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

By David L. Lange; H. Jefferson Powell | Go to book overview

CHAPTER 12
Forward to the Eighteenth Century

RECALL ALEXANDER HAMILTON'S CLAIM in the Federalist that it would have been a useless mistake to incorporate into the Constitution a provision protecting liberty of the press.1 Hamilton based this assertion on the observation that, in essence, reasonable people can differ over the proper scope of such liberty, and that since that is the case such a provision would be too ambiguous in meaning to be effective. The First Amendment, viewed from this perspective, would be (as Judge Robert Bork said famously of the Ninth Amendment) “an inkblot,” a constitutional text without discernible operational significance, and certainly incapable of providing a satisfactory basis for the courts to disregard an act of the national legislature.2 It is striking that this argument, which from the standpoint of expediency would have been valuable to the Federalists of 1798, was made by none of them. Without known exception, the defenders of the Sedition Act justified the Act not by denying that the First Amendment was an appropriate basis for invalidating an act of Congress but instead by insisting that the Act was consistent with the meaning properly to be ascribed to the amendment. The First Amendment does have operational significance, they readily admitted, and to determine that significance the Federalists introduced the first doctrinal innovation in the amendment's history: they invoked Blackstone's definition of liberty of the press as the key to interpreting the amendment's prohibition on federal laws abridging the freedom of speech or of the press. The power to enact such abridgments, in other words, is the power to “lay… previous restraints upon publications,” that prevent anyone from “laying what sentiments he pleases before the public.” It is thus the power “to subject all freedom of sentiment to the prejudices” of someone acting with governmental authority, and “make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”3

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