No Law: Intellectual Property in the Image of an Absolute First Amendment

ON SEPTEMBER 14, 1787, the Friday before the Philadelphia convention adjourned forever, two of its members, Charles Cotesworth Pinckney and Elbridge Gerry, moved to add a provision to what is now Article I, Section 9 of the Constitution. The provision would have required “that the liberty of the Press should be inviolably observed.” Although Pinckney was later to claim that the issue was “fully debated” by the Framers, James Madison's notes record only a single comment, by Roger Sherman—”It is not necessary—The power of Congress does not extend to the Press”—and the laconic observation that the motion “passed in the negative.”¹ Thus the Constitution which the Framers proposed contained no language generally addressing individual freedom of expression, although they did include a provision guaranteeing to Congress's members the traditional parliamentary privileges of the House of Commons, one of which is that “for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The omission did not pass unnoticed. Opponents of ratification complained that the failure to include a declaration of individual rights was a fatal defect, and muttered darkly about the baleful significance of the Framers' indifference, or hostility, to liberty of speech and press. In response, the advocates of ratification insisted repeatedly that by enumerating what the federal government may do, the Constitution necessarily implies what the government may not do. The Constitution's delegations of power would provide the mechanism by which the Constitution would safeguard liberty, and in particular the liberty of the press. Alexander Hamilton, for example, wrote in Federalist 84 that “The truth is, after all the declamation we have heard, that the Constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” There can be no need to protect, say, liberty of the press under a Constitution that delegates to government no power over the press in the first instance.

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