>>> Item number 343, dated 93/11/30 17:43:47 -- ALL
Date: Tue, 30 Nov 1993 17:43:47 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: Original Intent & First Amendment Discussion seems a bit slow in H-LAW. I will put forward one of
my theses that I think has been overlooked. What follows is the short formulation, not including all evidence or equally important surrounding arguments.
The following is NNIFMA (no necessary implications for modern adjudication).
Thesis: First Amendment Speech and Provision was absolutely rigid by original intent, higher than modern standards (indeed unreasonable by modern standards) and not coincident with eighteenth century perceptions of the proper extent of the right to publish or speak freely.
Historiography: The literature is still dominated by Levy's *Legacy of Suppression* which was then inadequately and incompletely revised into *Emergence of a Free Press*. The argument there was that no thinker advocated any rigid right to free speech and press prior to 1798 (in response to the Alien and Sedition Acts). He explicitly maintained in both books that there was no evidence about how extensive the drafters of the First Amendment were thinking.
Evidence: The strongest piece of new evidence, although not the strongest argument, involves the unofficial reporter who sat close to the Speaker of the House of Representatives. Near the end of the first session of the First Congress, after the drafting of the First Amendment (then third) but before submission of the amendment to the states, a representative accused the reporter of misreporting debates and thus bringing representatives into disrepute. Under the original Constitution with the First Amendment, of course, the reporter could have been punished. (Art. I Section 6; I will defend if need be.) But the representative did not request punishment or censorship (prior restraint). He suggested that the reporter's physical position be in accord with his status: since he was unofficial, he should sit in the gallery with the rest of the public so that his reports would not receive unwarranted prestige by the gratuitous physical placement. Two representatives immediately criticized this suggestion (which today would only be a remote chilling effect) as against the freedom of the press. The motion was withdrawn, and a sequel in the second session of the First Congress verifies the impression (the reporter went into the gallery of his own accord and was made to resume his position lest it be thought that the House was infringing the liberty of the press).
(1) Has this incident become widely known among legal historians and used in class?
(2) Do legal historians concur in my analysis that the indication here (that can be supported by other arguments and evidence, but that would seem supportable on the basis of this alone) is that the First Amendment speech and press protection as viewed by the House was rigid and absolute?
Invitation: attack part or whole, query social or legal implications, particularly implications concerning nature of federalism, federal government, state constitutional rights, 14th Amendment incorporation; ask for supporting arguments, etc.
Documentation: available in Palmer, "Liberties" in Nelson and Palmer, *Liberty and Community*
Robert C. Palmer HISTW@JETSON.UH.EDU History and Law For a more interesting H-Law
University of Houston
>>> Item number 351, dated 93/12/04 07:58:32 -- ALL
Date: Sat, 4 Dec 1993 07:58:32 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: email@example.com Subject: Re: First Amendment: replication
as it appears to me, you have quite a strong thesis statement (defining the original intent of the notion of "freedom of the press") without a substantial amount of additional evidence (one incident with one reporter in a "closed system," i.e. congress was trying to deal with a problem of its own, not one from outside).
how does this additional piece of evidence strengthen/weaken the thesis of the chestnut work which you cited in your original post? --
>>> Item number 353, dated 93/12/04 20:12:19 -- ALL
Date: Sat, 4 Dec 1993 20:12:19 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: Re: First Amendment: replication
The Pasker query "how does this additional piece of evidence strengthen/weaken the thesis of the chestnut work which you cited in your original post?" actually raises two questions.
The first is the character of the original piece. Since I am primarily an English legal historian, I may be dreadfully ignorant of the literature on the First Amendment and the revolutionary/early national period, but I don t think so. On the other hand, Katz likewise considered, in his _Choice_ review, that there was nothing new here.
Every piece I read, from monographs to articles, treated the Bill of Rights and the First Amendment as mirroring social values about rights instead of exceptions to powers to preserve a federal system. Thus they either exalted the degree of protection under state constitutions to maintain a strong First Amendment, or enunciated a low First Amendment protection to make the protection accord with the social values maintained by state constitutions.
The piece did several new things. (1) It used new standards to ask questions about constitutional meaning, arriving at a new federalism definition for Art. I sections 9 and 10 that puts federalism as an equal or greater motivation in the Constitution as balance of powers. (2) It disconnected the degree of protection in the Bill of Rights, particularly the First Amendment, from social perceptions about appropriate levels of rights protections. (3) It argued an absolute First Amendment speech and press protection that far exceeds today's standards and would not take into account the social needs that modern constitutional analysis demands. (4) It shows the way in which original intent analysis will at times produce results that neither conservatives nor liberals would be willing to advocate, but that are only useful for measuring change historically.
In particular, the subtext rejects the thesis of Wood's _Creation_ book. Wood there used the same criteria for evaluating the federal constitution as he used for state constitutions, without taking into accounht the way in which the different institutional context dictated different standards for evaluation. He thus undervalued the degree to which sociaty (sorry, society) retained republican values (as in: it is now clear that although republicanism at state level would dictate a weak executive, at the central level republicanism would dictate a strong executive and the stronger judiciary to keep the majoritarian house in line so that it did not and would not undermine the state republican government: not a weaker republicanism, but different institutional considerations). The central thesis of Wood's work is thus defective, because the U.S. Constitution was not the product of evolutionary constitutional thought solely, but more of a different institutional context of that particular constitution.
The reporter incident, to answer the direct question, strengthens the analysis because the First Amendment of course was directed precisely against what Congress could do, and Congress itself wrote the First Amendment. What the authoring Congress felt about the meaning of liberty of the press is thus an interesting consideration, and that they felt it would cover a matter that we today would automatically exclude (for two reasons: only a remote chilling effect and part of the inherent power of any body [an assumption that deserves to be challenged at the federal level]) fortifies the analysis in the piece based on Art. I section 9 and the rest of the legislative history of the First Amendment. Admittedly, the reporter incident is only confirmatory of that analysis and not the basis of it. It does provide the initial plausibility of a First Amendment that would coincide with its very stringent language: "Congress shall make no law. . . abridging the freedom of speech, or of the press . . . " Since the federal government had no independent police power to qualify that right, it was as rigid, absolute, and inconsiderate of social need as it sounds.
As interesting in this regard is that the Senate met behind closed doors, but no one was worried about the senators: they were appointed by and were expected to be protective of the states. People were worried about the directly elected House, and the House met openly and was worried about how the public perceived it. Even their concerns about the press were not predicated about appropriate levels of rights for individuals, but the demands of a federal system in which two levels of government derived powers from the people and acted directly on the people.
Robert C. Palmer HISTW@jetson.uh.edu
History and Law
University of Houston