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Friday, August 10, 2007

Justice Thomas's Originalism in Morse v. Frederick

In doing research for a short symposium piece I'm writing on Justice Thomas and student free speech rights -- namely, his concurrence in Morse v. Frederick (the "Bong Hits 4 Jesus" case) I have had occasion to do a little thinking about originalism.  As a reminder, Thomas's concurrence calls for the overruling of Tinker v. Des Moines School District, mainly on the ground that the Speech Clause, as originally understood, did not extent to speech made by students in a school context.

Thomas’s opinion is startling, in the way that many of his separate opinions are, by questioning basic and seemingly well-settled principles of constitutional law.  (I’m not engaging him on the merits of either his particular views or the idea of overturning such principles; I’m simply noting that readers expecting justices’ calls for incremental change often find his willingness to question basic principles jarring.)  In one sense his opinion in Morse seems to be simply another one of these calls for what he believes to be a return to the original understanding of a given constitutional provision, whether it be the Commerce clause, the Eighth Amendment or Article I’s allocation of “all legislative powers herein granted” to Congress. 

But, at least at first glance, his originalism in Morse strikes me as somewhat different.  In particular, Thomas’s opinion seems to use originalism less to define the term at issue than to define the contexts in which it applies.  For example, it’s one thing to say that in 1789 “commerce” only meant commercial “intercourse,” and thus did not extend to manufacturing, agriculture and the like.  But it seems to me a different thing to say that in 1868 (or 1791? – Thomas is surprisingly vague on that question) “free speech” “means” some class of speech that excludes student speech because of who is making it and the context in which it's being made.  Of course it is plausible to argue that, as of a given year, “free speech” was not understood to include, say, sexual speech or commercial speech, and to draw from that fact whatever constitutional conclusions one might.  But Thomas’s concurrence suggests that even core political speech (indeed, such as the speech in Tinker) was not originally understood as “speech,” because of the identity of the speaker and the social context in which it was uttered.

I guess the upshot of my confusion is about what people mean when they talk about originalism (at least “original public meaning” originalism).  If that term means what it seems to mean, then it’s easy for me to understand Thomas’s argument about, say, the Commerce clause, but difficult for me to understand how “free speech” cannot include political speech simply because of where or by whom it was uttered.  Of course I suppose an originalist might say that the original public meaning of “free speech” was “speech except (among other types) that speech uttered by students in a school context.”  But that answer seems to do violence to the text by drawing distinctions the text doesn’t even hint at, distinctions based on speaker and context – which in turn seems to make it hard to justify any interpretation that purports to be based on the text’s “meaning,” original or otherwise.

Maybe then the argument is simply that “free speech” had an “original public meaning” inconsistent with the text – by excluding certain utterances not because they didn’t come within the original meaning of “speech” but because they didn’t come within the class of protected speakers or protected contexts.  But if that’s the case then isn’t it odd to elevate “original public meaning” over the text?  Nobody, for example, would elevate the presumed original public meaning of the minimum age requirement to be President – that we want only mature people to be President – over the text’s explicit setting of 35 as the minimum age.  Of course that’s an easier case but it’s not clear to me why the analogy wouldn’t hold here. 

I'll be poring over this question as I wander around the ABA annual meeting this weekend in San Francisco.  Any comments and help would be welcome.

Posted by Bill Araiza on August 10, 2007 at 12:26 PM | Permalink


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In case anyone happens across this thread again, my papers defending a duty-to-protect reading of the Equal Protection Clause are here and here.

Posted by: Chris | Mar 10, 2008 11:20:43 AM

I think the thing to do is to look at the linguistic evidence of the time to see how terms were used. For instance, I'm working on a project on the original sense of the equal protection clause: "nor shall any State deny to any person within its jurisdiction the equal protection of the laws." I think that "protection of the laws" refers to a particular body of rights--the right to be protected against violence and to have one's rights enforced in court. A big part of my argument involves searching through legal treatises published in the 1860s and 1870s for the phrases "protection of the law," "protection of the laws," and "equal protection" to see which phrase had the most developed legal usage at the time. The phrase "equal protection" isn't used nearly as often, while "protection of the law" or "protection of the laws" are used many, many times to refer to protection from violence and the right to a remedy. I take that evidence to mean that we should be emphasizing protection, not equality in a generic sense, because "protection of the laws" was used as it was. Similarly, to see which chunks of words we should construe together, we should look for evidence of the individual words of the 1A being used together in founding-era legal materials. If they were grouped together in contemporary materials of the same genre, that's good reason to think the words were grouped together in the way a reasonable historical observer would hear the constitutional language. (It's much easier for 14A-era legal treatises, by the way, because of the wonderful Making of Modern Law database.)

Posted by: Chris | Aug 15, 2007 7:12:50 PM

I much appreciate the comments to my post. I especially appreciate anonymous skeptic's, which makes an excellent point about the key term not being "speech" but "freedom of speech." But still, leaving aside my original sloppy reference to "free speech" (which AS is perfect right in noting doesn't appear in the First Amendment), I wonder why the proper term to investigate the original meaning of is "freedom of speech." The assumption (and AS can correct me if I'm wrong) seems to be that "freedom of speech" is a term that can be thought of as having a distinct original meaning. But why? Why not consider "freedom" and "speech" to be independent terms with distinct original meanings that have to be combined to determine the meaning of "freedom of speech?" Or why not "abridging freedom of speech" -- for all I know maybe that was a term of art circulating circa 1791, such that (for example) only prior restraints counted as a law "abridging freedom of speech." And of course, what about the original meaning of "law"? I believe some scholars have argued, for example, that the equal protection clause only applies to law enforcement, since that's what was understood in 1868 to constitute the "protection" of the law that had to be equal. Should the opposite argument be made in the First Amendment context -- i.e., that "no law" means simply "no legislation?" (Surely, the reference to "Congress" in the First Amendment might support that reading.)

My question -- and it really is a question -- is simply this: if we're looking for the original (or even modern) meaning of a textual provision, don't we need consensus on what the provision consists of? AS's post suggests that the key term to focus on is "freedom of speech". Why that term, and not the other permutations I suggest above?

Obviously, the problem is only magnified when we consider the problem of meaning as of 1791 versus meaning as of 1868. In theory this seems an esily soluble problem -- when interpreting the "First Amendment's" restrictions on state governments, just use the 1868 understanding of "freedom of speech," or "abridgements of freedom of speech," or "laws abridging freedom of speech." But that surely is a harder task than determining the 1791 meaning of whatever term one chooses, since there seem to be not much more than just relatively vague references to the right of freedom of speech protected by the 14th Amendment.

As I said in my original post I'm only now beginning to think about originalism in any serious way, so these are preliminary questions. But I have to say that these difficulties raise some early doubts in my head about the viability of originalism a a source of judicially accessible answers to the kinds of questions courts are faced with. Is there a straightforward way to do this kind of analysis?

Posted by: billaraiza | Aug 15, 2007 3:16:09 PM

I agree with Ken that sometimes it's hard to tell what sense is expressed by a text. But doing a bit more historical digging will frequently show that possibilities that seem at first blush to be reasonable are actually not so. For instance, I don't think the equal protection clause was ever reasonably read to have anything to do with the right to attend schools, because the right to attend schools isn't part of the "protection of the laws," which the clause requires states to provide. But that's a big long paper, which I'm working on now--see Maltz, Harrison, Avins, and tenBroek for anticipations.

I do think, though, that the privileges or immunities clause prohibits segregated schools. It's not hard to see how people could think otherwise in 1866, because they explained themselves regarding very similar language at the time. James Wilson said regarding "civil rights or immunities" language in a draft of the Civil Rights Act of 1866 that they did not include rights regarding schooling because that phrase refers to those rights which "already belong to every citizen." But Republicans shortly later said that their desegregation bill "simply confers upon all citizens, or rather recognizes the right which has already been conferred upon all citizens, to send their children to any public school."

Rather than saying that both of these interpretations are within the range of reasonable opinion of what the 14A means, we should say that they give very similar constructions to the sense of "civil rights and immunities among citizens of the United States" and "privileges or immunities of citizens of the United States," but simply disagree on the factual question of whether education is a right given to all citizens. We should resolve the dispute by resolving that factual question.

Posted by: Chris | Aug 15, 2007 9:11:07 AM

There seems to be a confusion developing in the phrase "original public meaning". I have always taken it to mean "the set of possible meanings that a reader at the time might have given it"-i.e., the text.

The school which says that the "original public meaning" of hte equal protection clauses did not include integration of public facilities is actually not doing this--what they seem to be doing is looking for the subjective intention that a majority of supporters might have given it at the time. Perhaps even did give it at the time.
The equal protection clause at the time was taken by many not to exclude segregated public facilities--but some, even at the time, did believe that it prohibited segregated public facilities.

That gets me half way to where I think I want to go--because now I can say that the subjective views of some persons were opposed to the subjective views of others.

But the real point is that in reading the text of equal protection clause, as it would have been read in 1868, the prohibition of segregated public facilities is one meaning that might have been given to it. (I still do not emotionally understand how the opposite meaning could have been given to that text--but it's quite clear that it was at the time, and I have to be wrong if I try to eliminate it from the possible public meanings of the clause.)
Thus, in my view, you have to include both views within the range of original public meanings.
So chris is right when he says "its the original public meaning of the text."
But that only gives us the range of possibilities. Interpretation has to choose among them when the different possible public meanings of the time would result in different outcomes of a case.

Posted by: Ken Gallant | Aug 14, 2007 1:04:51 PM

I agree with Anonymous Skeptic that the word "abridge" in the 1A is important. It seems to me that in that context, "the freedom of speech" refers to the rights related to speech customarily respected in 1791; likewise, "the privileges or immunities of citizens of the United States," also protected from abridgement by the 14A, seems to refer to those privileges or immunities generally held by citizens. So Thomas needn't say that speech by students isn't speech; he can say instead that it's not part of the freedom of speech that the 1A protects from abridgement.

Thomas anticipates Bader's point about incorporation in his concurrence at page 2 n.1 by referring to state free-speech guarantees; they were enforced against the states, of course, in the 19C, but still didn't give much protection to students. Maybe those provisions aren't good guides to the original meaning of an incorporated 1A or the 14A, but they're surely worth something.

On the larger theoretical question, I don't think that original-meaning devotees properly pit text against original public meaning; it's the original public meaning of the text (I'd prefer, the sense historically expressed by the constitutional language) that is interpretively paramount.

Posted by: Chris | Aug 11, 2007 1:00:24 AM

As I explain in a forthcoming publication in the Cato Supreme Court Review, Justice Thomas's concurrence in Morse v. Frederick relies on some arguments that flout settled principles of constitutional construction.

Most of the cases Justice Thomas cited weren't First Amendment cases at all. Some involved discipline for non-speech, like stealing a teacher's chair or possessing stones. Others did involve speech, but none of those cases raised the First Amendment or any state-constitutional free-speech guarantee. And all of the cases involving discipline for speech were issued before the Supreme Court definitively held that the First Amendment applied to state (as opposed to federal) actors in Near v. Minnesota (1931). So the First Amendment issue wasn't even present.

Soon after the Supreme Court held that the First Amendment applies to the States around 1930, it applied the First Amendment to public school students, in cases like West Virginia Board of Education v. Barnette.

So there isn't much history of the First Amendment being applied to citizens in general against state governments, but not to public school students -- the false dichotomy on which the concurrence rests.

Posted by: Hans Bader | Aug 10, 2007 6:27:54 PM

Prof. Araiza,

I hate to be nitpicky, but the Constitution prohibits Congress from "abridging the freedom of speech," not from abridging free speech. So the question is what is the content of the "freedom of speech" that cannot be abridged---a phraseology abstract enough to fit in time, manner and place restrictions (such as those in *Morse* or even more traditional tmp restrictions) along with restrictions on certain types of speech (such as obscenity).

Of course, one might reject the originalist line for other reasons---chief among them the need to cabin judicial discretion (cf. Justice Black) or the need to maintain viable democratic discourse (a la Breyer)---but that's another issue entirely.

Posted by: Anonymous Skeptic | Aug 10, 2007 1:53:48 PM


I think that a more appropriate analogy than the text's explicit setting of 35 as the minimum age for the presidency, is the age-old question that original meaning scholarship has struggled with, which is the Equal Protection Clause and segregation.

While originalists always find a way around original meaning in the Fourteenth Amendment context to justify Brown v. Board of Education, the conventional view (disputed by Professor McConnell and others) is that the congressional framers of the Fourteenth Amendment did not intend, and the original public meaning was such that the Equal Protection Clause did not invalidate segregated institutions, such as schools (For ways around this conundrum see e.g. Bork and Berger). Such an argument also does violence to the text (at least as we understand it) as argued by Dworkin and others who say that equal means equal and segregation is not equality.

However, when it comes to abstract provisions such as the Equal Protection Clause and the First Amendment free speech provision, I believe that a true originalists (and arguably other constitutional scholars who apply an expansive view of the text) would subordinate text to original public meaning. Scholars tend cite or implicitly rely on the famous phrase by Justice Marshall in McCulloch v. Maryland that the Constitution was not intended "to partake the prolixity of a legal code" when making their arguments about the limitations of text in interpreting the meaning of the Constitution. However, this phrase could be read as both meaning that the text does not include all the rights intended to be protected but also, and less recognized, that the text was not intended to grant all of the rights that the abstract provisions should grant if taken to their logical conclusions. The latter makes sense when you consider any restriction of speech by Congress in spite of the language in the First Amendment that "Congress shall make no law," although this provision could probably be explained away by other means.

My ultimate conclusion is that it makes sense in Justice Thomas's world and in fact in the world of many other constitutional scholars to elevate some other disciplining rule (for Justice Thomas it seems to be original public understanding although his historical account is subject to major disputes) over the text.

Bertrall Ross

Posted by: Bertrall Ross | Aug 10, 2007 1:13:53 PM

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