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By James Ostrowski March 22, 1995

Tonight I will attempt to provide you with a panoramic history of the first amendment. Since I have about 400 years to cover, I will not stop long in any one place. Along the way, I hope to at least show that the history of the first amendment is inextricably linked with the whole history of the nation and that the opposing sides in the struggle for free speech have been the same figures who have fought one another, both literally and figuratively, over the central political issues America has faced.

The First Amendment states:

“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.” As they pertain to the issue of free speech, we may narrow the words down to the following: “Congress shall make no law abridging the freedom of speech or of the press.”

The First Amendment was ratified in 1791 as part of the Bill of Rights. Its history cannot be understood apart from the history of the Bill of Rights. It is now virtually forgotten that for its first twelve years, this country was ruled by a Congress of the States, an arrangement that was formalized by the ratification of the Articles of Confederation in 1781. While operating under this system–which historians now assure us was unworkable–all the United States did was defeat the most powerful nation on earth in a major land war which lasted eight years.

There is no time here to present a complete history of the events that led up to the replacement of the Articles of Confederation by the Constitution. Suffice it say that certain influential Federalist thinkers believed that the nation needed a stronger and more centralized government. They disingenuously arranged for a convention to amend the Articles of Confederation. What they actually did, however, and what they probably had in mind all along, was to replace the Articles entirely with a completely new constitution.

When they presented this new constitution to the public, however, in 1787, contrary to the popular image of universal approval, the document engendered great opposition from what we now call the anti-Federalists. In addition to their belief that life under the Articles really wasn’t all that bad, the Anti- Federalists’ main objection was that the new constitution lacked sufficient guarantees of individual rights. What would prevent this powerful new government from simply turning into a tyranny, an event which Benjamin Franklin predicted on the floor of the Constitutional Convention?

A bitter struggle ensued between the Federalists and anti- Federalists in various state conventions called to consider the new Constitution. The Constitution was barely ratified in several states. The vote in New York was 30 to 27 in favor. Many other states insisted that the price of their ratification was that a Bill of Rights be added. It was at that time that Alexander Hamilton made the now-quaint argument that a Bill of Rights was not needed since the Constitution did not give the government the power to violate individual rights. It is good that this argument was rejected because the Supreme Court has virtually never ruled that an act of government was unconstitutionally beyond the scope of the powers delegated to it by the Constitution.

In any event, the Anti-Federalists rejected Hamilton’s argument and the Bill of Rights became the price the Federalists had to pay to get the strong central government they wanted. The first eight of the ten amendments constituting the Bill of Rights define certain individual rights that the federal government may not violate. The first protects freedom of religion and freedom of speech. The second protects the right to bear arms. The third protects us against having troops quartered in our homes. The fourth protects us from unreasonable searches and seizures. The fifth guarantees due process of law. The sixth protects the right to a fair trial in criminal cases. The seventh protects the right to trial by jury in civil cases. The eighth forbids excessive bail and cruel punishment.

The ninth and tenth amendments are in a different category. The Ninth Amendment states:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The purpose of the Ninth Amendment was to respond to the second argument Alexander Hamilton made against attaching a bill of rights to the Constitution. Hamilton argued that the expression of certain rights such as free speech and the right to bear arms could, by longstanding rules of legal interpretation, be construed to deny other possible rights. The Ninth Amendment was added to the Bill of Rights to make clear that rights other than those specified were indeed retained by the people.

The Tenth Amendment states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment makes clear that a right or power need not be expressly granted to the States or the people by the Constitution. Rather, the States and the people are irrebuttably presumed to have such a power, unless that power is expressly taken from them by the Constitution.

The ninth and tenth amendments are the forgotten amendments. I know of no case where either was used to support the case for freedom of speech or of the press. The truth is that these amendments are out of favor in those circles that select the federal judges who construe the Constitution.

The Bill of Rights is best understood as the enactment of a philosophy of individual natural rights that dominated American political thought in the Eighteenth Century. Natural rights philosophy emerged in the Seventeenth Century as an explanation of the proper function of government that was in sharp contrast to the philosophy that had prevailed in the Middle Ages. During that time, Europe was ruled by kings who had acquired power basically by invading countries, defeating the natives in battle, and ruling them by force of arms. Kings soon found propaganda useful in subduing their subjects and there was no shortage of intellectuals who would curry favor with the king by announcing in obscure treatises that kings ruled by divine right and their authority was absolute.

Along about the Seventeenth Century, however, certain authors like John Locke offered an alternative explanation of the basis for political authority. Locke and others less famous argued that individuals possessed certain rights by virtue of their nature as rational human beings. They had the rights to life, liberty and property, for example. To secure these rights, governments were established, whose powers were delegated to them by the people for the limited purposes of maintaining order and protecting natural rights. While governments were to protect rights, these philosophers emphasized that the rights belonged to individuals by nature, and were not granted by the government.

The philosophy of natural rights was a powerful ideological weapon against kings and tyrants during the Seventeenth and Eighteenth Centuries in England. During that time King Charles I lost his head and later kings lost much of their authority to an elected parliament.

Throughout the Eighteenth Century, radical political tracts published in England made their way over to America and the highly literate colonists devoured them and passed them along to their neighbors. Historians now say that the two most influential writers of that period were the Englishmen John Trenchard and Thomas Gordon. 138 of their essays were collected and published in the colonies as Cato’s Letters, after the Roman statesman who committed suicide over the death of the Roman Republic. Clinton Rossiter states:

“No one can spend any time in the newspapers, library inventories, and pamphlets of colonial America without realizing that Cato’s Letters rather than Locke’s Civil Government was the most popular, quotable, esteemed source of political ideas in the colonial period.”

In four of Cato’s Letters, Trenchard and Gordon set forth their views of freedom of speech. As Jonathan Emord writes:

“Trenchard and Gordon believed free speech ‘essential to free Government.” They perceived a property in one’s speech and also understood the rights of property and speech to ‘always go together.'”

Trenchard and Gordon identified three central values that the right of free speech is designed to advance. First, freedom of speech allows people to criticize the government and make it more responsive to popular will. Second, freedom of speech is necessary for the pursuit of truth in science and art. Third, freedom of speech is essential for individual self-fulfillment and expression.

By the time Thomas Jefferson wrote to James Madison in 1787, it was accepted by the leading political thinkers in America that freedom of speech and of the press were natural rights belonging to each citizen. Jefferson, away in France, chastised his protege Madison for failing to include a bill of rights in the Constitution which should include, among others provisions, “freedom of the press.” Madison, then a congressman, drafted a bill of rights, drawing heavily upon the Virginia Declaration of Rights that was the work primarily of anti-Federalist George Mason. Madison’s First Amendment, modified in various ways of no great importance to us now, became the law of the land in 1791.

Having been ratified, the first amendment seemed to attract little attention for the next 126 years. The amendment did not stop the Federalists from enacting the Alien and Sedition laws in 1798 which outlawed speech critical of the government. Thus, in ten short years, the wily Federalists went from arguing that no first amendment was necessary because the federal government was not delegated any power over the press, to arguing that the federal government could regulate political speech even after the passage of the first amendment.

Jefferson, typically, saw the contradiction. He wrote to the naive Madison, who had seen no need for a first amendment:

“Among other enormities, [the Sedition act] undertakes to make certain matters criminal tho’ one of the amendments to the Constitution has expressly taken printing presses, etc., out of their coercion.”

No one challenged the Sedition law in the Supreme Courts, but Jefferson, the ever-vigilant libertarian, took action which was to have consequences far beyond the narrow issue of free speech. He authored–anonymously–the Kentucky Resolution. Jefferson wrote:

[T]he several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect.”

Thus, Jefferson invented the controversial theory of state nullification of unconstitutional federal laws in order to deal with the free speech crisis caused by passage of the Sedition act.

Hannis Taylor called Jefferson’s compact doctrine the “Pandora’s Box” out of which flew the “closely related doctrines of nullification and secession,” which he notes, with less than perfect foresight, “were extinguished once and forever by the Civil War.” Jefferson’s biographer, Willard Sterne Randall agrees:

“[Jefferson] forthrightly held that where the national government exercised powers not specifically delegated to it, each state ‘has an equal right to judge . . . the mode and measure of redress.’ . . . He was, he assured Madison, ‘confident in the good sense of the American people,’ but if they did not rally round ‘the true principles of our federal compact,’ he was ‘determined . . . to sever [Virginia] from that union we so much value rather than give up the rights of self-government . . . in which alone we see liberty, safety and happiness.'”

Sixty-three years later, a man named Lincoln would condemn the doctrine first forged by Jefferson as “an insidious debauching of the public mind.” Much of American history can be seen as an on- going debate between Jefferson and Lincoln and this is true on the issue of free speech. In 1839, Alexis de Tocqueville had written:

Among the twelve million people living in the United States, there is not one single man who has dared to suggest restricting the freedom of the press.”
Just twenty-five years later, Lincoln, true to his Federalist and Hamiltonian roots, felt no compunction whatever about jailing during the Civil War a total of thirteen thousand civilians who had expressed pro-Southern views. According to historian Arthur Ekirch, this was often done “without any sort of trial or after only cursory hearings before a military tribunal.”

Another twist on the Lincoln-Jefferson dichotomy is their respective positions on habeas corpus. Jefferson complained that the “eternal and unremitting force of the habeas corpus laws” was not protected in the new Constitution. Lincoln in contrast, illegally suspended habeas corpus during the Civil War and simply ignored an order by the Chief Judge of the Supreme Court to release a political prisoner.

I think it is clear then that once again the first amendment failed to protect free speech in time of crisis. The next time free speech was challenged during wartime was World War I. During that war, run by a liberal Democratic president, Congress passed the Espionage Act of 1917, which forbade among other things, promoting insubordination or refusal of duty among the armed forces. Three persons convicted under this act appealed their convictions to the Supreme Court, arguing that their activities were privileged and shielded from prosecution by the first amendment. In these cases, the illegal behavior consisted of publishing a pamphlet opposing the draft, publishing a pamphlet sympathetic to Germany, and speaking out in favor of socialism.

Had the three defendants, including Eugene V. Debs, been judged by a Supreme Court sympathetic to the natural human right of free speech, their convictions would certainly have been overturned. History, however, played a cruel trick on them. The judge assigned to write the opinions of the court in all three cases was thoroughly Hamiltonian and Federalist and was the most vociferous critic of natural rights theory America has ever seen– Oliver Wendell Holmes.

Holmes had nothing but scorn for the man who first insisted that a free speech amendment be added to the Constitution: Thomas Jefferson. On the one hundredth anniversary of John Marshall taking the bench as chief judge of the Supreme Court, 1901, Holmes made reference to Jefferson’s political enemy and cousin. He spoke of:

“the fortunate circumstance that the appointment of Chief Justice fell to John Adams, instead of to Jefferson a month later, and so gave it to a Federalist and loose constructionist to start the working of the Constitution.”

Then he obliquely noted that:

“Time has been on Marshall’s side, and the theory which Hamilton argued, and [Marshall] decided, and Webster spoke, and Grant fought, and Lincoln died, is now our corner-stone.”

I say “obliquely” because Holmes never states just what that “theory” is that is now our corner-stone. Whatever that “corner- stone” is, however, it is safe to assume that Holmes thought Jefferson’s philosophy was now buried under it.

Is this the man you would want judging your first amendment case, with ten years in prison at stake? Let me tell you more. In a famous essay entitled “Natural Law,” Holmes tells us in stark terms just what he thinks of the natural rights philosophy that underlies the first amendment:

“There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.”

Rejecting natural law, Holmes gives us his own theory of law: it is “the majority will of that nation that could lick all others,” a legal philosophy that is not surprising coming from an officer in the Union army in the Civil War.

What does this odd man do with the three defendants who claim to have been speaking freely? He creates out of thin air his own law of free speech:

“We admit that in many places and in ordinary times the defendants would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. [The] question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of degree and proximity. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Based on this clear and present danger doctrine, the court upheld all three convictions.

Holmes was finally put in his place by a contemporary who was even more cynical, more sarcastic and more brilliant: H.L. Mencken. In a review of a collection of Holmes’ dissents, Mencken wrote:

“In the three Espionage Act cases, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside by any jury that has been sufficiently inflamed by a district attorney itching for higher office. . . . I find it hard to reconcile such notions with any plausible concept of liberalism. . . . If I do not misread his plain words, he was actually no more than an advocate of lawmakers. There, indeed, is the clue to his whole jurisprudence. He believed that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly passed the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including, apparently, even the Bill of Rights. . . . Like any other man, of course, a judge sometimes permits himself the luxury of inconsistency. Mr. Justice Holmes, it seems to me, did so in the Abrams case, in which his dissenting opinion was clearly at variance with the prevailing opinion in the Debs case, written by him. But I think it is quite fair to say that his fundamental attitude was precisely as I have stated it.”

Ironically, and largely by accident as Mencken suggests, Holmes’ clear and present danger doctrine, originally used to provide the government with the power to regulate political speech during wartime, became the basis for later case law which offers much protection for political speech that urges unpopular or even illegal acts, except where such advocacy “is directed to inciting imminent lawless action and is likely to incite or produce such action.”

The present-day formulation of the clear and present danger doctrine has resulted in a substantial amount of protection for free speech. However, as the three World War I cases demonstrate, what constitutes a “clear and present danger” will differ from judge to judge, often because of the political and philosophical views of the judge. Judges who are hostile to the philosophical basis of the right of free speech and to the values that right promotes, could at any time shift first amendment doctrine back to the days when speaking out against the draft could land one in jail for ten years. That is why it is important to understand the history and philosophy of the first amendment.

It is important to understand that the first amendment is historically and philosophically a Jeffersonian creation, an expression of the natural rights of the individual against the state; that as such it is in continual danger of being abrogated and interpreted out of existence by the anti-Jeffersonians whose uncanny knack for achieving political power is the direct result of their love of that power: the Hamiltons, the Marshalls, the Lincolns, the Holmes’s, the Nixon’s, the Renquists, and Robert Borks of this world.

In the end, as Learned Hand said,

“Liberty lies in the hearts of men and women; when it dies there, no constitution or court can save it.”

Thus, we may wish to take Thomas Jefferson’s oath: “I have sworn on the altar of God, eternal hostility against every form of tyranny over the mind of man.”

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