What to make of ‘make’ in the First Amendment

Thursday, May 8, 2008

Make. It is a simple word, a verb. Yet its connection to our First Amendment is rife with historical meaning. Recall, the 1791 guarantee begins with the words: “Congress shall make no law … .” But why that word? What did it suggest? What evils was it directed against? And what does the constitutional history of the word teach us today?

Threat of runaway congressional power
Among other things, the notion of making something suggests putting parts together or combining substances to produce something new or different. Now consider that basic idea against the backdrop of a pre-Bill of Rights America, circa 1787. The fear of many back then, as expressed by a writer calling himself Centinel in an Oct. 24, 1787, statement in the Freeman’s Journal (Philadelphia), was this: “Cannot Congress, when possessed of the immense authority proposed … restrain the printers, and put them under regulation?” Or to state it more specifically, as Timoleon did on Nov. 1, 1787, in the New York Journal: “In the 8th section of the first article of the new Constitution, the Congress have power given to lay and collect taxes for the general welfare of the United States. By this power, the right of taxing is co-extensive with the general welfare, and the general welfare is as unlimited as actions and things are that may disturb or benefit that general welfare.”

Hence, it was that mammoth grant of constitutional power conferred on Congress that struck fear into Republican hearts of the likes of Thomas Jefferson, James Madison and others of similar beliefs. The “omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion [and] freedom of the press,” among other rights, greatly troubled Jefferson, as he told Madison in a Dec. 20, 1787, letter. Without an express bill of rights — “fetters against doing evil” as Jefferson tagged it in a Feb. 7, 1788, letter to Alexander Donald — the government could all too readily deny liberty.

The Federalist idea that all powers not expressly given were reserved to the people did not comfort the anti-Federalists. Besides, as the anti-Federalist pamphleteer known as the Federal Farmer wrote on Jan. 20, 1788: The Article I, section 8 “power to tax the press at discretion is a power to destroy or restrain the freedom of it.” And this though “All parties agree that the freedom of the press is a fundamental right and ought not to be restrained by any taxes, duties, or in any manner whatever.” Since Congress’ power was so vast, it could easily “annihilate the freedom of the press” and others’ rights, complained Cincinnatus in the New York Journal on Nov. 1, 1787.

What, then, could be done to stop this “engine of imposition and tyranny”? That concern, expressed by Cincinnatus (Nov. 8, 1787, New York Journal) and others, is what led to the creation of the First Amendment with its bar against Congress making laws abridging the freedoms of speech, press, assembly and petition.

From principles to commands
The early state constitutions sought to protect freedom of expression and related rights by glorious declarations of grand principles. Article XII of the 1776 Virginia Declaration of Rights exemplifies this: “THAT the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.” Such thinking informed Madison’s June 8, 1789, proposal to the House, which in relevant part read:

“That in article 1st, section 9, between clauses 3 and 4 of the Constitution, be inserted these clauses, to wit, … The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

With this proposal Madison sought to limit Congress’ lawmaking powers in a section of Article I expressly concerned with restraints on legislative prerogatives. Had his proposal passed, the freedoms guaranteed by the First Amendment would have been situated between restrictions on bills of attainder and ex post facto laws (clause 3) and limits on the taxing power (clause 4). Wherever located, was the Madisonian proposal worded strongly enough to offset the vast powers otherwise conferred on Congress by the Constitution of 1787?

Charles Pinckney of South Carolina thought not; he expressed his view in a proposed amendment suggested at the Philadelphia Convention on May 29, 1787: “The legislature of the United States shall pass no law on the subject of religion [or] touching or abridging the liberty of the press … .” This idea of an express limitation on legislative power caught on. By Sept. 4, 1789, the Senate had considered a bill of rights proposal that declared: “That Congress shall make no law, abridging the freedom of speech or of the press, or the right of the People peacefully to assemble and consult for their common good, and to petition the Government for a redress of grievances.”

Though revisions were made, the “Congress shall make no law” language survived and became the supreme law of the land. But what of abridgments of First Amendment freedoms by the other branches of the federal government, the executive and judicial branches?

Jefferson had noted this kind of problem in a March 13, 1789, letter to Francis Hopkinson: “What I disapproved of from the first moment … was the want of a bill of rights to guard liberty against the legislative as well as the executive branches of the government, that is to say to secure freedom in religion, freedom of the press” and other freedoms (emphasis added).

One response to such objections might be this: The power to make laws is vested in the Congress, the power to enforce laws in the executive, and the power to interpret laws in the judiciary. By that constitutional logic, the executive could never enforce a law abridging any of the five freedoms protected by the First Amendment if Congress was barred from making such a law in the first place. Similarly, the judiciary could never interpret and thereafter apply a law abridging such rights for the same reason. By that measure, a restriction on Congress’ lawmaking powers was a limitation on the powers of the other two branches of government as well.

Another argument, among others, is also plausible. The anti-Federalist objections to the Constitution of 1787 reveal that if any branch of government had the constitutional power to abridge our expressive and religious freedoms, then Congress with its vast powers would be that branch, the sole branch. Thus, only its powers were limited when it came to our First Amendment freedoms. The Federalists thought Congress had no such power; the anti-Federalists thought it did; but both would have agreed that neither the executive nor the judicial branches had any such delegated authority in need of restriction by way of constitutional amendment. If this is so, then by what authority today can a court, aided and abetted by an executive agent, prosecute, say, the press for failing to reveal a confidential source? For surely such judicial and executive actions implicate that “freedom of the press” against which even Congress cannot make a law “abridging” it. For the judiciary or executive to take any such actions, then, would be to act in contempt of the Constitution, or so the old-fashioned line of constitutional thinking might have it. (Whatever the soundness of such arguments, the First Amendment has since been held applicable to both the executive and judicial branches, and to the states by virtue of the 14th Amendment.)

Financial coercion & the First Amendment
In notable measure the birth of the First Amendment was linked to fears about the specter of government-backed financial coercion on freedom of the press. To be sure there were also concerns, among other things, about the impact that libel laws, criminal and civil, might have on freedom of the press. The 1788 case of Respublica v. Oswald (1 Dall. 319, Pa.) in which Eleazer Oswald was criminally fined and sentenced for libel is but one example. Still, the power of Congress to wage “war” against the press with its Article I powers was very much at the forefront of an ever-growing demand to check such powers.

Early libertarian free-speech theory, if it can be called that, was born out of this fear of financial oppression. “I am not clear,” protested the Federal Farmer (Oct. 12, 1787), “that congress is restrained from laying any duties whatever on printing, and from laying duties particularly heavy on certain pieces printed, and perhaps congress may require large bonds for the payment of these duties.” That was the fear. And should a printer say, he continued, that the “freedom of the press was secured by the constitution of the state in which he lived, congress might, and perhaps, with great propriety, answer that the federal constitution is the only compact existing between them and the people.”

That fear of repressive taxation against the press was hardly new. “In 1712, in response to a message from Queen Anne … , Parliament imposed a tax upon all newspapers and upon advertisements. … That the main purpose of these taxes was to suppress the publication of comments and criticisms objectionable to the Crown does not admit of doubt,” wrote Justice George Sutherland for a unanimous Court in striking down a newspaper tax in Grosjean v. American Press Co. (1936). “There followed,” he added, “more than a century of resistance to, and evasion of, the taxes, and of agitation for their repeal. [It has been] pointed out that these taxes constituted one of the factors that aroused the American colonists to protest against taxation for the purposes of the home government; and that the revolution really began when, in 1765, that government sent stamps for newspaper duties to the American colonies.”

This pre-Bill of Rights sensitivity concerning the specter of government directed financial coercion against the press, in addition to Grosjean, finds modern-day expression in cases such as Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 1983 (user tax on newspaper ink and paper struck down) and Arkansas Writers’ Project, Inc. v. Ragland, 1987 (state sales tax on certain printed materials but not others struck down). (Moreover, the tax question also arose in the free-exercise context with discriminatory taxes on religious printed matter. See, e.g., Follett v. Town of McCormick, 1944.)

It is interesting to speculate just how far such “originalist” thinking might take modern free-speech theory. There are many past or potential examples to consider. For example, does the First Amendment prohibit certain kinds of taxes on Bibles and other religious books? If so, then what about printing plants, or secular books and magazines? What about selective grants and denials of favorable postage rates? What about laws concerning income or payroll taxes on preachers, editors, broadcasters, movie houses, or nightclub comics? Enough? Just imagine where else this might take one. Which makes one wonder: Is there something special about First Amendment freedoms?

‘Make no law’ — implications for constitutional government
The make no law prohibition of the First Amendment is unique to the rights of that guarantee. For nowhere else in the Constitution and its 27 amendments are the powers of government thus restrained. Even under the Third Amendment, soldiers can sometimes be quartered in our homes if “prescribed by law.” And while other provisions of the Constitution permit government to act only when expressly authorized, no other provision bans outright the making of a law.

The amendment does not, however, ban the making of laws to “enlarge and enrich” those freedoms otherwise secured by the First Amendment — so maintained the free-speech philosopher and educator Alexander Meiklejohn (1872-1964). That argument may be grounded in the notion that if Congress retained its original Article I, sect. 8 powers to “make Laws … necessary and proper” to advancing the “general Welfare,” then it could continue to exercise such powers provided it did not “make” a law abridging First Amendment freedoms.

Mindful of that negative command, consider the Flag Protection Act of 1989, prohibiting the intentional mutilation or defacement of the American flag. Or consider the Communications Decency Act of 1996 and its attempt to regulate expression on the Internet. In both instances, and numerous others, Congress made laws it was unauthorized to make (the pre-Bill of Rights argument) and laws it was barred from making (the Madisonian argument). This abridgment of the people’s liberty could not be defended, as some in Congress tried to do, by simply leaving the matter to the courts to decide. The reason: The first (though not sole) responsibility to safeguard the First Amendment resides with lawmakers — it is first and perhaps foremost their constitutional duty.

Before courts in a particular case “balance” the rights of an individual against some government interest, lawmakers must first honor their obligation to make “no law” abridging our First Amendment freedoms. That is, the legislative process must be conducted in such a way, and operated with certain institutional safeguards, so as to prevent any and all proscribed abridgments in the first instance.

Justice Hans Linde (for whom I once clerked) made the point ably back in a 1981 law-review article: “If government acts without a basis in valid law, the court need not find facts or weigh circumstances in the individual case. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression” (66 Minn. L. Rev. 171).

In these post-Warren Court times, with our obsession with courts and rights, it is all too easy to relieve — formally or functionally — lawmakers of their solemn duty to uphold the First Amendment. To allow them to abdicate their constitutional responsibility, however, is to ignore a very old Madisonian truism, namely, that the law is what we do or don’t make it.

The sources mentioned in the text can be found in: Neil H. Cogan, ed., The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. New York: Oxford University Press, 1997.

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