760s. You know what that Stamp Act Congress does? It petitions Congress and petitions the king for a redress of grievances.
And later Continental Congresses, the First Continental Congresses in 1774 is going to do the same thing. And the Second Continental Congress in 1775 is going to do the same thing. What are they doing? They’re assembling. They’re petitioning. They’re getting their pronouncements published in newspapers, freedom of the press. That’s what Americans are doing and the British are trying to shut all that down and they’re not listening.
And George III, I say, loses American for a simple reason. He doesn’t read American newspapers. And he’s not actually paying attention to what’s going on. And Americans, increasingly, are reading American newspapers. Well, you say of course. And I say, no, it’s not that Bostonians are reading Boston newspapers and New Yorkers are reading New York newspapers and Philadelphians are reading Philadelphia newspapers. By the mid-1760s, Philadelphians are reading New York newspapers and Boston newspapers. They’re retweeting each other’s essays. Because, again, they’re not paying for content very much.
But basically, they’re aggregating and there’s the beginning of a continental and even, frankly, a world discourse. Because they’re also trying to talk back and forth with folks in London about these important issues of British constitutional law, no taxation without representation, freedom of the press, and the like.
Nico: I’ve wondered this about the Bill of Rights. So, at the beginning of this conversation I alluded to the fact that there were 12 amendments that were sent off to the states for ratification after being passed by the congress. Only 10 of them come back. But they just so happen to be the 10 that deal most squarely with rights. You know, the rights of the people. The first two amendments, and correct me if I’m wrong here, dealt with how congress could pay itself, the process by which it could pay itself. Another one dealt with how representatives would be apportioned or something like that. The rest deal, to a certain extent, with the rights that we have. That’s why we call it the Bill of Rights.
Did the congress that sent these 12 amendments off to the states conceive of a Bill of Rights as we think of it today? Or did they just think these are 10 additional articles that we want to add to the Constitution. And it just so happens that 10 of them deal with rights and the other two deal with procedure.
Akhil: Okay, so let me fill in a couple of the missing pieces of our chronology and I think it will fall into place. And again, I didn’t tell the story quite this way in my 1998 book on the Bill of Rights because I started the story too late.
Okay, so we’re starting our story in 1760 and Americans are learning from newspapers that they’ve got a new king. So, actually first paragraph of Chapter 1, you’re going to hear, if you listen carefully, repeated allusions to news and newspapers. So, here’s how the book begins, Chapter 1:
“The news reach American on the stead that had no legs but promised swiftness. The merchant ship Racehorse landed in Boston on Saturday, December 27, 1760 after 40 days on a choppy ocean that both connected and divided old England and new England. The trader bore incontrovertible tidings from early November British newspapers, copies of which Capt. Samuel Partridge immediately distributed to Boston print shops for partial republication. As passengers and crew came aboard, word also spread from mouth to mouth, the old king was dead and a young king now sat on the throne.”
So, you’re seeing here newspapers, print shops, people talking. But we are going to call the First Amendment – So, the news reaches America. That’s Act 1, Scene 1. We’ve got a new king. Immediately thereafter, there’s a court case, because with a new king, there’s actually a requirement that all the old writs that used to issue in the name of King George II now have to issue in the name of a new king. And this generated a court case. James Otis, this rabble-rousing lawyer, is going to use to actually criticize certain British practices. He’s making an appeal, basically, he loses the court case.
But he wins in the court of public opinion because there’s an audience there. This is freedom of speech. People are gathered, this is freedom of assembly. And local newspapers cover it, a local newspaper. But no one outside of Boston is paying attention. Then the Stamp Act comes along and parliament is actually taxing all of America. So, the Americans start paying attention to each other. Boston is listening to New York and Philadelphia and Charleston. And Americans are starting to coordinate and listen to each other and make appeals to Britain, newspaper essays back and forth, and a Stamp Act congress, a continental assembly.
For the first time, Americans assembling up and down the continent against Britain, that had never happened before. Remember, the organizer of that Stamp Act Congress that meets in New York in 1765 is James Otis. And what are they doing? They’re petitioning the king, they’re petitioning parliament, and they’re getting newspapers to print out all of their protests. And local colonial assemblies, as in freedom of assembly, are doing the same thing and getting local newspapers to print out their protests. So, they’re petitioning, and assembling, and getting press coverage. That’s 1765.
The Brits, instead of listening, increasingly try to shut down American discourse and eventually there’s going to be a fighting war. Lexington and Concord and Bunker Hill because the Brits aren’t listening, aren’t reading. They’re trying to shut down this burgeoning discourse.
Now, here’s the missing piece that we didn’t fill in. Americans adopt state constitutions and a Declaration of Independence. The Declaration is designed to be – it’s short so it can appear in newspapers, so it can be read aloud in gatherings, in assemblies, so it can be read to the troops. So, the Declaration of Independence is part of this newspaper, and assembly, and free speech revolution. And the state constitutions that immediately emerge in 1776, every one of them is very short and published start to finish in newspapers.
Nico: So, you’re saying that was a conscious decision to make them short, the Declaration of Independence, the constitutions?
Akhil: Yes. Written constitutions, written declarations are all about newspapers, so they’re short. You can’t have the American Revolution and the American Constitutional Tradition without newspapers. And these printed start to finish. This is the missing link. These state constitutions, most of them, have sections called Bills of Rights. Many of those sections with Bills of Rights actually talk about, for example, liberty of the press or freedom of the press. Some of them will later, actually, talk about freedom of speech. Sometimes freedom of speech and debate in a legislative assembly, and sometimes even more broadly.
And the people in Massachusetts are reading the Pennsylvania Declaration of Rights and the Maryland Declaration of Rights. So, there’s inter-colonial conversation. The Virginia Declaration of Rights, which will become the Virginia Bill of Rights is drafted by George Mason. The first draft is published, not just in Virginia, but republished in at least four Philadelphia newspapers in June of 1776. So, Franklin is reading it. Jefferson is reading it. Addams is reading it. As they’re composing the Declaration of Independence, they’ve already got this proto state bill of rights drafted by George Mason.
And newspapers across America are reprinting these and bought mixing and matching and borrowing from all that. So, that’s why Americans when the Constitution is made public, the first thing they say is you forgot the rights because they’ve seen state constitutions. And state constitutions have bills of rights. The US Constitution looks a lot like state constitutions. It’s written. It’s got a bi-cameral legislature, which every state has except Pennsylvania and Georgia. It’s got a separate judiciary, which every state has. But most states also have bills of rights. Oh, state constitutions in Massachusetts and New Hampshire were put to a special vote. And the US Constitution is designed to be put to a special vote.
As soon as it becomes public in September 1787, in that process of putting it to a vote, remember, there’s free speech. People are talking about it. And freedom of the press. Newspapers are printing copies of the Constitution by the tens of thousands. The first thing ordinary people say is where is the bill of rights because state constitutions have one and this looks like a state constitution, this proposed federal constitution. But it’s missing a thing called the bill of rights. So, that’s what they demand.
And here’s the deal. In the course of ratifying – They have many objections, but two are especially prominent. One the House of Representatives is too small to be truly representative. It’s just too tiny compared to state legislatures. Parliament has 550 members. Many states have 100s of members. And there’s only going to be 65 members in the first House. That’s smaller than the House of Representatives in 10 of the 11 states. Virginia, its state legislature has, let’s say 300 or 400 members. But they’re only going to be 10 members of Congress from all of Virginia.
There are 1500 to 2000 state assemblymen up and down the continent and there are only going to be 65 members of Congress. That’s too small. That’s their first objection. And it’s going to become the original first amendment. Okay, the congress is going to need to be bigger. It doesn’t get passed. But it’s the original first amendment on the list of 12. That was one of their big objections and it’s not a surprise that that was the original first amendment, it just doesn’t get ratified.
But their second big objection, the two biggest objections of the Anti-Federalists is dude, you forgot the rights. And here’s what the federalists say about both of those. They say, oh, you’re right about both of those. We goofed. They pivot. Madison and Washington, in the end, who did not back a bill of rights at Philadelphia. Who proposed a bill of rights at Philadelphia behind closed doors? Wait for it. His name is George Mason. He is the author of the Virginia Declaration of Rights of 1776. He said, “Hey, I’ll compose one for the federal government.” It’s late in the summer. People are tired. They make a mistake. They just say we want to go home.
Because Mason says, “Oh, I can do it quickly.” And they’re thinking this will be another two weeks and they want to go home. So, they make a mistake. They don’t add it. And the first thing that Americans say is you forgot the rights. And the other thing they say is the House is too small. It’s not really representative of the diversity of America.
What do the Federalists say in response? In this year-long ratification process, because it’s not just putting the thing to a vote. It’s talking about it with newspaper essays, in conventions, which are people assembling, face-to-face, discussing the thing clause by clause, idea by idea. In this conversation, the Constitution is the product of this epic continental conversation. In that conversation, the Federalists say, okay, we goofed. Here’s what we propose. If you will ratify, if you will say yes, we’ll work with you to fix the thing.
The original congress was too small but that was just because we didn’t have a census and we were just making up some numbers. As soon as we have a first census, we will try to grow the congress as fast as possible. And you’re right, we should have a Bill of Rights, in certain respects. So, we’ll work with you to come up with a good set of rights. And Madison keeps his word. Because if he doesn’t keep his word – Oh, it’s not just that that was required to get the Constitution ratified, this promise by the federalists, Madison has to make this promise in order to get elected to the first Congress. He has to make this promise to his own constituents who actually say, “We’re not going to send you to Congress if you’re not all in on rights.”
They trust him, in part, because long before he had been a champion of religious freedom. Where’s that all coming from? George Mason’s state declaration of rights that had actually a provision about religious freedom as well as freedom of the press. And actually, Madison thought it was too weak and he strengthened it. Madison has credibility with his constituents, especially on religious rights, which are going to be part of what the first amendment is about. So, he says, in effect, he publishes several newspaper essays and letters to friends that reprint it to say, “Okay, I goofed. We should have some rights in the Constitution. If I’m in Congress, I’ll work to get them adopted.”
That’s the backstory that I didn’t tell in a sufficiently, fulsome, and complete way in my 1998 book that I do tell in the new book.
Nico: The five freedoms, depends on how you break out the religion clause, six freedoms, in the First Amendment, we have religion, press, speech, assembly, petition, in the state constitutions, were those always grouped together? Or is this a novel construction in the federal constitution. I think of the First Amendment, almost, when you think of those five freedoms, as kid of the conscience amendment more than I do – And the word conscience isn’t even in there. But it protects the conscious of its citizenry.
Akhil: And the word conscience is in a lot of their discourse. Jefferson isn’t there in Philadelphia. He’s off in France. When he finally sees what’s in the Constitution, he and Madison are very close. Why are they very close? Because they go way back in 1776, they worked together to affirm religious freedom. Madison got George Mason to broaden the affirmation of religious freedom in the Virginia Bill of Rights. And then Madison and Jefferson kept working later on to get an even more expansive affirmation of religious rights that didn’t’ get added to the Virginia Bill of Rights but was a 1785 Virginia statute, the Bill of Religious Freedom, that Madison and Jefferson worked together to accomplish.
So, these guys are friends and they bonded over an idea of right, in particular, religious rights, religious freedom. When the Constitution comes out, because it was met in secret, but as soon as its proposal was released, the delegates were free to talk about what had happen in the convention. Madison sends Jefferson, who is off in France, a copy of the proposed constitution. And he starts to also tells him here’s what happened in Philadelph Convention. And Jefferson immediately sends back, “I like a whole bunch of things. Here’s what I don’t like. There’s no Bill of Rights.” That’s front and center.
And Madison initially fobs him off and Jefferson writes a second letter and a third. Jefferson is relentless. And Jefferson keeps saying you forgot the rights, you forgot the rights, you forgot the rights. And in those letters, you will see words like conscience. And in broader discourse, you will see words like conscience. And it's in the Virginia Bill of Religious Freedom and state constitutions.
So, here’s the interesting that you’re asking. And it’s just the right question to ask. How does the organization of the federal clauses and the words in them, how do those compare to what’s in state constitutions? Here’s the answer, yes, many state constitutions had liberty of the press. Fewer had freedom of speech. And several had religious freedom provisions. Not an establishment, most states had established religions of one sort of another. But they’ve got religion clauses and they’ve got expression clauses, especially freedom of the press, sometimes freedom of speech.
But they never, in any state constitution, push them together into a single cluster. So, one question they’re asking is why are these things clustered together in what we call the First Amendment, which is actually third on the list. So, first is what was the order all about and why were they clustered?
Here’s what the order was all about. We today think the First Amendment is there because it’s most important. But remember, it was third on the original Congress’ list and the first two didn’t get ratified. So, judges, justices have said it’s first because it’s most important. It reminds me of, I think it was maybe Ma Ferguson, or maybe it was Archie Bunker, who said, if English was good enough for Jesus Christ, it’s good enough for me. See, because it’s not true but you can understand why people think that way.
So, the order of what we call the Bill of Rights, the order of these original amendments was driven by the following: Originally they were going to be added into the text of the original Constitution rather than append it as postscripts. So, they were just tracking the order of the original Constitution. So, what was one big problem? Congressional size. That’s Article 1, Section 6. So, that’s their first amendment. Congressional pay, that’s Article 1, Section 6. That’s the original second amendment. Third amendment was congressional powers.
That’s going to be our first amendment. How does it begin? “Congress shall make no law,” the original idea was that Congress had no enumerated power in certain areas. Congress had no – What does the Constitution say? “Congress shall have power to make all laws that are necessary and proper in various areas.” The First Amendment is saying, “Congress shall make no law.” So, it’s building on this claim. And the claim was there’s no enumerated power in certain areas over expression. There’s no enumerate power to restrict free expression and there’s no enumerated power to regulate religion.
They get smushed together initially for reasons of federalism more than for reasons of rights. Why do I say that? Because no state mushes them together that way. State bills of rights have religion clauses and expression clauses. But they’re different. They’re not in the same cluster. Only the US Constitution pushes them together. Originally, actually, they were separate provisions in James Madison’s initial proposal. They get, eventually, stitched together. And I say, it’s largely for reasons of federalism.
Nico: What do you mean by that? Reasons of federalism?
Akhil: That Congress has no enumerated power over these areas. Where, see, Congress does have power over search and seizure because you’re going to need to have searches and seizures to enforce customs laws. So, there is power to enforce tax laws. You’re going to need, sometimes, to inspect warehouses to make sure they’re not cheating the taxman. That was the writs of assistance case with James Otis. It was actually about customs duties.
So, there is enumerated power to have various search and seizure laws. You have to have courts. So, there are provisions that regulate courts. Courts are in Article 3. They have to have due process, the fifth amendment says. And the sixth amendment says you have to have a public trial and a jury trial. Well, there’s surely enumerated power to have court. That’s Article 3.
But many folks said Congress has no power whatsoever to regulate religion. That’s left to the states. And remember, some states have established churches. The original establishment clause doesn’t say – It does say Congress can’t create a national church, true. But it also, in effect, says Congress can’t dis-establish state churches because that would be a law respecting, a law on the topic of, a law in regards to, in reference to established church.
So, at the time of the founding, half the states have strongly established churches. Many states actually have weak establishments of a certain church. They have religious tests in order to be a government official. There are only two states that don’t have religious tests to hold office, Virginia and New York. New York is actually modifying that even at the time of the Constitution.
Nico: Can I ask you about these enumerated rates? The arguments from the Federalists, if I’m understanding it correctly is that we don’t need a bill of rights because to create a bill of rights, to tell the federal government that it can’t do something presumes, essentially that – Well, the constitution only tells them what they can do, right. Of course, they can’t abridge the freedom of speech or freedom of press or the right of people to practice a religion because the Constitution doesn’t give them the right to do that.
So, then they add the Bill of Rights because people want that or the anti-federalists want that. This is kind of a broader question in hindsight here. You have the ninth amendment, which seems to be the compromise there, it says all the rights not enumerated here are still respected. Judge Bork, who wasn’t confirmed, called that an inkblot.
In retrospect, who do you think was right on that debate? Do you think to enumerate certain rights kind of created a set of rights for which no other ones would be respected? Like how often is the ninth amendment enforced, right? You get the reconstruction amendments and you get the privileges and immunity clause, which is hardly ever enforced. It’s enforced under the due process clause. I know this is getting slightly far afield from the First Amendment. But it’s something I’ve always wondered and want to take this brief digression.
Akhil: It’s not at all. It’s just such a great set of questions. I think the Anti-Federalists were right and I think the Federalists were right. The only person who wasn’t right is Robert Bork who was my teacher. It is because he knew no history. He got me interested in history because he said originalism is important. He persuaded me of that. So, I have spent my life actually studying the very history that he said was important but knew nothing about. So, I’m being fierce here. I knew him. He was my teacher. And he didn’t know his history at all. I just wrote an 832-page book, one of several big, epic history books that I’ve written because he persuaded me. I owe it to him.
Since you mentioned Harry Potter, I actually wrote a tribute essay to him when he passed away. I thought about this when I wrote it, Harry Potter and Snape. When I had him as a teacher, I kind of pushed back against him in all sorts of ways. And I now realize that he had a much bigger influence on me than I understood. As Harry Potter ages, he comes to have a different understanding of Severus Snape. As I’ve aged, I’ve come to mellow in my take on Bork.
Nico: But was he right, functionally, if not theoretically?
Akhil: No, he was wrong in every way. I’ll come to that. Maybe we don’t call it the ninth amendment, we call it substantive due process. But we have a robust and enumerated rights tradition. And he didn’t get it because he didn’t actually know history and know the deep context. No, it’s ridiculous and offensive to call something in the Constitution an inkblot. You’re not taking it seriously. Really? They wrote an inkblot in the Constitution? Maybe. But I’d want a lot of evidence before I thought that they wrote something that was unintelligible because they didn’t want to deal with it.
And to actually understand it you would have had – He wasn’t in his bones in the story and neither was Scalia. And there have been people who have been in their bones in story. Clarence Thomas is much more interested in history and reads about it. I’m a democrat, he's a republican. I’m left of center, he’s right of center, Clarence Thomas. But he studies history in a way that Bork and Scalia, frankly, didn’t.
Nico: You kind of see that in some of Clarence Thomas’ writings on privileges and immunity clauses, for example.
Akhil: You actually can. And so, let me just take a step back and say, okay, the Federalists were right and the Anti-Federalists, they were both right. And the compromise is the ninth amendment. Now we’re filling in all of the missing pieces and we have to get to reconstruction because it’s really important.
Nico: Yeah, I’ve got a bunch of questions on reconstruction. You talk about it.
Akhil: Because originally, the First Amendment, just to cut to the reconstruction story, it says religion and it says speech, but they were put together for reasons having to do with the powers of Congress. By the time of the 14th amendment, they get put together, they get reinterpreted, saying oh, it’s because religious speech is important. Because, actually, you can’t separate religious speech from political speech. Of course, they would think that, the reconstruction generation, because the crusade against slavery was a political crusade but it was also a religious crusade, you see, led by abolitionists who were leading preachers and family members of preachers like Harriet Beecher Stowe.
So, eventually, we’re going to reinterpret our First Amendment. We’re going to say it’s first because it’s the most important. And it combines religion and speech because we have to protect religious speech. And that’s going to be a reconstruction story. So, we’re going to get to that eventually. But take a step back.
Why were the Anti-Federalists right? Because, first of all, because the Federalists say there’s no power to regulate speech or press in the first place. So, why do you need to protect it? And there’s no power to have unreasonable searches and seizures. There’s no power to abrogate jury trial.
The Anti-Federalists say first of all, you’re going to be able to regulate the territories and the District of Columbia and there, there’s actually plenary power. You’re going to be just like a state government. And state governments have bills of rights, so Congress, when you’re regulating the territories and DC, which is the seat of government, you’re going to have plenary power, too. You should have a bill of rights when you’re in effect sitting in the shoes of a state legislature. That’s point one.
Point two, what are you talking about there’s no power not to have juries? You’ve got an Article 3. You’re going to have to have court. Article 3 actually says that there must be juries. But it doesn’t say they have to come from a district. It doesn’t say, actually, that there has to be a speedy trial or a public trial. So, there is enumerated power over the judiciary, but you just haven’t put in proper rights. What do you mean that there’s no power to have unreasonable search and seizures? You said there’s tax power.
And you said Congress is going to have power to pass necessary and proper laws. Necessary and proper laws to implement tax power is going to involve searching and seizing warehouses and ships and all the rest to make sure that there’s not smuggling going on. So, it’s just not true that there’s no enumerated power over certain things.
So, here’s actually what the Federalists say, it’s like the triple dog bite defense. I don’t own a dog, it didn’t bit you, and you kicked it first. A bill of rights is bad and unnecessary. Oh, and besides, we already have one. We already have protections of no jury trial and bill of attainder and no ex-post facto. Well, if you already have one, it’s not a bad thing, you see. So, when they said simultaneously a bill of rights would be a bad idea and we already have it. That’s what Federalists say. And they change their mind because the argument wasn’t good.
What really happened? Here’s what really happened. They were tired at Philadelphia. They didn’t give sufficient thought to George Mason’s proposal. And they blew him off. And he’s one of three people who refuses to sign the constitution. This was a mistake on their part. When he goes public in the press with – The three people who don’t sign are Elbridge Gerry of Massachusetts, George Mason from Virginia, and the governor of Virginia, Edmund Randolph.
George Mason goes public with his reasons and prominent among those reasons are there’s no bill of rights. Ordinary people, even before George Mason, are seeing there’s no bill of rights. The Federalists are on the defensive. People hate to admit they make an mistake, believe it or not. That’s not just true today. That’s true back then. So, they come up with baloney reasons, in a way. They’re just trying to explain why they goofed. And they said, “Well, the bill of rights is dangerous, you don’t really need one, and besides, we have one.” And those three don’t add up.
They get push back and push back and push back and eventually they say, “Okay, we’re going to need to pivot here, otherwise we won’t get the constitution ratified. We’ll work with you on the bill of rights.” So, that’s why the Anti-Federalists were right about a whole bunch of things.
Here’s where the Federalists were right. And partly it’s face saving. Gee, we have to be careful because we don’t want a bill of rights, if we adopt it, to somehow imply that these are the only rights. We may forget something. We may not be able to itemize and categorize all the rights. It’s also face saving for them. Because they can say, oh, there was a reason we didn’t compose a rights because we were worried about being insufficiently inclusive. The problem is you already have a habeas clause in the Constitution, and a no expo facto clause in the Constitution, and a no bill of attainder clause in the Constitution, and a provision – You already have a kind of incomplete list of rights. So, that was already a problem.
But face saving, they say there’s a problem if we list rights. So, the ninth amendment is a beautiful compromise. The Federalists and the Anti-Federalists get together. The Anti-Federalists are being brought on board. They’re being listened to. And the Federalists are saving face and actually making improvements saying this list of rights is not exhaustive. There are other rights that aren’t actually specified. Then the game becomes, the ninth amendment, where do those other rights come from. And I think they come from – and the 14th amendment is not going to specify all the privileges and immunities that states can’t abridge.
But here’s what I want to say just on those two things, because they are non-specified privileges and immunities and unenumerated ninth amendment rights. First, read the words of the 14th amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Now here’s what I want your audience to hear. That’s building on the language of the First Amendment, which says, “Congress shall make no law will abridge the freedom of speech and the press.” Shall, make, no, law, abridge, those are all in the First amendment. Those are all in the 14th amendment. So, the 14th amendment is obviously building on the first in some interesting ways.
Monkeys sitting on a typewriter wouldn’t have that similar word pattern. No, shall, make, law, abridge. Here’s the big difference. The 14th amendment says states and localities, cities, counties, all the rest can’t mess with these fundamental rights. The original Bill of Rights limited only the federal government. The first word of the First Amendment, “Congress shall make no law.” Why? Because the Anti-Federalists were freaked out about federal power and they tended to trust states and localities and there were state bills of rights.
By the time of the 14th amendment, it becomes clear, oh, states are violating fundamental rights of free Blacks and whites, they’re making it a crime to criticize slavery. We need a second bill of rights limiting states and localities, especially after the Civil War. The states misbehaved with succession. We need a second bill of rights against localities just like the framers needed a first bill of rights because of the central government.
Put a different way, the Constitution is the product of our history, most essentially, our wars. The Revolution War, who were the bad guys? London, Parliament, the central government. We are afraid Congress is going to become very arrogant and unrepresentative. We need rights against the central government. Because the American Revolution is localist against the center. Civil War, who misbehaves? States. They take up arms against the duly government, just like January 6, storming the Capital, even though Biden was duly elected.
So, the second bill of rights, after the Civil War, is a bill against states which have misbehaved. Shall, make, no, law, abridge in both amendments. But you can’t enumerate all the rights because there are just so many. So, the ninth amendment says this isn’t exhaustive. Privileges immune clause doesn’t specify all the things the states can’t do. Where do we find an enumerated rights? I would say in state constitutions and the Declaration of Independence, in American culture and tradition. We find it in America. Judges don’t make it up but they’re not all itemized.
Nico: I realize we’re at hour here. Do you have a few more minutes for a few more questions?
Akhil: Oh, of course.
Nico: Okay, great. I want to actually quote from you on the reconstruction amendments. Because you argue that freedom of expression was kind of central to what they were doing there. You say, “This Civil War generation textualized their prism in the reconstruction amendments themselves. For them, the First Amendment was indeed first, not just in text but in importance. Reconstruction republicans had seen with their own eyes massive suppression of political speech and religious speech.”
Quoting you elsewhere, “The republican party had been functionally outlawed in the deep south in the 1950s. Men of the cloth had been prosecuted and imprisoned, indeed threatened with capital punishment for preaching in the pulpit that slavery was sin.” Lincoln had gotten zero, and I didn’t know this, this is a new fact for me. He got zero popular votes south of Virginia in 1860 –
Akhil: Not electoral votes, popular votes. Because the republican party was criminalized in the 1850s way more than the communist party, let’s say, in the 1950s.
Nico: Yeah you say, “The basic slogan of the republican party in the presidential election of 1856,” which had Fremont as the republican nominee, I believe, “did indeed treat expression rights as first freedoms. The party thus famously stood for, quote,” and this is their slogan, “free speech, free press, free men, free labor, free territory, and Freemont, their nominee.
Akhil: Right. This is the Tippecanoe and Tyler too, make America great again, vote for change, I like IKE. That’s their slogan. And their slogan is – they’re punning, Freemont. They believe in free speech, free soil, free territory, free press. And all of these freedoms had come under attack by state and local governments. So, you need this second bill of rights, no state shall – But note how, again, it’s picking up some of the same words, no, shall, make, law, abridge. But now we’re limiting not just Congress and the federal government in the anti-Federalist tradition but states and localities in a reconstruction republican nationalist tradition.
Nico: So, those reconstruction amendments, I think, kind of did a lot of what the original Bill of Rights couldn’t do or wasn’t interpreted to do. I don’t want you to wiggle out of the question. I maybe didn’t ask it directly previously. Do you think, ultimately, it was a good idea to include the Bill of Rights.
Akhil: Absolutely. It’s central because I think the Federalists goofed at Philadelphia. They didn’t think about it very much. They just wanted to get out of town to go home to their wives and their families. I basically say they’re hot and homesick.
Nico: But does your –
Akhil: And then they switched. First of all –
Nico: But does your approval of the Bill of Rights, does your idea that that was a good idea rest on a invigorated ninth amendment that didn’t actually come into fruition?
Akhil: So, here’s why the Bill of Rights was a great idea at every level. Because substantively, they made a mistake and they came up with baloney excuses. You know, it’s bad and we have one. It’s like in Annie Hall, the food is horrible and such small portions. Bill of Rights is dangerous, oh, and we already have one. Not attainder, no ex post facto law, and no title of nobility, a jury trial. So, there arguments for not having a bill of rights were not good. A bill of rights, if it’s a bad idea, why do states have them? Are all the states stupid? No, it’s a good idea. So, they were substantively right to pivot.
They were also right to pivot – Suppose the bill of rights wasn’t such a good idea. But a lot of people think it is and you want to actually listen to them and you want to actually – It’s not so easy to govern American, 51-48, the Constitution barely gets ratified in a whole bunch of places. Bring people into the coalition. Bring them into the tent. Create a government of national unity. So, politically, it was smart because it’s now bringing the Anti-Federalists in and making them partners, making them co-authors of the project saying, “Hey, we’re listening to you. Even if your ideas aren’t brilliant, as long as they aren’t horrible, now you’re part of the project as well.”
And freedom of speech and of the press is ultimately, in part, about how we work together as a society. And so, that was brilliant. But they saved face. They said, “Actually we did have on genuinely realistic concern. The federal government is a government of enumerated powers. State governments aren’t. So, we don’t want to imply that the federal government has more power than it does by identifying certain rights that suggest there was power to begin with. And, by the way, apart from the federalism issue, we’re not sure we can itemize all the rights. There’s so many more than we might be able to specify.”
And that becomes the ninth amendment. It’s a brilliant idea. So, that’s all good. So, who’s bad? Judges have been bad, you know, from Bork on down in not taking the ninth amendment seriously. And for the longest time, not paying attention to the privileges or immunities clause in the 14th amendment. But –
Nico: I want to ask you –
Akhil: Hang on just one second. But in fact, even though they don’t say ninth amendment, they don’t say privileges and immunities, in fact, judges do, at their best, and have for a fair amount of time, recognized unenumerated rights. That’s Griswold v. Connecticut. Where, for example, does the Constitution’s text say that a criminal defendant has a right to take the stand? It doesn’t and yet courts enforce that. There are a robust tradition of unenumerated rights. We don’t call them by their proper names, which is ninth amendment and privileges and immunities. We call them by this unfortunate phrase, substantive due process.
Nico: That was going to be my next question. Have judges had the wrong part of the constitution doing the work that the ninth amendment or the privileges and immunity clause.
Nico: I believe the prove privileges and immunity clause has only been utilized to recognize right to use federal waterways.
Akhil: The high seas.
Nico: Yeah, it’s something ridiculous like that.
Akhil: See, people don’t take the text of the Constitution seriously, make all sorts of objections, but sometimes the objections cancel out. They say, “Oh, substantive due process is made up. So, the Constitution’s text doesn’t matter. And the ninth amendment ant he privileges and immunities clause are disregarded, so the Constitution’s text doesn’t matter.” I’m like someone’s saying, “Oh, I found two unmatched socks in my dryer. I’m going to put them together. That’s actually a pair.”
In fact, the Constitution’s text is being followed. It’s just not perfectly. We’re calling privileges and immunity and the ninth amendment substantive due process when we should call them ninth amendment and privileges and immunities.
But here’s one bigger point. That was descending into some sort of technical lawyering. Here’s the biggest point about judges. So, I think the Bill of Rights was a good idea. It was a good idea politically because Federalists, Anti-Federalists who have been at each other’s throats are actually working together. Wouldn’t it be great if parties actually worked together? And substantively, I like what it says. And I think the ninth amendment is a really good idea. Judges have not always been the heroes of this story.
Here’s the point. For the longest time judges didn’t enforce the First Amendment, actually. John Addams signs a law that makes it a crime to criticize John Addams and federal judges happily enforce that law. They throw people in prison for criticizing the government. States are making it a crime to engage in core political expression and judges don’t do anything. Even after the First Amendment is adopted, even after the 14th amendment is adopted, judges in American aren’t protecting core rights of expressions.
They’re making up, sometimes, rights of corporations or of property folk. It’s not until the 1930s, the first time the United States Supreme Court ever invalidates any law in the name of free expression is 1930s. It’s some state laws. The first time the United States Supreme Court strikes down a federal law, an act of Congress, as a violation of the First Amendment is 1965, Lamont v. Postmaster General. In the meantime, judges, unfortunately, are upholding abridgements of freedom of speech and the press. The three most dramatic, firs the sedition act that John Addams signed into law.
Later on, Woodrow Wilson is going to enforce a law against Eugene Victor Debs. He gives an anti-war speech, an anti-World War One speech. This is a guy who gets a million votes for president twice. And he’s sentenced to prison for 10 years for giving basically an anti-war speech. Not different than a George McGovern speech or a Bernie Sanders speech in later generations. And the Supreme Court unanimously puts him in prison for 10 years. Harding will eventually pardon him.
But the court isn’t enforcing robustly our expressive freedoms until very late in the game. Today they are. But they didn’t for the longest time. But don’t blame the Bill of Rights for that. Don’t blame the ninth amendment for that. Don’t blame the 14th amendment for that. Blame the judges because people like Bork are saying these are inkblots. They’re not inkblots. Actually read the damn thing, study it. People died for it. And take it seriously.
But the only way you’ll know all of that is if you know your history. Because the words themselves can be read in different ways and read out of the Constitution. But the history is very powerful and that’s why I write these books inspired by Bork. He said, “Oh, you’ve got to pay attention to originalism.” Originalism is not inherently conservative. Hugo Block was an originalist and he's the driving force of the Warren Court. The ninth amendment can actually protect unenumerated rights like Griswold v. Connecticut and the right of marital privacy.
Nico: It’s that precise argument that Frederick Douglas eventually came around to, right? That the Constitution is a promissory note, even if it isn’t as forced as the history or the text should suggest.
Akhil: Martin King in what we call the “I have a dream speech,” actually before he found that them, toward the end of his remarks about I have a dream, he actually – It was actually the promissory note speech. The Constitution has all these promises and they’re not being delivered.
Nico: The Debs scenario is astounding because another argument you make, which we probably should have gotten to earlier, is essentially that the whole American experiment presupposes freedom of expression, right.
Nico: Because self-government requires freedom of expression.
Akhil: Even if there weren’t a First Amendment, you’d have to have core political expression in order to have free and fair elections. Madison says that in the Virginia and Kentucky resolves. He says that even in 1794. He says the nature of a republican government, a government of the people, is that the people get to criticize the government and the government can’t basically, try to censor the people.
Nico: And that’s exactly what they did with Debs.
Akhil: That is. Note that word, republican. It’s the same word as people in Latin, but it’s also the same word as publish and a publication. What’s so interesting is we have freedom of the press before the First Amendment. The press are publishing the Constitution and the entire Constitution. The reason it’s short is so it can be in newspapers. And state constitutions were in newspapers. And the Declaration of Independence was designed to be in newspapers. So, you cannot have – this is really one of the biggest themes of my new book – the American Constitutional tradition is all about a culture of newspapers, in particular, and free expression more generally. It needs to have robust, uninhibited free expression.
Even when judges don’t always enforce it – For example, the sedition act, here’s how I end the book, it’s the last words of the book: “On the 14th anniversary of the death –” the book ends in 1840. “On July 4, 1840, the 14th anniversary of the death of Addams and Jefferson,” they both die on the same day, July 4, 1826, the 50th anniversary of the Declaration of Independence.
Remember Addams restricted freedom with the sedition act. Jefferson and Madison are trying to defend free expression. And judges are siding with Addams. They’re putting people in prison for criticizing the government. But on the “14th anniversary of Addams and Jefferson’s death, a law is passed saying the Sedition act was wrong. It was a mistake. With the benefit of hindsight, this was as unconstitutional a statue as any ever adopted. And we now hear by apologize for that statute and we pay back the fines that were imposed of people under the original sedition act.” And that’s what Congress does on July 4, 1840.
And the Supreme Court is not going to say that until New York Times v. Sullivan in the 1960s. But Congress actually apologized for it early on. Courts haven’t always understood this. But today, the good news is I would say freedom of expression is respected by liberals and conservatives.
Nico: You’ve argued a little bit too much in some cases.
Nico: You have certain claims being made under the guise of freedom of expression that probably shouldn’t.
Akhil: Yes. But I do think Citizens United was rightly decided, actually. And it wasn’t about campaign contributions, it was about ads.
Nico: I agree. If your whole argument is newspapers formed the bulk of our political conversation, was the driving force behind our First Amendment, Citizens United, if you look at corporations and speech, it had to do with a movie about a politician. That would have curtailed the Citizens United – or the – whatever the act was that was in place. It would textually prevented newspapers from endorsing candidates, from running ads for those candidates.
Akhil: Right. Because newspapers are corporations. And they get to endorse candidates and they get to cover candidates with favorable press coverage or unfavorable press coverage. You have to be able to take out an ad in newspapers saying “Vote for Amar. Vote for Nico.”
Now, here’s the tension. Many of the First Amendment rights are very egalitarian. Freedom of speech, everyone can speak. IN that wonderful Norman Rockwell painting, the guy’s a working-class guy. He’s wearing a leather jacket. His hands are the hands of a working person. But it’s a town meeting and people are going to get up. And people are going to listen to him even though he’s not wealthy. Maybe he’s going to talk about a pothole or a school board policy or something.
Assembly, each one of us has one body we can bring to the political gathering. Petition, each one of us has one signature we can add. Free exercise, each of us has one soul. So, a lot of the First Amendment is very egalitarian. Now, freedom of the press is a little different because back then not everyone had a printing press. A few wealthy people had a printing press. But the point is the New York Times is allowed to editorialize, allowed to endorse, allowed to cover things. And they’re a corporation. And Random House is a corporation. And thank God for them because they published a book of mine that I wrote in 2005. And Basic Books is a corporation and I’m so grateful to them for publishing “The Words that Made Us.”
And if you don’t like the ad, don’t listen to it. Here’s what I love about ads, they have no affect at all. Campaign contributions are stinky because politicians sometimes find ways of putting the money in their own pocket. They use it for private purposes. But an ad works, if it works, only if it persuades actual voters on election day, one person, one vote, corporations don’t vote on election day, to vote for Smith or vote for Jones or vote for Nico or vote for Akhil.
Nico: Well that’s, I think, one of the underlying assumptions with the criticisms behind these independent expenditures. It’s a skepticism of democracy. It presumes that people don’t have agency because there’s something that stands between the ad and the office and it’s the voter.
Akhil: Exactly. I couldn’t have put it better myself. I’m going to steal that from you. And that’s what makes – You say if people are sheep, they’re just too stupid to know their own risk. Well, then we can’t have elections.
Nico: Then the experiment has just failed, yeah.
Akhil: Yes. Our system presupposes voters are able to make up their minds on the basis of information. And we can’t allow the government to suppress that information flow. That’s what I believe.
Nico: Yes and I agree.
Akhil: So, I’m with the conservatives on Citizens United. I’m with the liberals in saying government shouldn’t be allowed to use its funds to shut down legal aid societies in various ways. I do think today, the First Amendment has a lot of friends on the court. Sometimes maybe they carry it a little bit too far when they treat campaign contributions, which are very different than ads, as if that’s pure speech because it’s not. It’s closer to a bribe. Or when they say government when it’s regulating commercial advertising, it should be severely restricted.
I think government should be able to say cigarette companies have to have mandatory warning labels. We have to be able to regulate misleading commercial advertising. Government shouldn’t be trusted to regulate misleading political ads because I just don’t trust the government to do that. But they have to be able to basically say, put up billboards saying, “Don’t smoke,” and prohibit billboards saying, “Do smoke.”
Here’s why, because the government could prohibit tobacco all together. It can’t prohibit elections. But it could prohibit the buying and selling of alcohol or tobacco or gambling.
Nico: But there should be some sort of health or safety net. I think you and I would slightly disagree with this. And I don’t want to get too far afield. Let’s say, for example, back six, seven years ago when the city of New York didn’t like Uber coming in. They thought these were unregulated, that they wouldn’t be as safe as taxi drivers. And they sought to shut it down. Uber, in response, put out a big advertising campaign, mobilized all its users who feel in love with the products to push back against it.
I worry about situations – or you have the whole discussion around cryptocurrency and the regulation of that. And you have some of the big companies like Coin Base, for example, petitioning the government for redress of grievance, organizing things. I worry about limiting commercial speech too much. I think there’s a stronger argument when there’s a health nexus, perhaps, on tobacco advertisements. But I worry about the slippery slope there, especially –
Akhil: And I do to. I’m not saying that commercial advertising has no protection whatsoever.
Nico: But you wouldn’t give it strict scrutiny?
Akhil: Exactly. The point is the following, it’s just very simple: We have to regulate the commercial domain differently than the political domain when it comes to free speech discourse. Here’s why, at a certain point, government has to be able to say of a company, “This is just fraud. You’re making false representations in the name of consumer protection. We prohibit you from declaring that cigarettes are safe.” That’s just a health and safety consumer protection.
So, we have to actually be able to regulate what advertisers can say about their products. They can’t lie about their products.
Nico: Isn’t that already illegal, though?
Akhil: But here’s the point, politicians get to puff and lie all the time. What I’m saying is the Federal Election Commission, actually, shouldn’t be allowed to regulate political puffery and misstatements to the same extent that the Food and Drug Administration is allowed or the Consumer Protection Bureau is allowed, the Federal Trade Commission, is allowed to regulate misleading commercial advertising. It can’t be governed by the same set of First Amendment rules.
So, there’s going to have be some difference. And here are two reasons why. The biggest is I don’t trust government to tell me what’s politically true and not true.
Nico: Yeah, you need to establish a sort of ministry of truth in order to do that.
Akhil: Exactly. But we do have a ministry of truth when it comes to advertising drugs or toys. You can’t say this toy is safe if it’s not safe. You can’t say, for example, this is going to help you lose weight if it’s not going to help you lose weight. So, we do, in fact, today, and have to, regulate them differently. So, I worry that if commercial speech is treated identically with political speech, either we’re going to have too much regulation of political speech, which would be bad, or insufficient regulation of false commercial claims, which would also be bad.
So, we’re going to need to have some kind of distinction between political speech. Now, you might say, “Well, Amar, where does that come from, that distinction between commercial and political speech?” Here’s one way it comes from, because the word speech doesn’t distinguish, true. So, what kinds of speech? I say political speech is core because even if there weren’t a first amendment, you’d have to protect that because it’s about free and fair elections. What about religious speech? Oh, you have to protect that because of the Free Exercise clause and the connection between religious discourse and political discourse.
Whom did we invoke earlier? We invoked Martin King. Martin King was a political actor. But if you had asked him to describe himself, he never would have said, “I’m a civil rights leader,” which is how we describe him today. He would have said, “I’m a preacher of the Gospel of Jesus Christ, first, last, and always. Everything that I’ve ever done comes out of that.” The abolitionists were a religious left. We’ve had religious right, we’ve had religious left. So, by the time of the 1860s, people understand, oh, we’ve got to protect religious speech in order to protect political speech. They’re connected.
What about artistic speech? Well, I would say that’s an unenumerated right, even if you didn’t have the First Amendment. It’s part of American identity. Commercial speech is different. It’s not quite artistic self-expression. It’s not quite religious about free exercise and people’s souls. It’s not quite political speech, which is how we govern ourselves.
But where, textually, would I say political speech has extra special protection? Because the very word speech, the very phrase freedom of speech, historically – Robert Bork told me to learn history, comes from the freedom of speech and debate in parliament. It goes back to an earlier document in 1689, 100 years before Madison exactly, the English Bill of Rights of 1689. And it talks about the freedom of speech and debate in parliament. What is parliament? From the French parley, to speak is a place for a parley, for a certain kind of discourse. But it’s not a place to sell Marlboro cigarettes or liquor. It’s a place for political discourse.
So, the freedom of speech, textually and historically, was always connected with political discourse and not commercial buying and selling of things because parliament is not a place where you’re buying and selling Marlboro cigarettes. It is a place where there’s political discourse.
Nico: It’s where you’re parlaying.
Akhil: Yes, parley.
Nico: Which comes from the French word, as you discuss in some of your articles here. But is the word “the” the operative word in that sense? We often forget, we think Congress shall null respecting the freedom of speech. We think –
Akhil: Abridging the freedom of speech.
Nico: Abridging the freedom of speech. We often think it’s so clear. All speech is free. Congress shall make no law. As Jeffery Stone argues, “the” suggests a concept of freedom of speech that needs to be defined.
Akhil: I agree completely and Alexander Meiklejohn thought that and Harry Calvin thought that and Owen Fiss thought that and I think that. Congress can pass laws abridging speech but not a thing called the freedom of speech, which is nearly an absolute. And what is the freedom of speech in parliament? Here’s what it is as I understand it, if it’s in order for someone to get up and say I support this bill, a $3.5 trillion package or whatever, or Obamacare. If one person can get up and say I support this bill, someone else has to be able to get up and say I oppose this bill. What it is is the near absolute freedom of political expression, political opinion. That’s nearly absolute.
Rockwell captures it beautifully. What’s his image of Freedom of Speech. Remember it’s four freedoms. He has freedom of worship, and freedom from want, freedom from fear. His image, and maybe you can even put it up on your show notes because it’s so powerful. Freedom of Speech is a guy, he’s from New Hampshire or Massachusetts. He’s wearing a leather jacket. Maybe he’s a mechanic. Maybe he’s a farmer, a tradesman of certain sorts. His hands are very much the hands of a working-class person. He’s got a rolled-up piece of paper in his pocket because he’s not used to public speaking. But he's standing up and people are going to listen to him attentively because that’s what the freedom of speech is in a town meeting.
People get to get up and express their political views. It’s a system of political discourse. And by the way, it’s not just the freedom to speak, it’s the freedom of speech. So, I have the right as a listener to hear someone else.
Nico: That’s the Frederick Douglas argument.
Akhil: I even may have a duty. I believe as a citizen I may have a right to vote but a duty to vote, to do jury service, to pay my taxes. I don’t think I can do that if I read everyday Fox, and the Wall Street Journal, as well as the New York Times and MSNBC because I’m supposed to be listening to all of my fellow citizens. It’s not just the freedom of speech, it’s the freedom to speak, it’s the freedom of speech, freedom to listen. That’s what so impressive about the First Amendment is it came about because the Federalists listened to the Anti-Federalists and made common cause. So, it’s so poetic, you see.
It talks the right of the people to assemble. And the Second Amendment is about the right of the people to keep and bear arms and the right of the people to be secure against unreasonable searches and seizures. And the fourth amendment and the ninth and the 10th uses the phrase “the people” also. Five references to “the people.” Where is it coming from? From the preambles “We the People.” It is coming out of a process in which we the people are deliberating with each and talking to each other, listening to each other, working with each other. It’s a system. And wow, it’s extraordinary.
Nico: I’m tempted to end there. But if you have time for one more question in the context of some of this. It’s maybe a little bit further afield. But something I’ve always kind of wondered, I don’t think Americans are educated a lot about the Articles of Confederation. I know very little about the Articles of Confederation. In talking about freedom of speech in the United States, whenever someone brings a free speech claim now, they bring it under the First Amendment, the federal Constitution. It’s very rare that they’re ever brought under state constitutions. Although, I believe New Jersey has a very strong protection, so it’s sometimes brought there.
Akhil: The Prinear case, yes.
Nico: Yeah. Do you believe that there was any redeeming qualities of the Articles of Confederation, in this context or other context.
Nico: Especially when you see today, the progressive, and I mean this temporarily, not politically, concentration of power within the federal government. Which I don’t believe, even when they constructed our current constitution they envisioned so much power in the executive, for example. But was it necessary to get rid of it because it was not a good confederation or constitution for a new nation? Because you almost need a strong federal central government in constructing a new nation. Might it have been a better government for something that was more strongly established or had been established longer?
Akhil: We needed to get rid of it and it had some admirable features. I’m going to read you, with permission, about a page from the book.
Nico: Of course, please.
Akhil: My book, there’s a whole chapter on the Articles of Confederation and why they collapsed and they had to because they weren’t sufficient to protect America from foreign threats. The Constitution is basically designed by and for George Washington so he can protect us against the Brits, the French, and the Spanish because they could come back. We beat them once, but they could come back. The Articles weren’t strong enough to basically protect America against foreign threats. So, that’s why the preamble talks about common defense so powerfully. So, the articles weren’t working. In a nutshell, you need a Navy, you need an Army. For that, you need taxes. And you need to regulate commerce. And the Articles couldn’t do that very well.
That said, the Articles had some brilliant features. And I’m going to read you three of them. One about the Bill of Rights that the Articles of Confederation came up with in a certain way, one about anti-slavery provisions that the Articles of Confederation generated, and one about treating people in the west with respect. The Brits didn’t do that to Americans, but the Americans are going to do that on the coast, they’re going to treat with respect their western cousins. So, here’s the passage:
“So, on July 13, 1787, as the Philadelphia framers are coming up with a new constitution, the Confederation Congress is coming up with a thing called the Northwest Ordinance to regulate the west. Western settlers were offered a basic bill of rights as articles of compact between the original states and the people –” Let me back up. “Western settlers were offered a basic bill of rights, ‘as articles of compact’ between the original states and the people of said territories. It would be forever unalterable unless by common consent.”
So, when the Constitution doesn’t have a bill of rights and yet, the Northwest Ordinance did. It’s not just the states had it. The Northwest Ordinance had one. “This rights catalogue expressly included the free exercise of religion, trial by jury, habeas corpus, due process, a common law judicial system, just compensation for takings of private property, a ban on immoderate fines and improper punishments, broad access to bail, protections against contractual impairment, a promise of a properly apportioned local assembly, and more.
“The ordinance also embraced egalitarian inheritance rules, restricting old world crime in geniture, and provided for a system of public education.” Wow, that’s impressive. So, the ordinance also said this – and then I talked about a whole bunch of impressive thing that it says. “There shall be neither slavery nor involuntary servitude in the said territory. Otherwise a punishment of crimes or of the party shall be duly convicted.” So, they’re prohibiting slavery in the Northwest.
“Some 30 years later, a lad who would grow up to be history’s most famous Northwesterner would move with his family into this region. The family was drawn to this region, in part, by the free soil vision of the ordinance. When this lad, Abraham Lincoln, became a man, he would spearhead an amendment to the US Constitution that would take the ordinances anti-slavery words virtually verbatim and make them the supreme law of the land for all America, not just for lands north and west of Ohio.”
So, the Northwest Ordinance came from the Articles of Confederation Congress and it was a proto 13th amendment, abolishing slavery. Wow. Okay, and here’s how I ended. So, “It had a bill of rights in the Northwest Ordinance. It prohibited slavery for the Northwest,” that’s impressive. “And, finally, it treated the newer Americans equally with the older Americans.”
Here’s how I end this. I’m going to take us back to Chapter 1, that very first passage that I read before. “In proclaiming George III king from the courthouse balcony in the waning hours of 1760,” because that’s where I begin, with American hailing George III, “the English born and royally appointed governor, Frances Bernard, aptly enough faced east toward London and toward the past. Most of his American born audience was unaware of their poetic portent of their stance to face west toward Lexington and Concord, toward the future, toward the vast continent that stretched out before them, and toward unborn states that would one day join the first 13 as full and equal citizens.
“In the 1760s and early 1770s, arrogant Londoners had treated their western cousins and the colonies like children. The Confederation Congress’ single most impressive accomplishment is members renounced all pretention to lord over their own western cousins.” So, that’s pretty impressive. It failed for certain reasons. It had to fail. But it still did some pretty impressive things.
Nico: I think that’s kind of a poetic note to end on here, you know, looking back towards those early passages that we’ve read. Professor, I’m sorry for keeping you for so long. I could talk to you all day. I have more questions.
Akhil: Let’s do another in a few months.
Nico: Yeah, I will reach back out to you and we can hopefully continue that conversation.
Akhil: And we’re going to rebroadcast this one on our podcast with your permission.
Nico: Yes, absolutely. I wanted to ask you about the territories. You had the territories and you talk about the plenary powers and giving them bill of rights. But it still was taxation without representation, is that right?
Akhil: Oh, I skipped that passage. If you want it, they actually provided for the earliest possible admission of new states, as soon as these territories had sufficient minimal population, they were going to be admitted as new states on equal footing. I jumped over some of that. Precisely so that this was going to be a very temporary period. And then they were going to be represented just as everyone else.
Nico: Except residents of Washington, DC.
Akhil: That’s yet another story for another day.
Nico: Yeah. I’m in Virginia. I’m actually in the part of Virginia that was reincorporated into Virginia. So, I’m partial to believing that portion of DC that’s most logically in Maryland should be brought back to Maryland.
Nico: Yeah, retroceded.
Akhil: Right. Because they retroceded the Virginia part. They could retroceded the Maryland part except for maybe 10 square blocks or something.
Nico: Yeah, I think that’s the compromise to make. But we can’t compromise in Congress these days.
Akhil: That’s what the Bill of Rights, you see, and the First Amendment, I said forget what the words say. Think about at a meta level. At a meta level, what it’s all about is a compromise between Federalists and Anti-Federalists. The Anti-Federalists get their amendment. The Federalists save face, they add a ninth amendment. The Anti-Federalists are brought on board. The Federalists sort of pivot and say actually, you have a point. Maybe we made a mistake. Wow, that’s actually, the First Amendment, is the product of itself, free speech and free press, and a process of mutual accommodation, listening to each other.
Nico: Well, I appreciate you listening to me for this last hour and a half.
Akhil: And vice versa.
Nico: I think our listeners have really enjoyed hearing from you, as well. Professor, thanks for coming on the show.
Nico: That was Sterling Professor of Law and Political Science at Yale University, Akhil Reed Amar. His new book is called “The Words that Made Us: America’s Constitutional Conversation, 1760 -1840.” And his excellent podcast, which I encourage you all to listen to, subscribe to, and rate is titled “Amarica’s Constitution.” To learn more about Prof. Amar’s work, you can visit akhilamar.com.
This podcast was hosted, produced, and recorded by me, Nico Perrino, and edited by Erin Reese. You can learn more about “So To Speak,” at Twitter at twitter.com/freespeechtalk or on Facebook at facebook.com/sotospeakpodcast. We take feedback at SoToSpeak@thefire.org. If you enjoyed this episode, please rate, review. That’s what helps us bring new listeners to the show. Until next time, again, I thank you all for listening.