The Framers' First Amendment: Originalist Citations in U.S. Supreme Court Freedom of Expression Opinions

Article excerpt

This article examines the use of originalist citations by Supreme Court justices in First Amendment freedom of expression opinions. It quantitatively examines when justices use originalist citations and qualitatively explores the content of the justices' citations to determine how the justices are describing the original meaning of the First Amendment. The article concludes that justices uncritically relied on the citations as authoritative; that although it is identified with conservatism and judicial constraint, originalism was frequently used by liberal justices to expand constitutional protections; and that the "blank slate" of originalism makes it a useful tool for originalists and non-originalists alike.

In a series of cases examining the newsgathering rights of the press, several U.S. Supreme Court justices wrote opinions citing James Madison's famous statement: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both."1 In its original context, however, the quote had nothing to do with newsgathering, the rights of the press, or even the First Amendment. The quote originated in an 1822 letter applauding the Kentucky legislature for providing for a public educational system.2

The justices' reliance on Madison's quote is, of course, not unique. Neither is inquiry into the validity of using originalist citations to justify constitutional interpretation. Indeed, the last several decades have witnessed a resurgence of interest in and criticism of constitutional theories that focus on the intent of the framers as a guide to constitutional interpretation.3 A great deal of this attention has been driven by the idea that personal policy preferences should not guide federal judges in their constitutional interpretation and the dueling contentions that referencing originalist material is either the only legitimate way a justice can make a decision that is not based on personal policy preferences or that it is simply a way to cloak judicial decision making based on policy preferences.4 As two legal scholars noted, "If history can provide a reliable guide to the intent of those who crafted constitutional language, then it may be possible for judges to base their decisions upon neutral principles as opposed to their personal predispositions. Critics, however, continue to question the merits, feasibility, and limits of intentionalism as a jurisprudential approach."5 The out-of-context use of Madison's quote, however, is an excellent example of the value of a statement made by a framer of the Constitution as a legal authority and guide to judicial decision making even when the quote has little or nothing to do with the constitutional issue being considered.

The purpose of this article is twofold. First, the article quantitatively examines when justices use originalist citations to support their arguments in cases involving freedom of expression. Second, the article qualitatively explores the content of the justices' originalist citations to determine how the justices are describing the framers' understanding of the speech and press clauses of the First Amendment. While much of the previous literature on the strategic use of originalist citations has focused solely on the quantitative analysis of citations, this article examines the substance of those citations, as well.6 Based on the analysis of originalist citations, the article concludes that although originalism is more closely associated with conservatism,7 liberal justices have more frequently used originalist citations to expand constitutional protections for freedom of expression, and most justices uncritically used originalist citations as legitimate interpretive tools.

Origin alism and Strategic Citations

As Elena Kagan's confirmation hearings and former Justice David Souter's recent commencement address to Harvard University demonstrate,8 there is still a great deal of legal and political debate over the power of judicial review and the various methods of constitutional interpretation. …