Common Law Constitutionalism and the Protean First Amendment

COMMON LAW CONSTITUTIONALISM AND THE PROTEAN FIRST

AMENDMENT

Ronald J. Krotoszynski, Jr.

Not unlike the Greek god Proteus, a famous shape-shifter, the First Amendment seems to change

its form and shape over time, through a process of dynamic judicial construction, to promote and

safeguard the ongoing project of democratic deliberation. In fact, the First Amendment’s text

plays virtually no meaningful role in protecting expressive freedom in the contemporary United

States. Despite containing four distinct clauses (the Speech, Press, Assembly, and Petition

Clauses), only the Free Speech Clause seems to do any meaningful jurisprudential work. The

Press, Assembly, and Petition Clauses have fallen into desuetude; they generate little

constitutional litigation and very few Supreme Court decisions. Textualist jurists, including

Justices Neil Gorsuch, Clarence Thomas, Antonin Scalia, and Hugo Black, routinely claim that

they must strictly follow the text as written when interpreting the Constitution. Curiously, however,

these self-described textualist and originalist jurists do not follow this interpretative approach

when applying the First Amendment. Instead, First Amendment interpretation is invariably

purposive, dynamic, and of the “living tree” stripe. This phenomenon raises important and

interesting questions about the relevance and efficacy of constitutional text in securing both

expressive freedom and fundamental rights more generally. In the U.S., and abroad as well,

expressive freedom depends much more on social, cultural, and political norms and traditions

than on constitutional text. The protean First Amendment strongly suggests that—notwithstanding

the vociferousness with which conservative judges, legal scholars, and lawyers advance textualist

claims—the process of constitutional adjudication is, in its essence, a common law enterprise.

Simply put, text can constrain only insofar as it provides a plausible basis for a judicial decision

that accords with the contemporary constitutional sensibilities of We the People.

I. INTRODUCTION: THE FIRST AMENDMENT AS A NON-TEXTUAL TEXT

The First Amendment, like the Greek god Proteus, changes its shape to

meet the perceived necessities of safeguarding the ongoing process of

democratic deliberation.

Despite containing four distinct clauses related to

John S. Stone Chair, Director of Faculty Research, and Professor of Law, University of Alabama

School of Law. With thanks to the law faculties at Oxford University, the University of Edinburgh,

the University of Leeds, Reading University, Cornell University, the National Public Service

University (Budapest), Indiana University-Indianapolis (McKinney), Syracuse University, Dayton

University, and Wayne State University, which all hosted faculty workshops associated with this

Article and my related book project.

Common Law Constitutionalism and the Protean First

Amendment

comprises part of a larger, book-length project that will deploy a comparative legal

analysis to consider the (limited) relevance of constitutional text to expressive freedom in the United

States and also in other democratic politics: FREE SPEECH AS CIVIC STRUCTURE: A COMPARATIVE

LEGAL ANALYSIS OF HOW COURTS AND CULTURE—NOT CONSTITUTIONAL TEXT—SHAPE THE

FREEDOM OF SPEECH (forthcoming Oxford University Press 2024). The University of Alabama Law

School Foundation provided a generous summer research grant that supported the author’s work on

this project. The usual disclaimer applies: Any errors, omissions, or mistakes are solely the

responsibility of the author.

Although multiple theories exist for extending strong legal protection to expressive activities, the

dominant and most enduring account rests on the relationship of speech, assembly, association,

petition, and a free press to the ongoing process of democratic self-government.

See

ALEXANDER

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[Vol. 25:1

particular forms of expressive freedom

—namely express protections for

speech, press, assembly, and petition

—the federal courts appear to have

“forgotten” three of the amendment’s four clauses.

Indeed, the First

Amendment’s text has little, indeed almost nothing, to do with the

contemporary metes and bounds of expressive freedom in the United States.

The First Amendment instead stands for the proposition “that debate on

public issues should be uninhibited, robust, and wide-open” and, consistent

with this approach, the public discourse that informs the act of voting on

election day “may well include vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.”

To serve these

constitutional goals, the amendment’s meaning depends far less on its

language than on its broader and more general purposes.

Proteus, the son of Poseidon, served as Poseidon’s “shepherd of the sea.”

Homer styles Proteus the “Old Man of the Sea” and also notes that Proteus

MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26 (1948) (“The principle

of the freedom of speech springs from the necessities of the program of self-government.”);

see also

CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 18 (1993) (positing that a

“well-functioning system of free expression” is essential to achieving “the central constitutional goal

of creating a deliberative democracy”).

Throughout this Article, I will use the phrase “expressive freedom” as a shorthand for the various,

and differentiable, forms of expressive activity that the First Amendment, at least on its face, protects—

including the freedoms of speech, press, assembly, and petition. All four activities involve distinct

modalities of expression – communication – and all of them contribute in important and distinctive

ways to the process of democratic deliberation (which is essential to the project of democratic self-

government). As Professor Ash Bhagwat persuasively argues, the First Amendment “was intended

to give citizens—ordinary people—the tools to engage in political debate, to organize themselves in

associations, to assemble for a variety of purposes including consulting together regarding the issues

of the day, and to call for action from elected officials through formal petitions.” ASHUTOSH

BHAGWAT, OUR DEMOCRATIC FIRST AMENDMENT 161-62 (2020). Free speech is an important

but hardly the only form of expressive freedom necessary to sustain democratic deliberation.

See

generally

CASS SUNSTEIN, REPUBLIC.COM 153 (2001) (arguing that “the free speech principle should

be read in light of the commitment to democratic deliberation” meaning that “a central point of the

free speech principle is to carry out that commitment”).

U.S. CONST. amend. I.

BHAGWAT,

supra

note 2, at 4.

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964);

see

Snyder v. Phelps, 562 U.S. 443, 460-61

(2011) (acknowledging that “[s]peech is powerful” and “can stir people to action, move them to tears

of both joy and sorrow and—as it did here—inflict great pain” but that it is better “to protect even

hurtful speech on public issues” than to “stifle public debate”).

CHARLES L. “PIE” DEFOUR, KREWE OF PROTEUS: THE FIRST HUNDRED YEARS 5 (1981)

(describing Proteus as the “‘shepherd of the sea’” and explaining that he was “the herdsman of

Poseidon’s seals”);

see also

EDITH HAMILTON, MYTHOLOGY 38 (1942) (discussing Proteus and the

god’s powers).

March 2023]

COMMON LAW CONSTITUTIONALISM

possessed the gift of prophecy.

Thomas Bulfinch explains that, in addition to

the gift of prophecy, “[h]is peculiar power was that of changing his shape at

will.”

Proteus, as it turns out, was a rather reluctant fortune teller; a person

seeking to know the future would have to first catch Proteus and compel him

to spill the beans. To avoid capture, Proteus would change his shape and

form.

From this mythological god comes the modern concept of something

being “protean”—meaning changeable rather than fixed in form.

This Article will show that the First Amendment’s shape, like that of

Proteus, is far from fixed. More broadly, it will posit that

all

constitutional text

is, at least in theory, protean rather than fixed in form. Judge Guido Calabresi,

in a strikingly bold but ultimately unsuccessful argument, urged judges to

exercise an “updating” role with respect to statutes that they routinely exercise

over the common law.

Consideration of the First Amendment’s departure

from a text-based exegesis highlights how federal judges routinely perform an

updating role of the sort that Judge Calabresi advocates for statutes

—but with

respect to the Constitution itself. And, despite decrying “updating” of the

Constitution’s text, conservative Justices have embraced this practice with real

brio in the context of expressive freedom.

MAUREEN ALDEN, PARA-NARRATIVES IN THE ODYSSEY: STORIES IN THE FRAME 23 (2017) (noting

that Proteus was known as the “Old Man of the Sea”); DUFOUR,

supra

note 6, at 5 (describing Proteus

as “the Old Man of the Sea”);

see

HOMER, THE ODYSSEY 56-57 (George H. Palmer trans. 1892)

(noting that Proteus was the son of Poseidon and the “old man of the sea”).

THOMAS BULFINCH, BULFINCH’S MYTHOLOGY 173 (1913); HAMILTON,

supra

note 6, at 42.

See

BULFINCH,

supra

note 8, at 191 (“Proteus, waking and finding himself captured, immediately

resorted to his arts, becoming first a fire, then a flood, then a horrible wild beast, in rapid

succession.”); HAMILTON,

supra

note 6, at 299 (“But to hold him—that was another matter. [Proteus]

had the power of changing his shape at will, and there in our hands he became a lion and a dragon

and many other animals, and finally even a high-branched tree.”).

GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 3-5, 178-80, 190-91 (1982).

Id.

at 163-71.

See

infra

text and accompanying notes 217 to 230

I should emphasize that I am not referring to

monumental shifts in constitutional meaning, of the scope associated with Professor Bruce

Ackerman’s “constitutional moments,” but instead am claiming that judicial construction of

constitutional meaning constitutes a quotidian judicial activity.

See

BRUCE ACKERMAN, WE THE

PEOPLE, VOLUME 2: TRANSFORMATIONS 4-17, 408-21 (1998) (describing and discussing the

concept of “constitutional moments,” which are points of inflection when the Supreme Court ratifies

a major de facto amendment of the United States Constitution presaged by strong, empirically

observable shifts in the nation’s political life, beliefs, and constitutional commitments). In a sense,

any construction of language necessarily involves ascribing meaning to particular words, and words

only have meaning in the context of a particular interpretive community.

See

STANLEY FISH, IS

THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 14 (1980)

(“Indeed, it is interpretive communities, rather than either text or the reader, that produce meanings

and are responsible for the emergence of formal features.”). Even if a judge claims that he/she/they

is merely following the “plain meaning” or “the original understanding” of a particular constitutional

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The protean nature of the First Amendment is perhaps best exemplified

by how little practical or legal effect the actual words of the amendment

possess.

For starters, an amendment that begins rather specifically, namely

“

Congress

shall make no law,”

now applies to all government entities—

federal, state, and local—and no one bats an eye at this radical expansion in

the amendment’s potential scope of application.

Indeed, to even raise this

point today is to invite being accused of linguistic pedantry of the worst sort.

Yet, the words are unmistakably

there

—and they are unique in

all

the

provisions of the Bill of Rights. No other Bill of Rights provision is self-

evidently directed solely at the legislative branch of the national government.

turn of phrase, that exercise involves

that judge

, and

no one else

, conjuring legal effects from the

words.

See id.

at 13-16. Fish explains that “An interpretive community is not objective because as a

bundle of interests, of particular persons and goals, its perspective is interested rather than neutral;

but by the very same reasoning, the meanings and texts produced by an interpretive community are

not subjective because they do not proceed from an isolated individual but from a public and

conventional point of view.”

Id.

at 14.

See

BHAGWAT,

supra

note 2, at 3 (arguing that “essentially all of modern discourse and modern law

focuses on only one of the remaining provisions, freedom of speech”).

U.S. CONST. amend. I (emphasis added);

see

ERIC BARENDT, FREEDOM OF SPEECH 49 (2d ed.

2005) (“Textual arguments have been ignored in other respects. The First Amendment literally only

applies to the laws of Congress, but it has never seriously been suggested that executive and police

orders are immune from judicial review.”);

see also

DAVID A. STRAUSS, THE LIVING

CONSTITUTION 9 (2010) (“And then there is the first word of the First Amendment, which is

‘Congress’; so the courts, or the president, or the City of Chicago can freely abridge my freedom of

speech? That can’t be right, and, under clearly established law, it is not right.”). Professor Barendt

quite accurately notes that “[r]arely has such an apparently simple legal text produced so many

problems of interpretation.” BARENDT,

supra

, at 48. Making a related but distinct point, Professor

Strauss characterizes the Supreme Court’s free speech jurisprudence as “a tremendous success story

in American constitutional law” but cautions that “these successful principles” are the product of a

“the living, common law Constitution” rather than the text or original understanding. STRAUSS,

supra

, at 52-53.

See infra

text and accompanying notes 75 to 102;

see also

STRAUSS,

supra

note 14, at 56 (observing

that “[t]he first word of the amendment is ‘Congress’” but noting that “[n]o one today would suggest

that the president or the courts may infringe free speech”).

See

e.g.

, SANFORD LEVINSON & JACK M. BALKIN, DEMOCRACY AND DYSFUNCTION 145 (2019)

(lamenting that “[i]t is now regarded as simply naïve to point to the text of the Constitution and its

assignment to Congress of the power to ‘declare war’”). The First Amendment’s “Congress shall

make no law” language has become even less relevant than the express textual assignment of the war

power to Congress. That said, however, the growth of the imperial presidency, despite clear textual

guardrails meant to forestall such a development, clearly constitutes a blown constitutional call by the

nation’s governing institutions. Indeed, Professor Sandy Levinson argues that things have reached

an absolute nadir today, insisting on paying attention to the Constitution’s specific assignment of joint

responsibility for the war power to both Congress and the President provokes yawns rather than

concern from the law faculty at a leading (arguably

the

leading) national law school.

See id.

at 173-

75.

See

STRAUSS,

supra

note 14, at 56 (noting that the text of the First Amendment “could have been

drafted” broadly and “without limiting the prohibition to a certain branch of the government” to

better resemble literally

all

the other rights-granting provisions of the Bill of Rights).

March 2023]

COMMON LAW CONSTITUTIONALISM

As Professor David Strauss has observed, the First Amendment could have

been written broadly, like other provisions of the Bill of Rights. However, “it

wasn’t” and “the First Amendment alone singles out Congress.”

Strauss is

surely correct to posit that “[i]f we focus just on the text, the case for protecting

free speech against government infringement generally is actually somewhat

weak.”

The First Amendment’s status as an atextual text merely starts with

“Congress shall make no law.” More generally, an amendment that specifies

four

separate forms of expressive freedom—speech, press, assembly, and

petitionh—as been read and applied as if it contained

only one

(namely

speech). The Supreme Court has essentially ignored the Press, Assembly, and

Petition Clauses, analyzing virtually all First Amendment claims through the

lens of the Speech Clause.

Thus, it turns out that James Madison had no

need to bother including the Press, Assembly, and Petition Clauses because,

as interpreted and applied by the federal courts, these three clauses are entirely

redundant and quite superfluous.

Despite the obsession of many contemporary federal judges with the text

and original understanding of the Constitution and Bill of Rights,

many of

Id.

BHAGWAT,

supra

note 2, at 3 (lamenting that “essentially all of modern discourse and modern law

focuses on only one” of the First Amendment’s clauses, namely “freedom of speech”). Professor

Bhagwat accurately observes that the Press, Assembly, and Petition Clauses “have been almost

entirely forgotten.”

Id.

See generally

AKHIL REED AMAR & LES ADAMS, THE BILL OF RIGHTS PRIMER: A CITIZEN’S

GUIDEBOOK TO THE AMERICAN BILL OF RIGHTS 39 (2013) (observing that the “[f]ormulation of

an initial draft of a bill of rights was under the leadership of James Madison, who had initially been

lukewarm to the idea of adding a declaration of rights to the Constitution”).

For an iconic illustrative example, see ANTONIN SCALIA, A MATTER OF INTERPRETATION:

FEDERAL COURTS AND THE LAW 23-25, 37-47 (1997). Justice Scalia strenuously objects to “The

Living Constitution,” an approach that he describes as embracing the idea that the Constitution

“grows and changes from age to age, in order to meet the needs of a changing society” and argues

that the only legitimate approach to constitutional interpretation involves consideration of “the

original meaning of the text.”

. at 38.

But cf.

STEPHEN G. BREYER, ACTIVE LIBERTY:

INTERPRETING OUR DEMOCRATIC CONSTITUTIONS 115-20, 127-32 (2005) (rejecting originalism

and textualism, characterizing both approaches pejoratively as forms of “literalism,” and arguing that

literalist constitutional interpretation is both anti-democratic and suffers from “inherently subjective

elements” that undermine this approach’s ability to generate predictable, principled results and

positing that courts would better advance constitutional values by engaging in dynamic and purposive

constitutional interpretation that reads constitutional text in a way that best enables the process of

democratic self-government). Using considerably more direct language to make this same point,

Scalia quipped, incident to a law school lecture, that the Constitution is “not a living document” but

rather is “dead, dead, dead.” Katie Glueck,

Scalia: The Constitution Is ‘Dead’

, POLITICO (Jan. 29,

2013, 8:26 AM EST), https://www.politico.com/story/2013/01/scalia-the-constitution-is-dead-086853

[https://perma.cc/ZE8Q-UFL5].

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these very same judges are firmly and fiercely committed to giving the First

Amendment a dynamic and purposive interpretation.

Thus, like Proteus,

the form and shape of the First Amendment bends and changes over time—

yielding over a dozen three, four, and five part tests that the Justices will deploy

to frame and decide cases involving expressive freedom in particular contexts.

What’s more, the test count is growing—with the Supreme Court adopting new

interpretative schemes with each passing term of Court.

Strictly speaking,

See

Laurence H. Tribe,

Comment, in

A MATTER OF INTERPRETATION

, supra

note 22, at 65, 79-

82 (observing that despite Justice Scalia’s claim that the First Amendment “ought to be read as a

still-photo command that Congress not abridge such speech rights of Englishmen as were then

extant” that Scalia’s approach to deciding First Amendment cases “has in fact been guided by a

conception of the First Amendment more like my own,” meaning an approach that “evolve[s] over

time”). Professor Tribe is assuredly correct when he asserts that Justice Scalia “has not interpreted

the freedom of speech as a mere codification of the memories (or perhaps the ‘memories,’ mixing

hope and desire with actual recollection)” strictly tied to “a certain moment in the late eighteenth

century.”

Id.

at 81. Such a conception would surely not have encompassed protection for violent

video games, for example – something that would have constituted commercial entertainment rather

than speech well into the twentieth century.

Compare

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

799 (2011) (invalidating a ban on selling violent video games to minors “[b]ecause the Act imposes

a restriction on the content of protected speech”)

with

Mutual Film Corp. v. Indus. Comm’n of

Ohio, 236 U.S. 230, 243-44 (1915) (“We immediately feel that the argument is wrong or strained

which extends the guaranties of free opinion and speech to the multitudinous shows which are

advertised on the bill-boards of our cities and towns and which regards them as emblems of public

safety . . . and which seeks to bring motion pictures and other spectacles into practical and legal

similitude to a free press and liberty of opinion.”).

Mutual Film Corporation

’s refusal to extend any

First Amendment protection to motion pictures, assimilating them with “the theatre, the circus, and

all other shows and spectacles” and rejecting the film company’s argument that all of these

entertainments must enjoy “the same immunity from repression or supervision as the public press,”

Mutual Film Corp.

, 236 U.S. at 243, surely reflected a well-settled and long-standing understanding

of the First Amendment’s proper scope of application. Accordingly, Justice Scalia’s purposive

application of the amendment to invalidate California’s child-protection law was inconsistent with

over 150 years of Supreme Court precedent limiting the amendment’s scope to political or

ideological speech.

See

e.g.

, Valentine v. Chrestensen, 316 U.S. 52, 55 (1942) (refusing to afford

any First Amendment protection to a flyer that, in part, promoted a submarine tourist attraction).

Indeed, as late as 1949, a thoughtful lawyer would have believed a dormant Commerce Clause

challenge more likely to succeed as a basis for invalidating a ban on commercial advertisements on

panel trucks than the First Amendment’s Free Speech or Free Press Clauses.

See, e.g.

, Ry. Express

Agency, Inc. v. New York, 336 U.S. 106, 111 (1949) (rejecting the plaintiff’s argument that a local

regulation banning third-party commercial advertisements on panel trucks operated in New York

City violated the Due Process Clause, the Equal Protection Clause, and/or the Commerce Clause;

the company’s lawyers did not bother to make any claims under the First Amendment’s Free Speech

Clause, deeming the dormant Commerce Clause objection more plausible). Justice Scalia, by way

of contrast, had no problem with affording commercial speech broad and deep constitutional

protection.

See

e.g.

, City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428-31 (1993)

(featuring Justice Scalia joining a sweeping majority opinion holding that commercial speech cannot

be regulated more aggressively than non-commercial speech unless it contributes to a regulatory

problem in a distinctive way that non-commercial speech does not).

The Supreme Court’s latest decision on the speech rights of public-school students while off campus

provides an illustrative example.

See

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).

Rather than apply any of its pre-existing precedents and tests involving student speech rights, Justice

Stephen Breyer, writing for the majority, fashioned a completely new test to govern whether public

school authorities could impose discipline on a student for speech activity taking place off-campus,

but directed toward an audience comprised largely of students, faculty, and staff members at the

March 2023]

COMMON LAW CONSTITUTIONALISM

none of these tests have much, if anything, to do with the actual text of the

First Amendment.

If constitutional adjudication is, at bottom, a common law endeavor rather

a species of statutory interpretation, this should not really come as a great

surprise. The common law grows interstitially on a case-by-case basis.

Contract, tort, and property are, to an important degree, the domain of the

judges rather than the legislators.

There is a pronounced tendency on the

part of judges to disclaim responsibility for potentially controversial results—

and a concomitant desire to ground potentially controversial results in

constitutional text.

This habit of judicial fig-leafing with constitutional text

public school: “Given the many different kinds of off-campus speech, the different potential school

related and circumstance-specific justifications, and the differing extent to which those justifications

may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken

together, these three features of much off-campus speech mean that the leeway the First Amendment

grants to schools in light of their special characteristics is diminished.”

Id.

at 2046.

The general governing test for on-campus student speech,

Tinker

, merited mention in applying this

open-ended balancing test,

see id.

at 2047-48, but only insofar as the majority concluded that the

disruption associated with B.L.’s social media rant did not seriously affect or impede the Mahanoy

Area Public High School’s regular operations.

See

STRAUSS,

supra

note 14, at 9, 52-56 (arguing that the First Amendment’s literal text and the

Framers’ original understanding of it have been equally irrelevant to the development of First

Amendment doctrine). Rather than text or the original understanding, Strauss argues that “[w]e owe

these [expressive freedom] principles to the living, common law Constitution” and First Amendment

jurisprudence rests almost exclusively on “a series of judicial decisions and extrajudicial

developments, over the course of the twentieth century.”

Id.

at 53.

See

OLIVER WENDELL HOLMES, JR., THE COMMON LAW 36-37 (1881) (arguing that the law “will

become entirely consistent only when it ceases to grow” and positing that common law judges “have

a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew

whether those reasons are satisfactory” when deciding whether to maintain, amend, or abolish a

common law rule). Justice Holmes is remarkably explicit in his legal realist account of the common

law process: “The felt necessities of the time, the prevalent moral and political theories, intuitions of

public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men,

have had a good deal more to do than the syllogism in determining the rules by which men should

be governed.”

Id.

at 1.

CALABRESI,

supra

note 10, at 3-4, 52 (noting the power of common law courts to modify common

law rules and observing that “there is an important common law, judicial, function in the updating of

outworn laws”).

See

e.g.

, Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) (observing that “specific guarantees

in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give

them life and substance” and invoking the First, Third, Fourth, Fifth and Ninth Amendments to

require judicial recognition of a “zone of privacy created by several fundamental constitutional

guarantees”). Many commentators have criticized Justice William O. Douglas’s invocation of

“penumbras” from specific provisions of the Bill of Rights as deeply unpersuasive.

See

e.g.

CALABRESI,

supra

note 10, at 8 (arguing that “the

constitutional

basis for its [the Connecticut statute’s]

invalidity was tenuous, to say the least, especially at the time the decision was made” and explaining

that “[p]enumbras of constitutional prohibitions and rights to privacy were much mentioned, but

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often exists at a level of generality that the text can plausibly support. But

efforts to ground discretion in text do not change the fact that the judges, not

the text, are calling the constitutional shots.

Of course, this may well be a design feature rather than a bug. Meaning

this: If a choice must be made between a First Amendment tethered in time

to 1791, in which each of the specific clauses actually do particular—but largely

irrelevant in the twenty-first century—jurisprudential work and, on the other

hand, a world in which the literal language of the First Amendment is taken to

represent a more general principle that a just government should not censor

“We the People,”

with the precise details to be worked out over time by the

federal courts through the accumulation of precedents that define the precise

metes and bounds of expressive freedom, a very good case can be made in

favor of the latter over the former.

If our goal is creating and sustaining the

conditions necessary for democratic self-government to function, a dynamic

First Amendment should be preferred (and strongly) to a static (or statist) First

Amendment.

To be clear, I do not suggest that attention to the specific textual clauses

should displace the larger and more general understanding of the First

Amendment as a bulwark against government censorship. Instead, it is

entirely possible, and more desirable normatively, for the federal courts to

undertake both projects simultaneously. Taking this approach would enhance

and improve the scope and vibrancy of expressive freedom in the

contemporary United States.

Nevertheless, there’s something deeply incongruous about a judiciary

staffed with a great many self-described textualist jurists simply disregarding

the First Amendment’s plain language when interpreting and applying it. The

these concepts had not been, and were not soon to be, applied by the Court in principled fashion in

other closely related cases”). Regarding

Griswold

’s constitutional predicate, Calabresi posits that “[i]n

the end, the case was its own justification.”

Id.

at 9.

CHARLES EVANS HUGHES, ADDRESSES OF CHARLES EVANS HUGHES: 1906-1916, at 179, 185 (2d

ed. 1916) (address of May 3, 1907 to the Elmira Chamber of Commerce) (observing that “[w]e are

under a Constitution, but the Constitution is what the judges say it is”).

See

SUNSTEIN,

supra

note 2, at 157-58 (positing that, under the First Amendment, “government’s

burden is greatest when it is regulating political speech” because regulations of political speech are

most likely to reflect “illegitimate considerations, such as self-protection, or giving assistance to

powerful private groups” and are therefore both “biased” and “harmful”). As Sunstein states the

proposition, “[c]ontrols on public debate are uniquely damaging, because they impair the process of

deliberation that is a precondition for political legitimacy.”

Id.

at 158.

See

Tribe,

supra

note 23, at 79-82 (arguing that the First Amendment should be read to establish a

general principle of freedom of expression and expressive activity rather than as a highly

circumscribed guarantee tethered entirely to government practices regarding toleration of expressive

freedoms in 1791).

March 2023]

COMMON LAW CONSTITUTIONALISM

original understanding of the First Amendment does not fare much better.

The Alien and Sedition Acts of 1798, enacted by a Congress that contained a

good many delegates from the Federal Convention in Philadelphia and also

members personally familiar with Bill of Rights debates of 1789,

probably

better reflects what the Framers of the First Amendment understood it to

mean—perhaps nothing more than Blackstone’s construction of freedom of

speech as involving only rules against press licensing and prior restraints.

To provide a concrete example of a doctrine that is difficult—indeed

probably impossible—to reconcile with the original understanding, consider

the robust protection that the Supreme Court has afforded to commercial

speech (meaning: advertising to promote the sales of goods and services

The robust protection of commercial speech under the First Amendment

simply did not exist from 1791 to 1980 and cannot easily be reconciled with

how the generation that wrote the First Amendment understood it and applied

Alien Act, ch. 66, 1 Stat. 577 (July 6, 1798); Sedition Act, ch. 74, 1 Stat. 596 (July 14, 1798);

see

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 1885-1886

(1833) (discussing the Alien and Sedition Acts and observing that the Sedition Act’s “constitutionality

was deliberately affirmed by the courts of law,” as well as “in a report made by a committee of

congress” and “by a majority” of state governments).

BHAGWAT,

supra

note 2, at 16-17, 25;

see

4 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND 151-53 (1769) (“The [l]iberty of the [p]ress is indeed essential to the nature of

a free state: but this consists in laying no

restraints upon publications, and not in freedom

from censure for criminal matter when published.”);

id.

(opining that “[t]o subject the press to the

restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject

all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible

judge of all controverted points in learning, religion, and government” but cautioning that “to punish

(as the law does at present) any dangerous or offensive writings, which, when published, shall on a

fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of

peace and good order, of government and religion, the only solid foundations of civil liberty”);

STORY,

supra

note 32, at §§ 1878, 1883-1889 (1833) (discussing the limited scope of “the freedom

of the press” under the First Amendment and its relation to Blackstone’s conception of press

freedom); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 335 (2010) (holding that an FEC

administrative review process of political advertising “function[ed] as the equivalent of prior restraint

by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England,

laws and governmental practices of the sort that the First Amendment was drawn to prohibit”).

See

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-68 (1983) (holding that the “core notion”

of commercial speech relates to expression that “does no more than propose a commercial

transaction”) (internal citations and quotations omitted); Ohralik v. Ohio State Bar Ass’n, 436 U.S.

447, 455-56 (1978) (declining to set forth a clear analytical framework for deciding when a lawyer’s

speech is commercial rather than non-commercial in nature and positing that the distinction rests on

little more than the application of “commonsense”);

see also

Ronald J. Krotoszynski, Jr.,

Into the

Woods: Broadcasters, Bureaucrats, and Children’s Television Programming

, 45 DUKE L.J. 1193,

1212-13 (1996) (“Although the Supreme Court has a well-developed jurisprudence with which to

analyze governmental burdens on ‘commercial’ speech, it never has defined precisely what constitutes

commercial speech, nor has it provided a set of analytical tools one can use to accurately and

efficiently separate commercial speech from non-commercial speech.”).

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it.

First Amendment protection of commercial speech seems (very) hard to

explain or justify in either originalist or more broadly normative terms.

Other examples abound—for example, the use of the First Amendment to

constitutionalize civil service protections and to abolish the spoils system

which, since time immemorial, state and local governments used to control

access to government employment and contracts.

As Justice Lewis Powell

observed in

Elrod

, the spoils system constituted “a practice as old as the

Republic” and “a practice which has contributed significantly to the

democratization of American politics.”

If political patronage violated the

First Amendment, as the framing generation understood it, it’s very odd that

no one noticed this fact until 1976.

Even if the Constitution’s structural provisions may be, as Justice Scalia so

emphatically argued, “dead, dead, dead,”

the Free Speech Clause of the First

Amendment is very much

alive

—and this is precisely as it should be. But this

begs the important question of whether the “living” First Amendment’s actual

See supra

note 23.

GREGORY P. MAGARIAN, MANAGED SPEECH: THE ROBERTS COURT’S FIRST AMENDMENT 50-57

(2017). Professor Magarian argues that “[t]he

Lochner

era and the commercial speech doctrine

converge because First Amendment limits on commercial speech regulations might seem to resurrect

Lochner

.”

Id.

at 53;

see

Leslie Kendrick,

First Amendment Expansionism

, 56 WM. & MARY L.

REV. 1199, 1206-09 (2015) (discussing “First Amendment opportunism” and positing that a growing

proportion of contemporary First Amendment “claims mirror

Lochner

-era claims in their structure”

because “they posit a constitutional right, held by business interests (be they sole proprietors or

corporate entities), which immunizes them from government regulation, often regulation that relies

upon state interests in public health, safety, and welfare”);

see also

Frederick Schauer,

Commercial

Speech and the Perils of Parity

, 25 WM. & MARY BILL RTS. J. 965 (2017) (criticizing the broad

protection afforded commercial speech under contemporary First Amendment doctrine and arguing

against the expansion of the First Amendment rights of commercial speakers).

Heffernan v. City of Paterson, 578 U.S. 266, 268 (2016) (“The First Amendment generally prohibits

government officials from dismissing or demoting an employee because of the employee’s

engagement in constitutionally protected political activity.”);

see

Branti v. Finkel, 445 U.S. 507, 517

(1980) (prohibiting the discharge of government employees who lack policy-making authority or

process confidential information based on their political beliefs and associations);

see also

Elrod v.

Burns, 427 U.S. 347, 349 (1976) (holding, for the first time, that the First Amendment generally

prohibits a government employer from making an employee’s partisan identity a basis for hiring and

firing decisions).

Elrod

, 427 U.S. at 376 (Powell, J., dissenting).

See supra

note 22. Note that the relatively static interpretation of structural provisions in the

Constitution is more a function of judicial common law practice than of the text itself. If my thesis

that all constitutional interpretation is more common law than statutory in nature is correct, the

specificity of the text or its relationship to rights versus structure simply is not the controlling, or even

the most important, factor in informing judicial decision making and reason giving. Instead, the

behavior of judges is the most dispositive factor in determining the relevance, or irrelevance, of

constitutional text.

March 2023]

COMMON LAW CONSTITUTIONALISM

text can and should do more serious work in safeguarding the marketplace of

political ideas.

This Article will proceed in six additional parts. Part II considers whether

constitutional text can perforce constrain government behavior. Building on

the more general point that constitutional text often does not and probably

cannot effectively define, much less actually secure, fundamental human

rights, Part III shows how the First Amendment’s text is largely irrelevant to

“First Amendment” jurisprudence in the contemporary United States.

Part IV, using a comparative legal analysis, demonstrates how

constitutional text, as well as

the absence

of constitutional text, does not

prefigure the scope and vibrancy of expressive freedoms in other

constitutional democracies that feature judicial review of government actions

that trench on expressive freedoms—Australia, for example, lacks a

constitutional free speech guarantee, yet Australia’s highest judicial tribunal,

the High Court of Australia, has recognized an “implied freedom” of political

and governmental communication as a structural necessity in a polity that

practices democratic self-government.

Part V asks whether we need to

rethink more generally the salience of text to the scope and meaning of

constitutional rights.

Part VI draws on Chief Justice John Marshall’s theory of constitutional

interpretation, as well as on Judge Guido Calabresi’s theory of judicial

“updating,” to ground an argument about the centrality of judges, whose

decisions invariably are informed by legal, social, and broader cultural

expectations within a particular polity, to constitutional law and constitutional

interpretation more specifically. Simply put, despite widespread assumptions

about the salience of text to constitutions and constitutionalism, constitutional

law is fundamentally a species of common, not statutory, law.

Advocates of

textualism and originalism have failed to engage with this rather basic empirical

See

BHAGWAT,

supra

note 2, at 4-9.

See infra

text and accompanying notes 124 to 159;

see also

Austl. Cap. Television Pty. Ltd. v.

Commonwealth

(1992) 177 CLR 106 (Austl.); Nationwide News Pty. Ltd. v. Wills, (1992) 177 CLR

1 (Austl.). For a relevant general discussion of Australia’s implied freedom of political and

governmental communication, see Adrienne Stone,

The Limits of Constitutional Text and Structure

Revisited

, 28 U.N.S.W. L.J. 842 (2005).

See

STRAUSS,

supra

note 14, at 33-34 (explaining that in most cases presenting constitutional

questions “the text of the Constitution will play, at most, a ceremonial role” because “American

constitutional law is about precedents, and when the precedents leave off, it is about commonsense

notions of fairness and good policy”)

Strauss argues that “[t]he common law is a system built not on

an authoritative, foundational, quasi-sacred text like the Constitution” but instead rests on

“precedents and traditions that accumulate over time.”

Id.

at 3.

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truth—instead claiming

much like the House of Lords prior to 1966,

that

courts lack any legitimate power to alter or rescind their prior text-based

rulings. Finally, Part VII provides a brief summary of the main arguments and

synthesizes the lessons that the protean First Amendment can teach about the

limited ability of constitutional text, standing alone, to constrain bad

government behavior.

II. EXPRESS CONSTITUTIONAL RIGHTS (INCLUDING THE FIRST

AMENDMENT): INEFFECTIVE “PARCHMENT BARRIERS,” ESSENTIAL

BULWARKS AGAINST TYRANNY, OR POTENTIALLY BOTH?

The protean nature of the First Amendment raises a larger, and quite

important, question about constitutional design: Does text matter? Assuming

that text does matter—at least in some instances—should we be concerned

when courts purporting to interpret and apply that text choose to ignore it

(and, in the case of the First Amendment and expressive freedoms, do so

more or less completely)? These questions implicate longstanding arguments

about the importance of constitutional text, particularly in the context of

safeguarding fundamental human rights, that go all the way back to the Federal

Convention, which took place in Philadelphia, Pennsylvania, during the

summer of 1787.

For example, one might posit that the specificity of constitutional text will

prefigure its ability to bind both the political branches and the judiciary. In

the alternative, one might believe that structural provisions might be less

susceptible to creative judicial interpretation and application than rights

provisions—and therefore potentially do a better job of delimiting how

government institutions and actors operate.

From this vantage point, the

See

[1966] 1 Weekly L.R. 1234 (H.L.) (Eng.);

see also

CALABRESI,

supra

note 10, at 185-86 n.12

(discussing the House of Lords announcing that it could, contrary to its past claims to the contrary,

alter or abolish prior precedents and would take such action going forward); W. Barton Leach,

Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls

, 80 HARV. L. REV. 797,

798-99, 803 (1967) (discussing and describing the House of Lords’s change of heart regarding its

power to overturn prior precedents and observing that “the House of Lords with grace and dignified

simplicity has removed the artificial block to judicial law reform set up by its predecessors”).

See

John F. Manning,

Separation of Powers as Ordinary Interpretation

, 124 HARV. L. REV. 1939,

1943-49, 2005-17, 2021-24, 2040 (2011) (arguing that the federal courts should more strictly enforce

specific structural requirements and rules than more general provisions, such as the Vesting Clauses

of Articles I, II, and III that allocate powers among the three branches of the national government).

Of course, whether even structural provisions provide effective constraints will depend on whether

independent courts exist that have the institutional strength to enforce them against backsliding

political branches.

See

Ronald J. Krotoszynski, Jr. & Atticus DeProspo,

Against Congressional Case

March 2023]

COMMON LAW CONSTITUTIONALISM

limiting power of constitutional text exists on a continuum or spectrum that

depends critically on context. Good reasons exist to question whether either

of these postulations actually hold true. The better view might well be that

constitutional text means what judges say that it means—nothing more and

nothing less.

For the moment, however, and for the sake of argument, let us

assume that the question is a debatable one and that a legal text might bind the

institutions of government (at least in some contexts).

James Madison, generally a strong proponent of the written draft

Constitution—which seems to reflect at least some degree of faith in text as

means of constraining the behavior of the institutions of government—

nevertheless famously opposed the inclusion of a written bill of rights at the

Federal Convention and, for a time, during the ratification debates in the

states. When his friend and mentor, Thomas Jefferson, later offered his

strenuous objection to the draft constitution’s failure to include a written bill

of rights, Madison responded that textual guarantees of fundamental human

rights were of little—if any—practical utility because they could not, by

themselves, constrain a government bent on disregarding them.

In Madison’s view, written rights provisions simply do not work:

“[E]xperience proves the inefficacy of a bill of rights on those occasions when

its controul is most needed.”

He observed that “[r]epeated violations of these

parchment barriers have been committed by overbearing majorities in every

State” and such violations would likely occur at the federal level as well because

“[w]herever the real power in a Government lies, there is the danger of

Snatching

, 62 WM. & MARY L. REV. 791, 806 & 806 n. 48 (2021) (arguing that specific limits “on the

structure and function of the three branches presuppose[ ] a federal judiciary able and willing to make

its judgments stick” and positing that “specific constitutional strictures” will actually limit how

Congress and the President behave only if the Article III courts have the institutional power to

enforce those limits).

See

FISH,

supra

note 12, at 13-16 (arguing that interpretive communities imbue text, or words, with

meaning and that the symbols that comprise words have no necessary or inherent meaning outside

of an interpretive community); HUGHES,

supra

note 29, at 185 (arguing that judges, rather than the

literal words of the Constitution, define the Constitution’s meaning and scope of application).

See

Letter from James Madison to Thomas Jefferson (Oct. 17, 1788),

https://founders.archives.gov/documents/Madison/01-11-02-0218 [https://perma.cc/82RA-QG6R]

(last visited June 30, 2021);

see also

RICHARD LABUNSKI, JAMES MADISON AND THE STRUGGLE

FOR THE BILL OF RIGHTS 104-05, 160-64 (2006) (stating that Madison believed “a bill of rights

written on paper would not deter [the] majority”). It was left to Alexander Hamilton to defend the

omission of a Bill of Rights to the public.

See

THE FEDERALIST NO. 84, at 510, 512-14 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) (“I go further and affirm that bills of rights . . . are not only

unnecessary in the proposed Constitution but would even be dangerous.”).

Letter from James Madison to Thomas Jefferson,

supra

note 46.

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oppression” and “[w]herever there is an interest and power to do wrong, wrong

will generally be done.”

Thus, Madison had “never thought the omission [of a written bill of rights]

a material defect, nor been anxious to supply it even by

subsequent

amendment, for any other reason than that it is anxiously desired by others.”

Madison posited that federalism would serve as a more reliable safeguard of

the people’s rights and liberties than an extensive list of human rights.

Of course, Madison fails to explain why

structural

provisions will prove

any more efficacious than rights provisions. Delimiting the specific powers of

the national government, after all, is no less a “parchment barrier” than rights

provisions. What is more, a national government vested with broad powers,

including a general power to tax and spend for the general welfare, could, if it

wished to do so, consistently move the boundaries of federalism over time in

favor of the central government. Indeed, this is arguably precisely what has

happened from 1788 to the present. If Madison’s argument rests on a theory

that state governments could effectively and reliably check ever-broader

federal assertions of authority, obvious and immediate problems of collective

action and transaction costs arise.

Some structural provisions, such as vesting the state legislatures with the

power to select members of the federal Senate, perhaps do provide a self-

executing check on the expansion of the federal government’s authority.

But

the actions of the national government in the early years of the Republic,

Id.

;

see infra

text and accompanying notes 177 to 184;

see also

FISH,

supra

note 12, at 13-17 (arguing

that words have meaning only within the context of specific interpretative communities and that

meaning results from a process of contesting meaning that possesses both objective and subjective

elements but is neither entirely objective or subjective in character).

Letter from James Madison to Thomas Jefferson,

supra

note 46.

See id.

(arguing that “the limited powers of the federal Government and the jealousy of the

subordinate Governments, afford a security which has not existed in the case of the State

Governments”).

Even this claim is highly contestable.

See

STRAUSS,

supra

note 14, at 132-36 (explaining that the

direct election of U.S. senators significantly antedated the ratification of the Seventeenth Amendment

and that “[b]eginning in the 1830s . . . people who wanted to be elected to the Senate began appealing

directly to the voters of the state to vote, in state legislative elections, for candidates who were pledged

to support them for the Senate”). In other words, constitutional change, with direct popular input

on the persons who would serve in the federal Senate, came about through state law reform prior to

April 8, 1913 (the Seventeenth Amendment’s date of ratification). Thus, “[b]y 1911, a year before

the Seventeenth Amendment was proposed, over half the states had adopted the Oregon system,”

which involved public pledges by candidates for the state legislature to support particular U.S. Senate

candidates.

Id.

at 133-34.

March 2023]

COMMON LAW CONSTITUTIONALISM

including the creation of a national bank

and the Louisiana Purchase,

provided almost immediate and convincing evidence of the limited utility and

efficacy of structure as an effective check against mission creep by the federal

government.

Making a different argument in support of the omission of a bill of rights,

Alexander Hamilton, in

Federalist No. 84

, posits that written rights guarantees

were at best superfluous and, at worst, dangerous.

Defending the failure to

include a bill of rights, he argued that such guarantees are not needed when a

government has limited, clearly defined powers because “the Constitution

ought not to be charged with the absurdity of providing against the abuse of an

authority which was not given.”

Written rights guarantees, moreover, “would

even be dangerous” because “[t]hey would contain various exceptions to

powers which are not granted” thereby “afford[ing] a colorable pretext to claim

more than were granted.”

As Hamilton puts it, “[f]or why declare that things

shall not be done which there is no power to do?”

Thus, Hamilton argued

that express rights-granting constitutional provisions were unnecessary for a

limited constitution, whereas Madison argued that express rights provisions

would not, and probably could not, limit a government bent on violating them.

ALFRED H. KELLY, WINFRED A. HARBISON & HERMAN BELZ, THE AMERICAN CONSTITUTION:

ITS ORIGINS AND DEVELOPMENT 129-31 (6th ed. 1983) (describing and discussing the fierce debate

between Alexander Hamilton and Thomas Jefferson, as members of George Washington’s cabinet,

over the federal government’s authority to charter and maintain a national bank).

. at 147-50 (discussing the Louisiana Purchase and Jefferson’s initial belief that a constitutional

amendment would be necessary to render it lawful and his ultimate acceptance of a common law

approach to the Constitution under which “the power to acquire territory was inherent in the very

existence of the United States as a sovereign nation—a proposition that challenged the [Democratic-

]Republican theory of the Union as a compact among the states”). Professors Kelly, Harbison, and

Belz posit that the Louisiana Purchase, and the constitutional arguments that it engendered within

the ostensibly “strict construction[ist]” Jefferson Administration, reflect the salience of “new theories

and principles” that “embody values in the political culture”—and also perhaps a “cautionary

reminder that practice must temper theory.”

. at 148-50. Even in the early years of the Republic,

a “distinctively American form of constitutional politics” arose, one “based on rhetoric and principles

that have the power to influence public opinion because they express fundamental values.”

. at

150. In a word, constitutional practice in the U.S. has travelled the common law methodological

path for a very long time—dating back to the Washington and Jefferson Administrations.

The Seventeenth Amendment provides an instructive example. Direct election of U.S. Senators in a

great many states antedated its ratification.

See

STRAUSS,

supra

note 14, at 133-34. As Strauss puts

it, “[t]he Seventeenth Amendment . . . did not bring about the direct election of senators; it ratified a

practice of de facto direct election that had been instituted by other means.”

. at 135. In other

words, a common law evolution occurred that had effectively re-written the

structural

rules governing

how most members of the U.S. Senate would come to hold that office – “[t]he living Constitution was

the real agent of change” rather than the formal amendment process.

. at 136.

FEDERALIST NO. 84,

supra

note 46, at 513-14.

. at 514.

. at 513.

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Like Madison’s questionable claim that constitutional text related to

federalism and structure would effectively constrain the national government,

Hamilton’s argument lacks persuasive force. A power to tax, for example,

implies the power to destroy.

On this count, Marshall, not Holmes, has the

better of this argument: Congress routinely has used usurious taxes as a means

of regulating where its direct regulatory authority, at least at the time when

Congress enacted the “tax,” might have been open to serious constitutional

doubts.

Indeed, the validity of the Affordable Care Act’s mandate for

individual citizens to enter the private insurance market ultimately rested on

Congress’s constitutional taxing authority.

Thus, if Congress possesses the

power to tax and spend for the general welfare, it could easily and foreseeably

use these constitutional powers just like Louisiana’s state government under

Huey P. Long to impose discriminatory taxes on newspapers critical of the

government.

Madison won the battle but lost the war. The ratification conventions in

several states, notably including New York and Virginia,

made the inclusion

of a bill of rights an absolute condition for agreeing to ratify the proposed draft

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819) (observing that “the power to tax

involves the power to destroy” and that “the power to destroy may defeat and render useless the

power to create”).

But cf.

Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1928) (Holmes, J.,

dissenting) (“The power to tax is not the power to destroy while this Court sits.”).

See

e.g.

, United States v. Kahriger, 345 U.S. 22 (1953) (upholding a plainly regulatory enactment to

impose confiscatory federal taxes on commercial gambling operations). Provided that a federal tax

could produce some revenue, a regulatory purpose and effect will not render the “tax”

unconstitutional.

See id.

at 28 & 28 n.4; United States v. Sanchez, 340 U.S. 42, 44-45 (1950)

(upholding confiscatory taxes on marijuana sales); Sonzinsky v. United States, 300 U.S. 506, 513

(1937) (upholding usurious taxes on the sale of sawed-off shotguns in part because “[e]very tax is in

some measure regulatory”).

But cf.

Bailey v. Drexel Furniture (Child Labor Tax Case), 259 U.S. 20,

36-38 (1922) (invalidating a “tax” collected by the Department of Labor that appeared to function as

a direct proscription against the use of child labor);

Kahriger

, 345 U.S. at 38 (Frankfurter, J.,

dissenting) (arguing in dissent that “when oblique use is made of the taxing power as to matters which

substantively are not within the powers delegated to Congress, the Court cannot shut its eyes to what

is obviously, because designedly, an attempt to control conduct which the Constitution left to the

responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane

of a revenue measure”).

U.S. CONST. art. I, § 8, cl. 1;

see

NFIB v. Sebelius, 567 U.S. 519, 563-74 (2012) (Opinion of Roberts,

C.J.) (upholding the individual mandate as a constitutionally-valid exercise of the taxing power).

Grosjean v. American Press Co., 297 U.S. 233, 240-41 (1936);

see

Gerard N. Magliocca,

Huey P.

Long and the Guarantee Clause

, 83 TUL. L. REV. 1, 41 n.183 (2008) (“In

Grosjean v. American

Press Co.

, the Justices struck down the Senator’s advertising tax on newspapers.”). For a discussion

of Long’s sustained attack on the press, see RICHARD C. CORTNER, THE KINGFISH AND THE

CONSTITUTION: HUEY LONG, THE FIRST AMENDMENT, AND THE EMERGENCE OF MODERN

PRESS FREEDOM IN AMERICA (1996).

BHAGWAT,

supra

note 2, at 6-7 (explaining the history behind the ratification conventions in New

York and Virginia).

March 2023]

COMMON LAW CONSTITUTIONALISM

constitution.

As Akhil Amar and his co-author explain, the Antifederalists

“were militant advocates for the inclusion of a bill of rights in the new

Constitution” and were “suspicious of the extraordinary powers that were to

be granted to the federal government by a constitution lacking a bill of rights

that would clearly and unequivocally protect certain rights and freedoms.”

Notwithstanding misgivings about the efficacy of such provisions, the

Constitution’s proponents (notably including James Madison) found it both

politically necessary and expedient to agree to quickly consider and adopt a

bill of rights once the re-organized national government came into operation.

Even though Madison ultimately gave up his opposition to including a bill

of rights in the Constitution, and in fact introduced the first draft of the

amendments that became the Bill of Rights in the House of Representatives

on June 8, 1789,

his arguments against the efficacy of “parchment barriers”

should give a thoughtful person pause. To what extent do the actual words of

a constitutional provision matter? Do those words effectively constrain the

government? Under Madison’s view, written rights guarantees, standing alone,

do not and simply cannot prevent the government from abusing its powers.

See

GERARD N. MAGLIOCCA, THE HEART OF THE CONSTITUTION: HOW THE BILL OF RIGHTS

BECAME THE BILL OF RIGHTS 32-34 (2018) (discussing the compromise that permitted ratification

to proceed and observing that Madison and other proponents of ratification “wisely concluded that

ratification would occur only if the Virginia convention was allowed to propose” a bill of rights that

would be considered expeditiously in the first meeting of Congress);

see also

KELLY, HARBISON &

BELZ,

supra

note 52, at 110 (“Unwilling to appear less solicitous of liberty than their opponents,

Federalists in several states informally agreed to accept subsequent inclusion of a bill of rights as a

condition of ratification.”).

AMAR & ADAMS,

supra

note 21, at 38 (discussing the Antifederalists’ suspicion of the broad powers

given to the federal government).

See

KELLY, HARBISON & BELZ,

supra

note 52, at 121-22 (explaining that “Federalists had won in

several states by promising a series of constitutional amendments embodying a bill of rights,” that

“[m]any members of the first Congress now felt a moral obligation to fulfill these promises,” and,

accordingly, “[i]n September 1789 Congress submitted twelve proposed amendments to the states.”).

1 ANNALS OF CONG. 440-60 (1789) (Joseph Gales Ed., 1834) (explaining the importance of this

amendment to James Madison);

see

MAGLIOCCA,

supra

note 64, at 38 (noting that James Madison

introduced a resolution on June 8, 1789, that set forth the proposed amendments that would come

to comprise the Bill of Rights). Madison had collected a file of proposed amendments from the state

ratifying conventions, as well as state legislatures, and attempted to propose amendments that were

responsive to most of the requests and, in particular, to requests supported by multiple states.

See

AMAR & ADAMS,

supra

note 21, at 39-40;

see also

2 BERNARD SCHWARTZ, THE BILL OF RIGHTS:

A DOCUMENTARY HISTORY 983 (Leon Friedman et al. eds., 1971). As Professors Amar and Adams

explain, “Madison had begun work with a file of nearly one hundred suggested amendments (not

counting duplications) proposed by eight states to be considered for inclusion in a bill of rights.”

AMAR & ADAMS,

supra

note 21, at 40.

See

THE FEDERALIST NO. 84,

supra

note 46, at 513-14 (arguing that “bills of rights, in the sense and

to the extent in which they are contended for, are not only unnecessary in the proposed Constitution,

but would even be dangerous”).

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Instead, he believed that the careful use of structural design elements – notably

including the separation of powers and federalism—in shaping governing

institutions would provide a more durable and efficacious means of securing

individual liberty and safeguarding against tyranny.

Madison’s point seems, at best, rather dubious. If the efficacy of text

depends on whether those who interpret it take it seriously, the efficacy of text

depends on whether its interpreters prove out to be faithful stewards—and not

on the inherent power of the text itself to compel respect and compliance. It

is certainly true that many judges, lawyers, and legal scholars alike invoke

constitutional text as if the words and phrases in the Constitution, Bill of

Rights, and subsequent amendments possess talismanic powers. Even so,

however, one cannot credibly deny that constitutional text does not perforce

have a constraining effect. Consider that China, Cuba, and North Korea all

have written constitutions—none of which effectively limit the government’s

exercise of coercive powers over citizens of those nations.

What’s more,

provisions on structure and institutional design are no more binding on the

institutions of government and not self-evidently less susceptible to being

evaded or ignored than are rights-granting provisions.

Simply put, a written constitution, interpreted and enforced by an

independent judiciary, may devolve into a mere “parchment barrier” if those

holding the reins of government power systematically attack and successfully

destroy the institutional independence of the national courts. Thus, although

The United Kingdom’s constitution reflects this approach—it relies on structure rather than text to

safeguard liberty. The contemporary U.K. lacks a judicially enforceable Bill of Rights and acts of

Parliament are not subject to judicial review by the Supreme Court of the United Kingdom.

See

RONALD J. KROTOSZYNSKI, JR., PRIVACY REVISITED: A GLOBAL PERSPECTIVE ON THE RIGHT TO

BE LEFT ALONE 117-20 (2016) (explaining how the Parliament has the authority to make any laws).

To this day, “the doctrine of parliamentary sovereignty (or supremacy) remains an important, if no

longer absolutely defining, characteristic of the British constitution.”

Id.

at 120.

ROBERT L. MADDEX, CONSTITUTIONS OF THE WORLD vii (3d ed. 2008) (“The governments of

China, Cuba, North Korea, and Vietnam remain single-party dictatorships, and Saudi Arabia remains

an absolute monarchy.”); SUE VANDER HOOK, COMMUNISM 131 (Holly Saari et al. eds., 2011)

(observing that “[t]he constitutions of Cuba, North Korea, and Vietnam all promise similar freedoms

and human rights” but cautioning that “[m]any historians and human rights advocates have

proclaimed Communist constitutions as mere propaganda.”);

see

Tom Ginsburg, Nick Foti & Daniel

Rockmore,

“We the Peoples”: The Global Origins of Constitutional Preambles

, 46 GEO. WASH.

INT’L L. REV. 305, 314 (2014) (noting “the relative importance of the constitution as a symbol, as

opposed to a legally operative text, in socialist countries”); Ronald J. Krotoszynski, Jr.,

The Irrelevant

Wasteland: An Exploration of Why

Red Lion

Doesn’t Matter (Much) in 2008, the Crucial

Importance of the Information Revolution, and the Continuing Relevance of the Public Interest

Standard in Regulating Access to Spectrum

, 60 ADMIN. L. REV. 911, 919-20 n. 27, 936-37 (2008)

(discussing official state censorship in China, Cuba, and North Korea despite constitutional

guarantees that ostensibly safeguard freedom of speech and press in these nations).

March 2023]

COMMON LAW CONSTITUTIONALISM

Hungary, Poland, Russia, and Turkey all have written constitutions that once

possessed more than a modicum of constraining legal force on the executive

and legislative branches of government, these documents largely have fallen

into desuetude as effective checks on the scope of these governments’ powers

today.

In all four countries, the political branches have used constitutionally-

available political controls over the judiciary, including the national

constitutional courts, to effectively negate and cancel the judiciary’s ability to

exercise a meaningful power of judicial review to enforce constitutionally-

protected human rights. Although this has not (yet) happened in the United

States, the fact remains that Congress and the President enjoy constitutional

authority to reduce, or even destroy, the ability of the federal courts to

interpret and enforce the Constitution and Bill of Rights.

Madison’s skepticism about the potential efficacy of written rights

provisions, mere “parchment barriers,” seems justified. The effective

constraining force of constitutional text crucially depends on context, the

specificity of the provisions, the willingness of political actors to respect such

guarantees voluntarily, and the ability and willingness of the courts to enforce

compliance when the political branches disregard constitutional constraints. It

is simply not credible to assert that text inevitably will constrain government

actions on its own and without regard to any consideration of how the

governing institutions within a particular polity interact with each other. One

would be going too far to say text never matters and invariably constitutes a

mere “parchment barrier”; at the same time, however, one cannot simply

assume that constitutional text will, on its own and regardless of context,

effectively secure fundamental human rights on the ground—or, for that

matter, delimit both the structure and function of a nation’s governing

institutions.

At the end of the day, the ability of text to limit the scope of government

action will depend on factors completely independent of the text itself—notably

including the existence of an independent judiciary, the salience of the right

(or institutional constraint) that text safeguards within a particular political

community,

the willingness of the legislature and executive to refrain from

See

Kim Lane Scheppele,

Autocratic Legalism

, 85 U. CHI. L. REV. 545, 549-52, 562, 568, 570 (2018)

(exploring how anti-liberal autocrats deconstruct constitutional curtailments); Kim Lane Scheppele,

The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work

, 26

GOVERNANCE: AN INT’L J. OF LAW, POL’Y, ADMIN. & INSTS. 559, 560-61 (2013) (explaining how

Hungary’s Prime Minister, Viktor Orbán, with 34% of the popular vote from the 2010 election, could

and did fundamentally change the Hungarian constitutional structure).

For example, do citizens expect government to respect a particular fundamental right or are they

more or less indifferent to whether the government burdens or abridges a particular right?

JOURNAL OF CONSTITUTIONAL LAW

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violating a particular right, as well as their willingness to respect judicial

decisions enforcing a particular right, and the willingness of ordinary people

to assert the right—through constitutional litigation if necessary. As the

following part will demonstrate, the First Amendment’s salience in the

contemporary U.S. has far more to do with the general expectation of

expressive freedom within the body politic, the reticence of legislators and

executive branch officers to be seen as engaged in official censorship of the

marketplace of political ideas, and the willingness of courts to issue strong

judgments calling out violations when and if they occur than it does with the

amendment’s text.

The alacrity with which courts move to disallow government efforts at

censorship probably constitutes the most important of these factors.

Aggressive judicial protection of expressive freedom both vindicates and

reinforces the salience of these freedoms within the body politic. Indeed, it

might well be that expressive freedom in the U.S. would not look much

different today if the First Amendment, as such, did not even exist. Australia

and Israel demonstrate that courts vested with a power of judicial review can

and will protect the marketplace of political ideas based on the inexorable link

between free and open public debate and a project of democratic self-

government—and a citizenry’s expectation of a free and open marketplace of

political ideas.

In the United States, we have an express textual provision that

safeguards speech, but it should not be particularly surprising if the formal text

of this provision proves to be less important than the imperative of a free and

open marketplace of political ideas to the use of elections to confer legitimacy

on the government and its institutions.

III. TEXTUALISM AND ORIGINALISM IN CONSTITUTIONAL

INTERPRETATION AND ADJUDICATION: THE FIRST AMENDMENT AS AN

EXEMPLAR OF COMMON LAW CONSTITUTIONALISM IN ACTION

What is true of constitutional text in general seems to hold doubly true of

the First Amendment. As this Part will show—hopefully with convincing

clarity—the scope of expressive freedom in the contemporary United States

has little to do with either the precise language and wording of the First

Amendment or with the “original intent” of the Framers of the Bill of Rights.

Instead, “the First Amendment” almost entirely consists of rules and doctrines

created from whole constitutional cloth by judges engaged in an ongoing

project of common law constitutionalism.

See infra

text and accompanying notes 145 to 171.

March 2023]

COMMON LAW CONSTITUTIONALISM

Despite its iconic status in the contemporary United States,

most federal

judges, most of the time, simply ignore the First Amendment’s actual text. The

full text of the amendment provides:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

Focusing for the moment on the language related to the protection of

expressive, rather than religious freedoms, the Free Speech Clause is the only

provision that routinely does significant doctrinal work today.

Indeed, one

can count the number of modern Supreme Court cases interpreting and

applying the Press, Assembly, and Petition Clauses on two hands.

The Press

Under the “Preferred Position” Doctrine, the Supreme Court has held that the federal courts have a

special obligation to enforce the First Amendment with particular vigilance.

See

Thomas v. Collins,

323 U.S. 516, 530 (1945) (noting “the preferred place given in our scheme to the great, the

indispensable democratic freedoms secured by the First Amendment”); Murdock v. Pennsylvania,

319 U.S. 105, 115 (1943) (“Freedom of press, freedom of speech, freedom of religion are in a

preferred position.”). Writing in

Thomas

, Justice Wiley Rutledge explained that the First

Amendment’s “priority gives these liberties a sanctity and a sanction not permitting dubious

intrusions.”

Thomas

, 323 U.S. at 530. The Supreme Court’s use of the “preferred position”

characterization has waned in more recent opinions, but it still appears from time to time.

See

e.g.

Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 895 (1990) (O’Connor, J., concurring in part

and dissenting in part) (“The compelling interest test effectuates the First Amendment’s command

that religious liberty is an independent liberty,

that it occupies a preferred position

, and that the Court

will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear

and compelling governmental interests of the highest order[.]”) (emphasis added) (internal quotations

omitted) (citing Wis. v. Yoder, 406 U.S. 205, 215 (1972)), superseded by Statute as stated in Ramirez

v. Collier, 142 S. Ct. 1264 (2022).

U.S. CONST. amend. I.

BHAGWAT,

supra

note 2, at 3-6 (explaining the central importance of the Free Speech Clause in

contemporary First Amendment jurisprudence and discussing the Supreme Court’s exclusive

reliance on the Free Speech Clause in constitutional litigation today.

See id.

at 4 (describing the Assembly Clause as “irrelevant” and noting that “it has not been relied

upon by the Supreme Court since 1983!”); JOHN D. INAZU, LIBERTY’S REFUGE: THE FORGOTTEN

FREEDOM OF ASSEMBLY 61-62 (2012) (describing the right to assemble as “largely forgotten” and

observing that “[t]he Court, in fact, has not addressed a freedom of assembly claim in thirty years”);

see also

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 55 (1983) (featuring a

few passing references to the Assembly Clause in a decision that rests primarily on the Free Speech

Clause). Professor Inazu correctly posits that “[w]ith

Perry

, even cases involving protests or

demonstrations could now be resolved without reference to assembly.” INAZU,

supra

, at 62. In point

of fact, that is precisely how things have come to rest today. In the 2020s, the First Amendment

protects collective public protests not as instantiations of the right “to assemble” but rather as just

another form or species of “speech.” The federal courts’ studied neglect of the Assembly Clause

largely corresponds to a concomitant lack of sufficient legal protection for collective speech activity

(aka “assembly”) in public.

See

Tabatha Abu El-Haj,

The Neglected Right of Assembly

, 56 UCLA

L. REV. 543, 564-65 (2009) (discussing and strongly criticizing the Supreme Court’s failure to enforce

and protect the right to assemble as a free-standing and independent expressive freedom).

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Clause has not generated major decisions in decades.

A leading scholar

(arguably

the

leading scholar) of the Assembly Clause characterizes the

provision as “forgotten.”

Lodging a quite similar complaint regarding the Petition Clause, I have

lamented “the Supreme Court’s unfortunate and highly circumscribed

jurisprudence of the Petition Clause, which to date has largely failed to give

the clause much, if any, independent legal significance.”

In fact, the Petition

Clause constitutes “little more than a footnote in modern Supreme Court

jurisprudence.”

At worst, it would be fair to say that the Petition Clause does

not do any meaningful jurisprudential work to secure expressive freedoms in

the contemporary United States; at best, one might credibly posit that it does

very little

such work. Professor Ash Bhagwat shares this view, observing that

“the Petition Clause has disappeared from constitutional litigation.”

He goes

even further, positing that “[p]etitioning is thus dead,” at least “as a tool of

modern American democracy at the national level.”

So, what gives? When federal courts fail to invoke and apply particular

constitutional texts, such as the Petition Clause, the provision effectively

withers and eventually fades away into total and complete desuetude. To be

sure, the language remains in the Constitution—but because it does no

jurisprudential work, it ceases to play any meaningful role in our collective

constitutional imaginations.

For example, with respect to the Petition Clause

today, Professor Bhagwat is undoubtedly correct when he balefully posits that

“few people even know it exists.”

And the Press and Assembly Clauses have

suffered the same fate as the Petition Clause—these First Amendment

RonNell Andersen Jones & Sonja R. West,

The U.S. Supreme Court’s Characterizations of the

Press: An Empirical Study

, 100 N.C. L. REV. 375, 391-92 (2021) (documenting empirically,

explaining, and critiquing the steep decline in references to the First Amendment’s Press Clause in

the Supreme Court’s published decisions from 1820-2015); RonNell Andersen Jones & Sonja R.

West,

The Fragility of the Free American Press

, 112 NW. UNIV. L. REV. 567, 579 (2017).

INAZU,

supra

note 77, at 7-10, 149-53, 185-86.

RONALD J. KROTOSZYNSKI, JR., RECLAIMING THE PETITION CLAUSE: SEDITIOUS LIBEL,

“OFFENSIVE” PROTEST, AND THE RIGHT TO PETITION THE GOVERNMENT FOR A REDRESS OF

GRIEVANCES 156 (2012).

. at 153.

BHAGWAT,

supra

note 2, at 79.

The Guarantee Clause and the Third Amendment both provide useful examples of constitutional

provisions that have fallen largely, if not completely, into a state of desuetude.

See

Baker v. Carr,

369 U.S. 186, 293-98 (1962) (Frankfurter, J. dissenting) (discussing the non-enforcement of the

Guaranty Clause); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (providing a rare, and passing,

reference to the Third Amendment as advancing a privacy interest in the home).

BHAGWAT,

supra

note 2, at 4.

March 2023]

COMMON LAW CONSTITUTIONALISM

provisions have become irrelevant to the scope and meaning of expressive

freedom in today’s United States.

Thus, federal judges routinely ignore the actual text of the First

Amendment—and this behavior should be viewed as problematic for a

judiciary staffed with self-proclaimed “textualists.” After all, ignoring the text

squarely “violates the notion that a court, when interpreting a legal text, should

attempt to give legal effect to all provisions of the text.”

The First

Amendment specifies protection not only for “speech” but also for “the

press,” “assembly,” and “petition.”

And, the elephant in the room—which

everyone seems to ignore—the directive that “Congress” shall “make no law.”

Chief Justice John Marshall made much of the Bill of Rights lacking the

“[n]o state shall” language of Article I, Section 10 (which contains a variety of

express limitations on state governments

) when holding that the provisions of

the Bill of Rights, including the Takings Clause, do not apply to the states.

Marshall observed that “[t]he question thus presented is, we think, of great

importance, but not of much difficulty.”

If the

absence

of “no state shall”

language in various provisions of the Bill of Rights provided a clear and

conclusive answer to its scope of application vis á vis the states, shouldn’t the

presence

of an express scope of application limitation – unique in the entire

Bill of Rights—cnstrain the scope of the provision’s application (namely, to the

legislative branch, and not to the executive or judicial branches)? Despite the

plain wording, today “Congress shall make” for all intents and purposes, on a

de facto basis, actually means “no government entity shall make.”

For the record, I do not advocate for a general reduction in the First

Amendment’s institutional scope of application—as a normative matter,

any

and

all

government rules that seek to squelch speech based on content or

viewpoint cannot be reconciled with a commitment to democratic self-

government. Instead, we should probably ask ourselves whether the First

Amendment can plausibly be invoked as the source of constitutional

protection for particular and differentiated forms of expressive freedom.

KROTOSZYNSKI,

supra

note 80, at 158.

U.S. CONST. amend. I.

Id.

See

U.S. CONST. art. I, § 10.

Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247-51 (1833),

superseded by constitutional amendment

U.S. CONST. amend XIV,

as recognized in

Dobbs v. Jackson Whole Women’s Health Org., 141 S.

Ct. 2228 (2022).

Barron

, supra

note 90, at 247.

See generally

BARENDT,

supra

note 14, at 48-49 (discussing the limited relevance of the First

Amendment’s text to its contemporary legal meaning and significance).

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What is more, if the constitutional protection of expressive freedom really is

not a function of the First Amendment’s actual text, we should probably be

more honest about the First Amendment doctrine resting on judge-made

constitutional common law rather than on the actual text of the amendment.

It would be possible, of course, to pay more attention to the text and also

enhance rather than degrade the scope of expressive freedom. A purposive,

but more textualist, approach to interpreting and applying the First

Amendment would involve giving all of its clauses meaningful work to do in

facilitating the ongoing project of democratic self-government.

It would also

involve what Professor Amar calls an “intratextual” reading of the clauses as

creating a general rule against government censorship of the marketplace of

political ideas.

For the record, this is precisely how a reliable majority of the Supreme

Court has approached the First Amendment since it undertook efforts to

seriously enforce it.

Landmark cases such as

New York Times Co. v.

See

STRAUSS,

supra

note 14, at 9-12, 51-56, 104-11 (opposing crude forms of textualist originalism

and positing that judges, lawyers, and legal academics alike should forthrightly acknowledge the

common law nature of almost all important constitutional law adjudication). Professor Strauss argues

that “[o]ur living constitution includes precedents and traditions that have developed over time” and

that “[i]t is impossible to understand American constitutional law without recognizing as much.”

Id.

at 99.

See

BHAGWAT,

supra

note 2, at 6-9 (arguing that each provision of the First Amendment has

important work to do, at least potentially, in advancing the project of self-government). Professor

Bhagwat is surely correct when he argues that “[i]t is now time to return to those ‘other’ provisions”

in order to facilitate the process of democratic deliberation essential to a successful project of

democratic self-government.

Id.

at 9.

Akhil Reed Amar,

Intratextualism

, 112 HARV. L. REV. 747, 788-802 (1999) (arguing that persuasive

constitutional interpretation requires reading particular clauses dynamically, purposively, and with

careful consideration of the context that other words, phrases, and clauses located within the

document provide). Amar explains that “[p]erhaps the greatest virtue of intratextualism is [that] it

takes seriously the document as a whole rather than as a jumbled grab bag of assorted clauses.”

Id.

at 795.

See

Terminiello v. Chicago, 337 U.S. 1, 4-6 (1949) (invalidating, on First Amendment grounds, a

state court breach of peace conviction because to allow the conviction to stand would be to empower

a so-called “heckler’s veto” because the arrest and conviction stemmed from the audience’s hostile

reaction to the speech); Hague v. Committee for Industrial Organization, 307 U.S. 496, 512-19

(1939) (invalidating, on First Amendment grounds, a New Jersey city ordinance that prohibited labor

organizations from meeting whether on public or private property); Near v. Minnesota

ex rel.

Olson,

County Attorney, 283 U.S. 697, 721-723 (1931 (invalidating, on First Amendment grounds, a

Minnesota statute that imposed liability for the publication of “lewd” or “scandalous” material).

March 2023]

COMMON LAW CONSTITUTIONALISM

Sullivan

and

Brandenburg v. Ohio

are not exercises in close readings of the

First Amendment’s text, of the adoption and ratification debates in Congress

or the state legislatures from June 8, 1789 to December 15, 1791, or the

framing generation’s understanding of what a commitment to the freedom of

expression requires in a democratic republic. The judicially-reconstructed

provision, instead, represents a more general rule against government efforts

to engage in viewpoint- or content-based censorship of the marketplace of

political ideas. And, in turn, this more general, purposive reading of the First

Amendment gives rise to a broader scope of application than the

amendment’s Framers would likely have foreseen—for example, the

protection of commercial speech

and graphic forms of pornography.

100

376 U.S. 254, 269, 270, 282-283,292 (1964) (restricting the scope of Alabama defamation law to

facilitate public criticism of public officials even if such criticism happens to contain unintentional

factual errors).

395 U.S. 444, 447-49 (1969) (per curiam) (holding that Ohio could not punish calls to unlawful action

“except where such advocacy is directed to inciting or producing imminent lawless action and is likely

to incite or produce such action” and explaining that “[a] statute which fails to draw this distinction

impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments”).

See

Cent. Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n, 447 U.S. 557, 566, 571-572 (1980)

(holding that the First Amendment’s Free Speech Clause protects commercial advertising and

applying a form of intermediate scrutiny to government regulations of commercial speech);

see also

Alex Kozinski & Stuart Banner,

Who’s Afraid of Commercial Speech?

, 76 VA. L. REV. 627, 628

(1990) (advocating for the extension of First Amendment protection to commercial speech and

arguing that constitutional protection of commercial speech should be no less rigorous and robust

than the protection afforded to core political speech because the First Amendment exists to protect

and facilitate both speaker and audience autonomy). Arguably, Professor Marty Redish should

receive credit— or blame—for firing the opening shot in the effort to convince the federal courts to

extend robust First Amendment protection to commercial advertising.

See

Martin H. Redish,

The

First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression

, 39

GEO. WASH. L. REV. 429 (1971). Redish’s article set forth a holistic argument favoring the autonomy

of readers, listeners, and viewers—rather than the government—to determine the value of particular

kinds of expression.

See id.

at 433-34, 438-40 (arguing that because “advertising performs a

significant function for its recipients, its values are better viewed with the consumer, rather than the

seller, as the frame of reference” and proposing that a persuasive theory of the freedom of speech

must empower individual citizens to pursue “rational self-fulfillment” that necessarily must

encompass the right to “participate actively in decisions that significantly affect him”) (quoting PETER

BACHRACH, THE THEORY OF DEMOCRATIC ELITISM, A CRITIQUE 98 (1967)) (internal quotation

marks omitted). Redish’s audience-autonomy based theory of the freedom of speech ultimately

carried the day and, accordingly, contemporary First Amendment doctrine affords broad and deep

protection to commercial speech.

100

See

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 827 (2000) (invalidating, on First

Amendment grounds, a federal statute that imposed special, burdensome rules on sexually-explicit

cable programming because the regulation was content-based and did not meet the requirements of

strict scrutiny review, meaning that it did not advance a compelling government interest in a

sufficiently narrowly tailored way);

see also

Amy Adler,

The Perverse Law of Child Pornography

101 COLUM. L. REV. 209, 271-73 (2001) (arguing that First Amendment protection of sexually-

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In sum, the First Amendment provides a poster child example of a

constitutional provision whose literal text does little, if any, serious

jurisprudential work and where judicially-crafted doctrines bear most, and

arguably

all

, of the jurisprudential weight. Indeed, the First Amendment

constitutes a text that is, in many important respects, effectively a

non-text

That the First Amendment is a non-textual text should be a source of

puzzlement—if not downright consternation. After all, textualism has been a

growth stock in U.S. constitutional interpretation since at least the 1980s—and

arguably even earlier, with Justice Hugo L. Black advancing strictly textualist

arguments in both his judicial opinions

101

and in his academic writings while off

the bench.

102

Following in the footsteps of Justice Black, Justice Scalia led a

full frontal assault on constitutional doctrines that overtly and transparently

rely on judicially-crafted legal rules and standards. His concurring opinion in

NASA v. Nelson

103

provides an instructive example.

Nelson

involved a challenge brought by government contractor employees

at Caltech’s Jet Propulsion Lab (JPL) to the federal government’s employee

background check program.

104

The JPL employees objected to background

questions that the employees deemed unduly invasive and a violation of the

explicit speech should encompass not only materials featuring adult actors but also some materials

featuring minors); Andrew Koppelman,

Is Pornography “Speech”?

, 14 LEGAL THEORY 71, 72, 74,

77, 88-89 (2008) (arguing that viewer or reader autonomy adequately justifies First Amendment

protection of sexually-explicit forms of communication in the absence of more convincing proofs that

pornography causes material social harms).

101

See

In re

Winship, 397 U.S. 358, 377-78 (1970) (Black, J., dissenting) (noting that “nowhere in [the

Constitution] is there any statement that conviction of crime requires proof of guilt beyond a

reasonable doubt,” positing that the “document itself should be our guide,” and arguing that “the

words of the written Constitution itself” should be preferred to “the shifting, day-to-day standards of

fairness of individual judges”); Griswold v. Connecticut, 381 U.S. 479, 510 (1965) (Black, J.,

dissenting) (“I like my privacy as well as the next one, but I am nevertheless compelled to admit that

government has a right to invade it unless prohibited by some specific constitutional provision.”);

id.

at 527 (opining that because “Connecticut’s law as applied here is not forbidden by any provision of

the Federal Constitution as that Constitution was written” the federal courts have no power to

invalidate it).

102

Hugo L. Black,

The Bill of Rights

, 35 N.Y.U. L. REV. 865, 867 (1960) (“It is my belief that there

are

‘absolutes’ in our Bill of Rights, and that they were put there on purpose by men who knew what

words meant, and meant their prohibitions to be ‘absolutes.’”);

see

HUGO L. BLACK, A

CONSTITUTIONAL FAITH (1968) (arguing that federal judges must strictly enforce the “absolute”

commands set forth in the Bill of Rights and Fourteenth Amendment and positing that judges cannot

legitimately either add or subtract from the rights expressly set forth in the Constitution itself).

103

562 U.S. 134, 159-61, 165 (2011), (Scalia J., concurring) (“Thirty-three years have passed since the

Court first suggested that the right [to informational privacy] may or may not, exist. It is past time for

the Court to abandon this Alfred Hitchcock line of our jurisprudence.”).

104

Id.

at 138-42.

March 2023]

COMMON LAW CONSTITUTIONALISM

right of informational privacy effectively recognized in 1977.

105

A 7-2 majority

endorsed and reaffirmed the Supreme Court’s assumption of a right of

informational privacy as an aspect of the Due Process Clauses. Justice Samuel

Alito explained that “[w]e assume, without deciding, that the Constitution

protects [an informational] privacy right.”

106

Nevertheless, the majority found

that the federal government’s background check program contained sufficient

substantive and procedural safeguards and, accordingly, did not implicate the

implied right of informational privacy. Given “the protection provided by the

Privacy Act’s nondisclosure requirement, and because the challenged portions

of the forms consist of reasonable inquiries in an employment background

check, we conclude that the Government’s inquiries do not violate a

constitutional right to informational privacy.”

107

The majority’s approach rests comfortably within the common law

tradition.

Griswold

recognized an unenumerated, yet fundamental, right of

privacy derived from penumbras of more specific provisions of the Bill of

Rights. In turn,

Whalen v. Roe

’s de facto recognition of a right of

informational privacy

108

was a logical and entirely foreseeable extension and

application of this more general right of privacy. As Justice Guido Calabresi

105

See

Whalen v. Roe, 429 U.S. 589, 598-600, 605 (1977) (rejecting a privacy-based constitutional

challenge to a New York state law that imposed special record-keeping requirements for certain

highly-addictive prescription medicines because the challenged law included constitutionally-

adequate procedural and substantive safeguards on the collection, storage, and use of the sensitive

personal medical data, cautioning that the Due Process Clauses of the Fifth and Fourteenth

Amendments protect a right to informational privacy, and warning that the government must not

collect or disclose sensitive personal information without a legitimate reason and adequate safeguards

against unwarranted disclosures).

106

Nelson

, 562 U.S. at 138;

see id.

at 147 (“As was our approach in

Whalen

, we will assume for present

purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional

significance.”).

107

Id.

at 159.

108

Whalen

, 429 U.S. at 599, 605-06;

see

NASA v. Nelson, 562 U.S. 134, 138 (2011) (“We assume,

without deciding, that the Constitution protects a privacy right of the sort mentioned in

Whalen

and

Nixon

.”). For a general overview of how the lower federal courts have operationalized the important

dicta in

Whalen

, see Mary D. Fan,

Constitutionalizing Informational Privacy by Assumption

, 14 U.

PA. J. CONST. L. 953, 954, 956 (2012) and Scott Skinner-Thompson,

Outing Privacy

, 110 NW. U.

L. REV. 159, 161 (2015). Professor Skinner-Thompson reports that most lower federal and state

courts have recognized a constitutional right to informational privacy post-

Whalen

See

Skinner-

Thompson,

supra

, at 184. Professor Fan concurs in this assessment.

See

Fan,

supra

, at 956-57;

see

also

Larry J. Pittman,

The Elusive Constitutional Right to Informational Privacy

, 19 NEV. L.J. 135,

156-57, 160 (2018) (arguing that

Whalen

effectively established a constitutional right to informational

privacy and reporting that, even post-

Nelson

, “substantially all of the federal circuit courts of appeals

presently cite

Whalen

as definitively establishing a constitutional right to informational privacy”).

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argues, “the [

Griswold

] Court was, in retrospect, correct” because “[t]he law it

struck down was an anachronism held in place solely by inertia.”

109

A fundamentally different approach is, of course, possible. Judges can

pretend that they do not perform an updating function with respect to

constitutional text. And this is precisely what Justice Scalia, joined by Justice

Thomas, did in

Nelson

. Justice Scalia agreed that the government employees

had failed to state a valid claim—but for a more basic reason. In Scalia’s view,

“[a] federal constitutional right to ‘informational privacy’ does not exist”

110

and,

accordingly, “[l]ike many other desirable things not included in the

Constitution, ‘informational privacy’ seems like a good idea—wherefore the

People have enacted laws at the federal level and in the States restricting

government collection and use of information.”

111

If the Constitution, as

amended, fails to specifically safeguard a particular interest, then the question

is entirely up to Congress and the states to decide as they think best. Justice

Scalia authored numerous opinions making this argument—most commonly

in cases involving substantive due process.

112

In cases involving provisions of the Bill of Rights, Justice Scalia usually

parsed language in a very literal way. For example, the Sixth Amendment’s

Confrontation Clause means that a criminal defendant has the constitutional

right to confront his/her/their accuser quite literally, “face-to-face.”

113

In other

109

CALABRESI,

supra

note 10, at 11.

110

Nelson

, 562 U.S. at 160 (Scalia, J., concurring).

111

. at 159-60.

112

See

e.g.

, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980 (1992)

(Scalia, J., concurring in part and dissenting in part) (opining that “[t]he issue is whether [abortion] is

a liberty protected by the Constitution of the United States” and observing that “I am sure it is not”

because “the Constitution says absolutely nothing about it”). Other members of the Supreme Court,

notably including Justices Samuel Alito and Clarence Thomas, had adopted a similar approach that

privileges text over common law constitutional precedents.

See, e.g.

, Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228, 2243-45 (2022) (opining that “[t]he Constitution makes no express

reference to a right to obtain an abortion, and therefore those who claim that it protects such a right

must show that the right is somehow implicit in the constitutional text” and concluding that because

abortion is neither expressly mentioned in the text nor supported by longstanding historical and legal

tradition,

Roe

and

Casey

should be overruled);

id.

at 2304. (Thomas, J., concurring) (citing United

States v. Carlton, 512 U.S. 26, 42 (1994)) (Scalia, J., concurring in judgement) (opining that “we

should follow the text of the Constitution, which sets forth certain substantive rights that cannot be

taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken

away”) (internal quotations and citations omitted).

113

Coy v. Iowa, 487 U.S. 1012, 1016-20 (1988);

see also

Maryland v. Craig, 497 U.S. 836, 860-61 (1990)

(Scalia, J., dissenting) (objecting that “[s]eldom has this Court failed so conspicuously to sustain a

categorical guarantee of the Constitution against the tide of prevailing current opinion,” arguing that

“[t]he Sixth Amendment provides, with unmistakable clarity, that ‘[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him,’” and categorically

rejecting the “subordination of explicit constitutional text to currently favored public policy”).

March 2023]

COMMON LAW CONSTITUTIONALISM

words, the federal judiciary has a duty to enforce strictly the literal words of

the Sixth Amendment.

What, then, is one to make of Justice Scalia’s failure to strictly enforce the

precise language of the First Amendment? “Congress shall make no law” is

an express limitation on the scope of the First Amendment—yet Justice Scalia

had no objection to applying the Free Speech Clause broadly to executive and

judicial officers. For example, Justice Scalia joined Chief Justice John

Roberts’s majority opinion in

Snyder v. Phelps

114

a case that involved judicial

application of Maryland’s law of tort to permit recovery for an offensive and

outrageous targeted protest of Matthew Snyder’s funeral and burial services.

Snyder was a marine killed while on active duty in Iraq.

115

The legal rule at

issue, which permitted Albert Snyder, Matthew Snyder’s father, to recover for

invasion of privacy, issued from the Maryland state courts—not from Congress

or the Maryland state legislature. Moreover, the Maryland courts and a civil

jury—not legislative officials—enforced and applied the rule in the case.

In fairness, the Supreme Court’s initial consideration of whether the First

Amendment’s Free Speech and Free Press Clauses should apply against the

state governments involved contempt proceedings in the Colorado state

courts.

116

Writing for the majority, Justice Oliver Wendell Holmes, Jr.

reserved the question of whether the First Amendment applies to the state

governments via the Due Process Clause of the Fourteenth Amendment

because, in the majority’s view, the defendant in the contempt proceedings, a

Denver newspaper publisher named Thomas M. Patterson, had failed to raise

a valid First Amendment claim. Holmes explained that:

[E]ven if we were to assume that freedom of speech and

freedom of the press were protected from abridgment on the

part not only of the United States but also of the States, still

we should be far from the conclusion that the plaintiff in error

would have us reach.

117

This result obtained because, in Justice Holmes’s view, the First

Amendment only prohibited prior restraints—not subsequent punishment for

published statements.

118

A more obvious objection—namely that the

114

562 U.S. 443 (2011).

115

. at 447-50.

116

Patterson v. Colorado, 205 U.S. 454 (1907).

117

. at 462.

118

. (observing that “the main purpose of such constitutional provisions is ‘to prevent all such

restraints

upon publications as had been practiced by other governments,’ and they do not prevent

the subsequent punishment of such as may be deemed contrary to the public welfare” and,

accordingly, “subsequent punishment may extend as well to the true as to the false”).

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amendment has no application to judicial contempt proceedings at all—did not

merit mention (or consideration). Patterson’s newspapers had criticized the

Colorado Supreme Court, in published editorials and editorial cartoons,

regarding a case still technically before the bench; the Colorado Supreme

Court’s contempt sanctions, on these facts, did not constitute a prior restraint

but rather punishment after the fact.

119

Holmes simply ignored the relevant limiting language that, at least facially,

appears to cabin the scope of the amendment’s application—namely that

“

Congress

shall make no law.”

120

His interpretation essentially limited the

meaning of the amendment to Blackstone’s rules against prior restraints and

press licensing schemes.

121

This approach, despite giving the amendment a

remarkably narrow scope of potential application, nevertheless also failed to

take its text seriously or read it carefully.

Justice John Marshall Harlan,

122

in dissent, took note of the First

Amendment’s application to “Congress,” observing that the amendment

prohibits “hostile legislation by Congress” but nevertheless concluded that

“neither Congress nor any State since the adoption of the Fourteenth

Amendment can, by legislative enactments

or by judicial action

, impair or

abridge” the right to free speech and a free press.

123

Of course, modern First

Amendment doctrine reflects Harlan’s views in

Patterson

—not those of Justice

Holmes.

It bears noting that Justice Harlan was an out and proud common law

constitutionalist of the first order; he took the view that the Fourteenth

Amendment’s Privileges and Immunities Clause, Due Process Clause, or both

119

See

DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS, 1870-1920, at 130-34, 148-49,

164-65 (1997) (discussing

Patterson

and its legal reasoning in some detail and offering a generally

critical analysis of Justice Holmes’s majority opinion). Professor Rabban explains that “Holmes

believed that Blackstone’s reasoning, developed in the context of the common law of criminal libel,

was particularly applicable to contempts of court.”

Id.

at 134.

120

See

BARENDT,

supra

note 14, at 49 (observing that “[t]he First Amendment literally only applies to

the laws of Congress”). It is odd that Justice Holmes did not consider the amendment’s facially

limited scope in rejecting a claim challenging a judicial contempt proceeding.

121

But cf.

RABBAN,

supra

note 119, at 132 (“A significant number of state court decisions, in contrast

to Justice Holmes’s opinion for the Supreme Court in

Patterson

, vigorously rejected Blackstone and

the English common law as guides to American constitutional provisions on speech.”).

122

The first Justice Harlan is perhaps most well-known for his dissenting opinion in

Plessy

, in which he

opined “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens”

and that “[i]n respect of civil rights, all citizens are equal before the law.”

Plessy v. Ferguson

, 163

U.S. 537, 559 (1896) (Harlan, J., dissenting).

123

Patterson

, 205 U.S. at 464-65 (Harlan, J., dissenting) (emphasis added).

March 2023]

COMMON LAW CONSTITUTIONALISM

secured fundamental rights against the state governments.

124

Thus, for Harlan,

the First Amendment’s text did not matter because the right Patterson had

invoked arose directly from the Fourteenth Amendment—rather than through

literal “incorporation” of the First Amendment against the state

governments.

125

Harlan, unlike today’s ersatz textualists, was an honest and

transparent common law broker. His openness to embracing common law

constitutionalism and common law constitutional rights rendered the precise

text of the First Amendment entirely irrelevant in a case in which the plaintiff

was asserting a free speech and free press claim against a state government. It

also meant that even if the First Amendment’s scope was limited solely to

124

See

Chicago, B. & Q. Railroad Co. v. Chicago, 166 U.S. 226, 235-37, 241 (1897) (finding that due

process imposes a rule against uncompensated takings by state governments). Justice Harlan’s

majority opinion expressly grounds the recognition of a substantive due process right against

uncompensated takings on foundational common law principles.

See

id.

at 236 (“The requirement

that the property shall not be taken for public use without just compensation is but ‘an affirmance of

a great doctrine established by the common law for the protection of private property. It is founded

in natural equity, and is laid down by jurists as a principle of universal law.”). Of course, Harlan’s

view regarding the application of rights set forth in the Bill of Rights to the states did not carry the

day. Instead, the doctrine of selective, but complete, incorporation ultimately prevailed. Under the

doctrine of selective-but-complete incorporation, specific provisions of the Bill of Rights are either

“in” or “out” as against the states and, if incorporated, will then apply identically against the state

governments as they apply against the federal government.

See

Duncan v. Louisiana, 391 U.S. 145,

147-50, 149 n.14 (1968). It bears noting that the second Justice Harlan, John Marshall Harlan II,

vigorously objected to this approach and was a steadfast proponent of the theory of independent, due

process-based fundamental rights arising wholly separately from any specific provision of the Bill of

Rights.

See

Williams v. Florida, 399 U.S. 78, 117-19, 130-33 (1970) (Harlan, J., dissenting). He

consistently opposed both “total incorporation” and “selective incorporation” of particular provisions

of the Bill of Rights in favor of recognizing free standing, and wholly independent, fundamental,

unenumerated rights.

See id.

at 131 n.14 (listing Harlan’s numerous opinions making this argument).

The due process approach to protecting fundamental rights against the states, quite ably advocated

by both the first and second Justice Harlan, is self-evidently an exercise in common law reasoning

and adjudication; it draws directly on the traditions and customs of the people to ascertain the

existence and scope of a fundamental right.

See

Poe v. Ullman, 367 U.S. 497, 541-42 (1961) (Harlan,

J., dissenting).

125

See

e.g.

, O’Neil v. Vermont, 144 U.S. 323, 370-71 (1892) (Harlan, J., dissenting) (recognizing a

substantive due process right to be free of cruel and unusual punishments inflicted by the state

governments). The first Justice Harlan grounded all fundamental rights running against the states in

the Due Process Clause of the Fourteenth Amendment and argued that most rights set forth in the

Bill of Rights, as well as unenumerated yet fundamental rights, applied against the state governments

as either “privileges and immunities” or aspects of “due process of law.”

See

Maxwell v. Dow, 176

U.S. 581, 613-14 (1900) (Harlan, J., dissenting); Hurtado v. California, 110 U.S. 516, 540-43, 547-

50 (1884);

see also

Maxwell, 176 U.S. at 614 (“The Fourteenth Amendment does not in terms refer

to the taking of private property for public use, yet we have held that the requirement of ‘due process

of law’

in that Amendment

forbids the taking of private property for public use without making or

securing just compensation.”).

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Congress, the Due Process liberty interest in expressive freedom under the

Fifth Amendment’s Due Process Clause was not.

126

The important point, in both the Holmes and Harlan

Patterson

opinions,

is that even in the Supreme Court’s first consideration of the First

Amendment’s potential scope of application to the state governments,

“Congress shall make no law” received virtually no consideration as creating a

potential limit on the amendment’s scope of application. In Holmes’s case,

the omission seems like a blown call, whereas in Harlan’s case, it is simply the

natural outgrowth of his overall approach to recognizing and protecting

fundamental rights under the rubric of “due process of law” under the Due

Process Clauses of both the Fifth and Fourteenth Amendments. Harlan,

unlike Holmes, could disregard the specific wording of the First Amendment

in favor of a common law approach that took the specific language of the Bill

of Rights as reflecting deeply-seated human rights commitments, but which

also did not construe the absence of specific constitutional language as

foreclosing a right running against either the federal or a state government.

127

The First Amendment’s actual words have been irrelevant since before the

Supreme Court clearly held that the amendment applied to the states via the

Due Process Clause of the Fourteenth Amendment in 1931.

128

To be sure,

the Supreme Court, from the 1930s to the 1970s, did make more regular

efforts to give meaningful effect to the Press,

129

Assembly,

130

and Petition

Clauses.

131

By the 1980s, however, the First Amendment had been reduced to

the Free Speech Clause—as a kind of catch-all provision for any and all forms

of expressive freedom.

132

126

Hurtado

, 110 U.S. at 547-48 (Harlan, J., dissenting).

127

. at 542-58.

128

Stromberg v. California, 283 U.S. 359, 368-69 (1931); Near v. Minnesota, 283 U.S. 697, 723 (1931);

see

RABBAN,

supra

note 119, at 373-75 (discussing the incorporation of the First Amendment against

the state governments under the Due Process Clause of the Fourteenth Amendment).

129

See, e.g.

, Mills v. Alabama, 384 U.S. 214 (1966); Murdock v. Pennsylvania, 319 U.S. 105 (1943);

Grosjean v. American Press Co., 297 U.S. 233 (1936).

130

See, e.g.

, Edwards v. South Carolina, 372 U.S. 229 (1963); Thomas v. Collins, 323 U.S. 516 (1945).

131

See, e.g.

, California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972); Mine Workers

v. Pennington, 381 U.S. 657 (1965); NAACP v. Button, 371 U.S. 415 (1963); Eastern R.R. Presidents

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). For a helpful discussion and overview

of the

Norerr-Pennington

Doctrine, which exempts petitioning of legislative or executive branch

officials, even via mass media or billboard public campaigns, from serving as a basis for imposing

antitrust liability on the speaker, as an incident of the First Amendment’s Petition Clause, see Joseph

B. Maher, Comment,

Survival of the Common Law Abuse of Process Tort in the Face of a

Noerr-

Pennington

Defense

, 65 U. CHI. L. REV. 627, 630-33 (1998).

132

See

BHAGWAT,

supra

note 2, at 3-6; INAZU,

supra

note 77, at 61-62.

March 2023]

COMMON LAW CONSTITUTIONALISM

Perry Education Association

133

decided in 1983, the Justices began

using the Free Speech Clause as a synecdoche for the entire First Amendment.

After

Perry

, the First Amendment’s other clauses were largely judicially

orphaned and ceased to generate important new protections for expressive

freedom. As Professor John Inazu explains, “[w]ith

Perry

, even cases

involving protests or demonstrations could now be resolved without reference

to assembly.”

134

Moreover, the Justices’ abandonment of the Press, Assembly,

and Petition Clauses went without mention, explanation, or justification. In

First Amendment jurisprudence, the new normal became “All Free Speech

Clause, all the time.”

If one were writing a constitutional free speech guarantee today, it might

have made sense to provide only for the protection of “speech.” However,

this is not what the Framers of the First Amendment actually did – or said.

Nor was such a limited text ratified by the state legislatures between 1789 and

1791. The Supreme Court has essentially re-written the First Amendment

and streamlined it; the text is now largely irrelevant to constitutional protection

for expressive activities in the contemporary United States. What’s more, the

interpretation and application of the Free Speech Clause is not (at all) tethered

to the Framers’ original understanding of that clause’s scope or meaning.

135

Of course, if the text is simply a place holder for the body politic’s sense

of justice, we should expect the text to be merely a starting point, not the

ending point, in the adjudication of constitutional rights.

136

With the passage

of time, one would predict that if the plain meaning of the constitutional text

departed from the community’s values and attitudes regarding the appropriate

scope of a particular fundamental right,

137

the text would come to play a less

133

Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-47 (1983) (framing the expressive

freedom claim at bar

solely

in terms of the Free Speech Clause and ignoring both the Assembly and

Petition Clauses as a potential basis for decision);

see

INAZU,

supra

note 77, at 61 (“In 1983, the

Court swept the remnants of assembly within the ambit of free speech law in

Perry Education

Association v. Perry Local Educators’ Association

.”)

134

INAZU

, supra

note 77, at 62.

135

See supra

text and accompanying notes 74 to 101.

136

Hurtado v. California, 110 U.S. 516, 547-50 (1884) (Harlan, J., dissenting) (positing that the express

inclusion of a particular right in the Bill of Rights

does not

mean and

should not

mean that it is not

constitutive of “due process” or the antecedent and synonymous clause in Magna Carta, the “law of

the land”).

137

For example, the British North America Act of 1867 (BNA), Canada’s constitution, used exclusively

male pronouns (“he”) to describe both the qualifications for serving in the Senate and also the

conditions that would justify removal of a sitting senator from office. BNA §§ 23 & 31. The question

arose if the plain text of these provisions precluded women from serving in the federal Senate.

Adopting a “living tree” approach, the Privy Council, Canada’s highest appellate court at the time,

departed from the BNA’s plain text, original understanding, and consistent practice from 1867 to

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and less important role in the judicial articulation and enforcement of that

right. After a brief comparative law detour that demonstrates this

jurisprudential phenomenon is not limited to the United States, the Article

will provide a sustained argument in favor of the virtues of practicing common

law constitutionalism, as opposed to originalist-textualist constitutionalism.

138

IV. THE PRESENCE OR ABSENCE OF EXPRESS CONSTITUTIONAL FREE

SPEECH GUARANTEES DOES NOT MATTER MUCH—IF AT ALL—IN OTHER

CONSTITUTIONAL DEMOCRACIES

It probably would go too far to say that constitutional text is inevitably and

invariably irrelevant—plainly government actors, including but not limited to

judges, feel obliged to consider constitutional text. But the effect of text on

the operationalization of human rights, including but not limited to expressive

freedom, is non-linear, complex, and varies from legal system to legal system.

139

Thus, the problem with textual analysis merely begins with understanding the

substance of rights. It extends to rules and procedures associated with the

adjudication of such rights—and even whether any effective enforcement

mechanisms exist for asserting constitutionally protected rights.

140

1930, and held that the use of male pronouns

did not

preclude women from serving as senators.

See

Edwards v. Attorney General of Canada, [1930] AC 124, 136 (PC) (appeal taken from S.C.C.) (Lord

Sankey) (“The British North America Act planted in Canada a living tree capable of growth and

expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.”). In

so doing, it overruled the contrary holding of the Supreme Court of Canada. It was highly likely,

given the absence of female suffrage in both the United Kingdom and Canada in 1867, that the use

of male pronouns in the BNA was not accidental but rather intentional. Even so, the Privy Council

was quite right to “update” the BNA by reading the language inclusively rather than literally—and

without regard to the original intent of the drafters of the BNA.

See id

. (“Their Lordships do not

conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of

the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation

so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own

house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs.”);

see

also

CALABRESI,

supra

note 10, at 2-3, 163-71, 178-81 (arguing that courts should exercise an

“updating” power over statutes “as if they were no more and no less than part of the common law”).

138

See infra

text and accompanying notes 174 to 230.

139

The

process

of constitutional adjudication also varies widely from place to place and clearly affects

the effective scope of constitutional rights.

See

Vicki C. Jackson,

Constitutional Law in an Age of

Proportionality

, 124 YALE L.J. 2680, 3094 (2015) (discussing the doctrine of proportionality, which

many foreign constitutional courts use to provide methodological, structured, and transparent

balancing of individual rights against government claims that abridge or deny a particular

constitutional right on the facts presented, as both necessary and justified).

140

See

Mark V. Tushnet,

Interpreting Constitutions Comparatively: Some Cautionary Notes, with

Reference to Affirmative Action

, 36 CONN. L. REV. 649, 650-55 (2004) (arguing that the substance

of constitutional rights, such as freedom of speech or equality, is often entwined with institutional

March 2023]

COMMON LAW CONSTITUTIONALISM

Nevertheless, in the United States, we reflexively assume that constitutional

text matters—that it has a constraining force on legal actors, that its authors had

some sort of discernable intent, and that the intent of the text’s Framers should

have some contemporary relevance when interpreting and applying the text.

141

Other legal cultures, however, take a radically different view on the relevance

of both the constitutional text and original intent as a constraint on the scope

and meaning of a constitutional provision.

For example, for almost 100 years, the Supreme Court of Canada has

generally ignored textualist originalism and instead interpreted constitutional

text in a dynamic and purposive fashion. Under the “living tree” model of

constitutional interpretation, text serves merely as a starting point, not the

ending point, in analyzing, defining, and applying constitutional rights.

142

What

is more, the Supreme Court of Canada seems quite comfortable embracing

common law constitutionalism.

143

Yet, in the United States, textualist

constraints that delimit how courts go about protecting those rights). Professor Tushnet cautions that

when engaging in comparative constitutional analysis, one “must be aware of the way in which

institutional and doctrinal contexts limit the relevance of comparative information.”

Id.

at 662.

Moreover, “constitutional systems are

systems

, so that even if one has a good grasp on the way another

constitutional system deals with a particular problem, one might not fully understand the way in which

that solution fits together with other aspects of the constitutional system.”

Id.

at 663. In sum, it is

not enough to simply study substantive constitutional rights, even in a careful and contextual way,

without also paying some attention to issues of the institutional design and operation of the polity’s

governing institutions (and particularly the domestic courts).

141

Bostock v. Clayton County, Ga., 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute

give us one answer and extratextual considerations suggest another, it’s no contest. Only the written

word is the law, and all persons are entitled to its benefit.”). Justice Neil Gorsuch’s approach to a

textualist analysis of Title VII drew a stinging rebuke from Justice Alito. Alito objected that Gorsuch’s

approach “is like a pirate ship” because “[i]t sails under a textualist flag, but what it actually represents

is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should

‘update’ old statutes so that they better reflect the current values of society.”

. at 1755-56 (Alito, J.,

dissenting).

142

Edwards v. Attorney General of Canada, [1930] AC 124, 136, 143 (PC) (appeal taken from S.C.C.)

(holding that the term “person” encompasses both men and women for purposes of federal Senate

appointments and explaining that the framers of the British North America Act 1867 (BNA Act)

“planted in Canada a living tree capable of growth and expansion within its natural limits”);

see also

PETER W. HOGG, 2 CONSTITUTIONAL LAW OF CANADA § 36.8(a) (5th ed. 2007) (discussing the

Supreme Court of Canada’s adoption of the “living tree” metaphor to describe its approach to

interpreting the Canadian Charter of Rights and Freedoms and the BNA Act). The Supreme Court

of Canada has taken pains to emphasize that the “living tree” approach flatly rejects originalism as an

interpretative approach: “[t]he ‘frozen concepts’ reasoning [original intent] runs contrary to one of

the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a

living tree, which, by way of progressive interpretation, accommodates and addresses the realities of

modern life.” Reference Re Same Sex Marriage, [2004] 3 S.C.R. 698, para. 22 (Can.).

143

See

Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, paras. 70, 147 (Can.) (invoking s. 7

of the Canadian Charter of Rights and Freedoms, which expressly safeguards “life, liberty, and

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originalism has retained an outsized role in constitutional interpretation—both

in the federal courts and in popular commentary on the Constitution and Bill

of Rights.

144

A pattern of limited textual relevance to the scope and meaning of

constitutional rights repeats in other jurisdictions. Australia provides a salient

example. In Australia, the drafters of the federal constitution made a

conscious and intentional decision not to include a written Bill of Rights.

145

Drawing on the British tradition of parliamentary sovereignty, they instead

created a federal system and divided governing powers between the six states

and the federal government. The Constitution does guarantee a democratic

form of government and the right to vote—but it contains only two specifically

enumerated rights-granting provisions. One guarantees the equal treatment of

non-residents by the states

146

—essentially an analogue to the Privileges and

Immunities Clause of Article IV, Section 2.

147

The other prohibits religious

establishments, religious oaths for public office, and protects the free exercise

of religion.

148

Australia’s Commonwealth Constitution does not contain any

provisions safeguarding the freedom of speech, press, assembly, or petition.

security of the person” and invalidating a federal ban on physician assisted suicide as an unreasonable

constraint on “security of the person”).

144

See

SCALIA,

supra

note 22, at 39-47 (arguing against dynamic or “living tree” interpretation of the

Constitution and positing that it empowers judges to impose their own moral preferences over those

of elected legislators who enjoy a democratic imprimatur to make social policies);

see also

ROBERT

H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 251-59 (1990)

(positing that

only

textualist originalism can constrain judges from imposing their own moral

preferences and therefore is the only legitimate approach to interpreting and applying constitutional

text).

145

LUKE BECK, AUSTRALIAN CONSTITUTIONAL LAW: CONCEPTS AND CASES 18, 24-25 (2020);

see

Scott Stephenson,

Rights Protection in Australia

, in THE OXFORD HANDBOOK OF THE

AUSTRALIAN CONSTITUTION 906-15 (Cheryl Saunders & Adrienne Stone eds., 2018) (discussing in

some detail the conscious decision to omit a bill of rights from the Australian Constitution). Professor

Stephenson explains that “[t]he initial decision not to include a bill of rights in the Constitution was

grounded in a belief in the capacity of representative democracy to protect rights and a fear that a bill

of rights would prevent the States from enacting racially discriminatory legislation.” Stephenson,

supra

, at 906. Thus, although the Australian drafters borrowed many design elements from the U.S.

Constitution, they declined to include a written bill of rights.

See

BECK,

supra

, at 18 (“While they

rejected the presidential system of government and a comprehensive Bill of Rights, in other respects

they found in the American system, what Sir Owen Dixon described as ‘an incomparable model.’”).

146

AUSTRALIAN CONST. § 117 (“A subject of the Queen, resident in any State, shall not be subject in

any other State to any disability or discrimination which would not be equally applicable to him if he

were a subject of the Queen resident in such other State.”).

147

U.S. CONST. art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.”).

148

AUSTRALIAN CONST. § 116 (“The Commonwealth shall not make any law for establishing any

religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion,

March 2023]

COMMON LAW CONSTITUTIONALISM

Nevertheless, the High Court of Australia (HCA), Australia’s institutional

equivalent of the Supreme Court of the United States, in the early 1990s

discovered an “implied freedom” of political and governmental speech.

149

The

argument—an entirely plausible one—posits that it is simply not possible to

have free and fair elections without citizens enjoying the ability to engage in a

process of democratic deliberation. As the Justices recently have explained,

“[t]he constitutional basis for the implication in the

Constitution

of a freedom

of communication on matters of politics and government is well settled.”

150

Indeed, “[t]he freedom is of such importance to representative government

that any effective statutory burden upon it must be justified.”

151

Thus, the (intentional) omission of an express free speech provision in

Australia’s Commonwealth Constitution of 1901 has not left freedom of

expression to the whim of the federal and state legislatures. Even so, however,

Australia’s implied right is considerably weaker than the Free Speech Clause

of the First Amendment.

First, the HCA consistently has held that the implied freedom does not

constitute an individual constitutional “right” that exists to facilitate personal

autonomy.

152

Instead, it “operates as constitutional restriction on legislative

and no religious test shall be required as a qualification for any office or public trust under the

Commonwealth.”).

149

Australian Capital Television Pty. Ltd. v. Commonwealth (1992) 177 CLR 106 (Austl.); Nationwide

News Pty. Ltd. v. Wills (1992) 177 CLR 1 (Austl.). The High Court has regularly heard and decided

cases involving the implied freedom of political and governmental communication since recognizing

the implied right in 1992.

See,

e.g.

, LibertyWorks Inc. v. Commonwealth (2021) HCA 18 (Austl.);

Comcare v. Banerji (2019) HCA 23 (Austl.). That said, however, at least one member of the High

Court rejects the recognition of fundamental rights, including freedom of speech, through

implications from other constitutional clauses.

See

LibertyWorks

(2021) HCA 18, at para. 249

(Steward, J., concurring) (opining that “it is arguable that the implied freedom does not exist” and

positing that the implied freedom “may not be sufficiently supported by the text, structure and context

of the Constitution”). Justice Simon Steward argues that “because of the continued division within

this Court about the application of the doctrine of structured proportionality, it is still not yet settled

law.”

Id.

At present, however, these views do not command a majority at the High Court. A clear

and strong majority stands by the precedents recognizing the implied freedom of political and

governmental communication; on the other hand, disagreement exists among the justices over the

precise constitutional standard of review that should govern in free speech cases.

150

LibertyWorks

(2021) HCA 18, at para. 44.

151

at para. 45.

152

. at para. 44.

But cf.

MARTIN H. REDISH, THE ADVERSARY FIRST AMENDMENT: FREE

EXPRESSION AND THE FOUNDATIONS OF AMERICAN DEMOCRACY 31-33, 71-74 (2013) (arguing

that free expression can best be understood as empowering individuals to seek out information and

ideas that enable them to be well-informed and engaged citizens). Professor Redish posits that “[t]he

adversary theory of democracy emphasizes individual autonomy as theoretically and practically

interwoven into the process of collective self-government.”

. at 4-5. Redish’s theoretical framework

JOURNAL OF CONSTITUTIONAL LAW

[Vol. 25:1

power.”

153

These doctrinal features have important, and quite negative,

implications for the scope of the implied freedom of political and

governmental speech. It only applies to speech that is clearly related to politics

and government (and not to speech that relates to the arts, literature, science,

to commercial speech, or to sexually explicit speech).

154

In this respect, the

Australian implied freedom has more in common with Judge Robert Bork’s

proposed approach to the First Amendment than to current free speech

jurisprudence in the United States.

155

Second, the burden on the government to justify restrictions on the

implied freedom is relatively modest. To survive judicial scrutiny, a law that

abridges free speech need merely have a “legitimate” purpose (meaning that it

must be “compatible with the constitutionally prescribed system of

government”), be “proportionate to the achievement of that purpose”

(meaning the law constitutes “a rational response to a perceived mischief”),

and be “necessary and adequate in its balance” (meaning that it possesses a

reasonable fit between its objectives and the means used to achieve them).

156

Most federal and state laws that burden speech—if tailored at all—easily survive

this relatively weak form of judicial scrutiny.

One might posit that the general weakness of Australia’s constitutional

protection of freedom of expression demonstrates the importance, rather than

the irrelevance, of constitutional text. After all, if freedom of speech enjoyed

express constitutional protection under the Commonwealth Constitution of

1901, perhaps the HCA would more vigorously safeguard it. On the other

hand, Australia’s Constitution

does contain

an express guarantee of the free

exercise of religion—section 116.

157

This has not led to more vigorous judicial

protection of the free exercise of religion. The HCA consistently has

is essentially the mirror-image of the High Court’s approach; he explains that “[a]dversary theory thus

contrasts sharply with exclusively participatory versions of democratic theory because those theories

systematically marginalize pure exercises of individual autonomy, considering individual autonomy

to be relevant to democracy only to the extent it facilitates collective autonomy.”

. at 11.

153

LibertyWorks

(2021) HCA 18, at para. 44.

154

See

Stone,

supra

note 41, at 847-49 (discussing and explaining the limited scope of Australia’s

implied freedom of political and governmental communication);

see also

Adrienne Stone,

Rights,

Personal Rights and Freedoms

, 25 MELB. U. L. REV. 374, 378–89 (2001) (analyzing and critiquing

the High Court of Australia’s failure to define protected speech clearly and explaining the limited,

but ambiguous, scope of the implied freedom of political and governmental communication).

155

See

Robert H. Bork,

Neutral Principles and Some First Amendment Problems

, 47 IND. L.J. 1, 28

(1971) (arguing that “[t]he notion that all valuable types of speech must be protected by the first

amendment confuses the constitutionality of laws with their wisdom” and positing that protection of

non-political expression “rests, as does freedom for other valuable forms of behavior, upon the

enlightenment of society and its elected representatives” which is “hardly a terrible fate”).

156

LibertyWorks

(2021) HCA 18, at paras. 45-46.

157

AUSTRALIAN CONST. § 116.

March 2023]

COMMON LAW CONSTITUTIONALISM

interpreted this express right quite narrowly and rejected most free exercise

claims.

158

Indeed, despite the existence of section 116, Australian legal academics

have suggested that framing free exercise claims as more generic “speech”

claims might be a more effective strategy for securing exemptions from neutral

laws of general applicability that burden religiously-motivated conduct.

159

This

would suggest that judicial enforcement of a particular right in Australia is not

really a function of whether or not the right is expressly set forth in the

Commonwealth Constitution. Thus, an express constitutional provision,

which mirrors another provision of the First Amendment, has not been any

more efficacious than the “implied freedom” that serves to protect political

and governmental speech—and indeed is arguably

weaker

than the judicially-

crafted implied freedom of political and governmental communication. In

sum, the scope and vibrancy of a fundamental right in Australia does not seem

to depend much, if at all, on whether or not it has been codified.

Whereas Australia has a written constitution, which came into force in

1901, Israel lacks a formal constitution as such. Instead, the Supreme Court

of Israel has held that a number of statutory enactments, termed “Basic Laws,”

enjoy quasi-constitutional status.

160

In addition to making it procedurally more

difficult to amend or abolish these statutes, by requiring an absolute majority

in the Knesset (Israel’s parliament), rather than a majority of a quorum to

amend or repeal them, the Supreme Court of Israel also has found that

freedom of speech and equality are “implied” fundamental rights that are

essential corollaries of Israel’s commitment to democratic self-government.

161

158

Section 116 has been limited in its scope to legislation (as opposed to executive and judicial actions)

and, even with respect to legislation, provides very limited protection against neutral laws of general

applicability.

See

Mitchell Landrigan,

Can the Implied Freedom of Political Discourse Apply to

Speech By or About Religious Leaders?

, 34 ADELAIDE L. REV. 427, 433 (2014) (“The High Court

has not given a broad interpretation to the free exercise provision or s 116 more generally.”).

159

See

. at 432-35.

160

GIDEON SAPIR, THE ISRAELI CONSTITUTION: FROM EVOLUTION TO REVOLUTION 54-58, 69-71

(2018) (discussing the judicial recognition of Basic Laws and conveying limited entrenchment on

these statutory enactments).

161

See id

. at 58-66, 132, 144-46 (discussing these implied freedoms, including the freedom of speech

and explaining that the Supreme Court of Israel embraced “[a]n expanded reading of the right to

dignity as including such rights as equality, freedom of speech, and freedom of religion” and brought

these rights into Israeli law “through the window” meaning by judicial fiat, rather than the “front

door,” meaning via legislative recognition);

. at 19-29, 63-64 (discussing the implied principle of

equality in conjunction with several other dignity-based rights, including freedom of speech and

religion);

see also

Amal Jamar,

The Hegemony of Neo-Zionism and the Nationalizing State in Israel

– The Meaning and Implications of the Nation-State Law

in DEFINING ISRAEL: THE JEWISH STATE,

JOURNAL OF CONSTITUTIONAL LAW

[Vol. 25:1

Professor Neta Ziv observes that “[b]asic rights and liberties such as

freedom of assembly and speech, equality, and freedom of religious worship

became part of Israel’s unwritten constitutional properties.”

162

Equality and

speech rank among the most important of these implied human rights.

163

Rather than judicial usurpation of legislative powers, Israeli judges argue that

the implication of fundamental rights is essential to the legitimacy of a

democratic state. Thus, as former Chief Justice of the Supreme Court of Israel

Aharon Barak posits, “[t]here is no (real) democracy without recognition of

values” and these implied values are “based on human dignity, equality, and

tolerance.”

164

Since recognizing an implied freedom of speech in

Kol Ha’Am,

165

decided

in 1953, as an implication of Israel’s commitment to democratic self-

government, the Supreme Court of Israel has issued numerous precedents

over the years vindicating the implied freedom of speech.

166

Avi Weitzman, a

U.S. commentator, observes that “[w]ithout a constitution to rely on, Israeli

judges have had to ground free speech jurisprudence in Israel’s democratic

nature.”

167

The Israeli courts have repeatedly invalidated government policies

DEMOCRACY, AND THE LAW 153-71 (Simon Rabinovitch ed., 2018) (discussing the implied

principle of equality and judicial enforcement of it). For a discussion of the Supreme Court of Israel’s

bold assertion of a power of judicial review to enforce implied constitutional rights, including speech

and equality, see SAPIR,

supra

note 160, at 31-48, 109-51.

162

Neta Ziv,

Combining Professionalism, Nation Building and Public Service: The Professional Project

of the Israeli Bar 1928-2002

, 71 FORDHAM L. REV. 1621, 1639 (2003).

163

Former Chief Justice Aharon Barak has explained that “[e]quality is one of the State of Israel’s

fundamental values.” HCJ 6698/95 Ka’adan v. Israel Land Administration, 54(1) PD 258 (2000)

(Isr.). However, freedom of speech is no less essential than equality in Israeli human rights

jurisprudence. Aharon Barak,

Foreword: A Judge on Judging: The Role of a Supreme Court in a

Democracy

, 116 HARV. L. REV. 19, 85-93 (2002) (discussing “fundamental principles” of a

democracy, notably including equality of all persons and freedom of expression); Aharon Barak,

Human Rights in Israel

, 39 ISR. L. REV. 12 (2006) (discussing the normative basis for judicial

protection of fundamental principles of justice in Israel, including freedom of speech and equality);

Aharon Barak,

The Role of a Supreme Court in a Democracy, and the Fight Against Terrorism

, 58

U. MIA. L. REV. 125, 127 (2003) (explaining that “[r]eal democracy is not just the law of rules and

legislative supremacy” but instead “is a multidimensional concept” that includes “the supremacy of

values, principles and human rights”).

164

Barak,

supra

note 163, at 127.

165

HCJ 73/53 Kol Ha’am v. The Minister of Interior, 7(2) PD 871,

translated in

SELECTED JUDGMENTS

OF THE SUPREME COURT OF ISRAEL 90 (1953). Other relevant cases establishing an implied

freedom of speech as a necessary element of democratic self-government include HCJ 14/86 Laor v.

Theatre Review Board, 41(1) PD 421; and HCJ 680/88 Schnitzer v. Chief Military Censor, 42(4) PD

617. In 1962, the Supreme Court of Israel recognized an implied constitutional right to freedom of

conscience.

See

HCJ 262/62 Peretz v. Local Council of Kfar Shmaryahu, 16(3) PD 2101.

166

Avi Weitzman,

A Tale of Two Cities: Yitzhak Rabin’s Assassination, Free Speech, and Israel’s

Religious-Secular Kulturkampf

, 15 EMORY INT’L L. REV. 1, 25 n.98 (2001) (listing relevant cases).

167

. at 24.

March 2023]

COMMON LAW CONSTITUTIONALISM

that trench too deeply on freedom of expression: “A broad range of speech is

protected for a variety of governmental, social, and personal functions.”

168

Speech is integral to the maintenance of a functioning democracy; in

consequence, the judiciary must protect it against government abridgments

through the power of judicial review.

169

To borrow the catch-phrase of the “Jurassic Park” movies, even in the

absence of a constitutional text, speech, like nature, “finds a way,” at least in

some jurisdictions. Yet, we also see the opposite trend in some places.

Otherwise democratic polities that feature a written constitution with an

entrenched bill of rights, including a guarantee of freedom of expression, read

the free speech clause in a limited or minimalist way that permits the

government to censor even core political speech. Spain, for example,

maintains and has regularly enforced statutory provisions that criminalize

public criticism of the monarchy (including members of the royal family

beyond the sovereign).

170

Lèse-majesté laws represent, quite literally, a form of

seditious libel, a kind of criminal speech regulation long rejected in the United

States as fundamentally incompatible with freedom of political speech.

171

To be sure, there are places where the constitutional text seems to tell

readers something useful about the scope and relative importance of the

freedom of speech. Germany and South Africa provide relevant examples.

Although, given that both nations feature relatively recent constitutions, it may

simply be that these texts better correspond with prevailing social norms than

constitutions of less recent vintage. In other words, the counter-examples of

constitutions where the text does seem to prefigure the scope and vibrancy of

168

Id.

at 25.

169

Aharon Barak,

Freedom of Speech in Israel: The Impact of the American Constitution

, 8 TEL AVIV

U. STUD. L. 241, 246-47 (1988).

170

CÓDIGO PENAL [C.P.][CRIMINAL CODE] §§ 490-491 (Spain);

see

Clarisse Loughrey,

Rapper Jailed

for Three and Half Years After Criticising the Royal Family

, THE INDEPENDENT (London, UK)

(Feb. 24, 2018), https://www.independent.co.uk/arts-entertainment/music/news/ rapper- jailed-lyrics-

spanish-royal-family-valtonyc-josep-miquel-arenas-beltran-a8226421.html [https://perma.cc/SYU4-

LRJS];

see generally

OSAC, Lèse Majesté: Watching What You Say (and Type) Abroad,

https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5

[https://perma.cc/WZU3-9JNJ] (“Several European monarchies, including Belgium, Denmark,

Sweden, Spain, Netherlands, and Monaco still have

lèse majesté

laws on the books. The laws tend

to carry harsher criminal penalties than other types of defamation and insult laws, though the charges

are typically not as extreme as in other regions of the world.”).

171

See

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-56 (1988) (observing that criticizing political

figures is among the most important forms of speech protected by the First Amendment); New York

Times Co. v. Sullivan, 376 U.S. 254, 268-86 (1964) (noting that the ability of citizens to openly

criticize public officials constitutes a core purpose of the First Amendment and is fundamental to the

process of democratic self-government).

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[Vol. 25:1

expressive freedoms might simply better reflect prevailing social norms about

how a commitment to freedom of speech should be operationalized in a

democratic polity.

172

It is not that the text better constrains the government and the courts—

rather, the text itself is simply in stronger and better accord with the prevailing

cultural norms that are widely shared within the citizenry, which relieves local

judges from the felt necessity of “updating” constitutional text through the

process of common law constitutionalism. When text aligns with socio-legal

culture, text appears to do more meaningful work than when a constitutional

text either dates back to a different time and place or when a new text attempts

to establish a norm that does not fit very well with prevailing constitutional

understandings within the body politic of what a meaningful commitment to

expressive freedom requires a just society to tolerate.

In either case, however, it is shared human rights values within the

community, and not the constitutional text, that is doing the real work. This

explains why the First Amendment’s text fails to define much, if at all, the

metes and bounds of expressive freedom in the contemporary United States.

It also explains why the constitutional courts in Australia and Israel have

recognized an implied freedom of speech, derived from constitutional and

statutory guarantees of free and fair elections, despite the utter and complete

absence of constitutional text guaranteeing freedom of expression.

172

It bears noting, however, that South Africa’s Constitutional Court has been more skeptical of hate

speech regulations than the text of the 1996 Constitution might warrant, given the express elevation

of dignity, equality, and human freedom as the nation’s “foundational” constitutional values. ERROR!

MAIN DOCUMENT ONLY.S. AFR. CONST., 1996, Act No. 108, § 1(a);

see id

. at § 7(1) (providing that

“[t]his Bill of Rights is a cornerstone of democracy in South Africa” and “enshrines the rights of all

people in our country and affirms the democratic values of

human dignity, equality and freedom

”)

(emphasis added). The free speech provision, Section 16, expressly excludes from protection “Error!

Main Document Only.propaganda for war,” “incitement of imminent violence,” and “advocacy of

hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause

harm.”

. at § 16(2)(a) to (c). Moreover, the equality provision, Section 9, requires the government

to advance and security the equality of all persons.

See id

. at § 9(4) (“National legislation must be

enacted to prevent or prohibit unfair discrimination.”). Finally, the provision on the abrogation of

fundamental rights, Section 37, declares the substantive provisions safeguarding dignity, equality, and

human freedom (as liberty of the person in Section 12) to be non-derogable; all other rights in the

Bill of Rights, including the freedom of speech, are subject to legislative suspension in times of war

or national emergency.

See id

. at § 37(1) & (5). Even so, the Constitutional Court has invalidated

national legislation aimed at punishing and deterring hate speech.

See

S. Afr. Hum. Rts. Comm’n v.

Masuku 2022 (5) SA 1 (CC) (S. Afr.); Qwelane v. S. Afr. Hum. Rts. Comm’n 2021 (6) SA 579 (CC)

(S. Afr.). Thus, the Constitutional Court’s approach to hate speech regulations appears to be in at

least some tension with the express text of the Constitution—suggesting perhaps that South Africa

follows

the more general pattern of constitutional courts going their own way when deciding free

speech cases, through a process of common law adjudication, rather than

departs from

this model.

March 2023]

COMMON LAW CONSTITUTIONALISM

Because ordinary citizens in Australia and Israel expect the government to

respect the freedom of political speech, elected politicians have accepted,

rather than contested, the judiciary’s assertion of a power of judicial review in

this context (despite the absence of a textual constitutional mandate). Indeed,

were Australia or Israel to go about drafting new constitutions, these new

constitutional texts would almost certainly include express free speech

guarantees—precisely because the people of those polities

already

both expect

and demand constitutional protection for freedom of speech (and get it).

173

V. DEEPLY-SEATED SOCIO-LEGAL NORMS DEFINE THE SCOPE OF

FREEDOM OF EXPRESSION MORE RELIABLY THAN CONSTITUTIONAL

TEXT—AND THIS MIGHT APPLY TO OTHER SUBSTANTIVE RIGHTS TOO

The First Amendment provides a good starting point for framing the

inherent limitations of constitutional text as a way of understanding either a

human right or the prescriptive force of a constitutional provision. The federal

courts have applied the First Amendment in a dynamic and purposive

fashion—as a “living tree,” to use the relevant language from the Supreme

Court of Canada.

174

Judicial interpretation and application of the First

Amendment is not tethered to the text in any meaningful way and, moreover,

the Framers’ understanding of “the” freedom of speech plays little, if any,

meaningful role in contemporary First Amendment jurisprudence.

The relevance of constitutional text to the effective protection of

constitutional rights in general, and First Amendment rights in particular, is

both uncertain and seems to depend on factors wholly unrelated to a

constitutional provision’s literal text. Although it is commonplace in the

United States to assume that constitutional text plays a critically import role in

securing fundamental rights, this assumption simply does not bear up to close

and considered scrutiny. Does text actually do much work in securing

fundamental human rights in general—or the freedom of speech in particular?

Or were Madison and Hamilton correct to posit that institutional structure,

173

The European Union, for example, included an express privacy protection for personal data – in

addition to a more generic privacy guarantee—when writing and adopting the European Charter of

Fundamental Rights. Charter of Fundamental Rights of the European Union, 2012/C 326/02, art.

8(1) (“Everyone has the right to the protection of personal data concerning him or her.”). Data

protection is a central concern among the citizens of the EU—as reflected by the GDPR. It was,

accordingly, entirely foreseeable that the Charter would include an express guarantee of this particular

aspect of privacy—in addition to a more general provision that tracks the privacy clause of the

European Convention on Human Rights.

See id

. at art. 7 (“Everyone has the right to respect for his

or her private and family life, home and communications.”).

174

Edwards v. Attorney General of Canada, [1930] AC 124, 136 (P.C.) (Can.).

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[Vol. 25:1

design, and dynamics are far more important to safeguarding fundamental

rights (including expressive freedom)?

175

In the case of expressive freedom,

other factors, notably including a general legal culture that values expressive

activities, appear to be doing the real work in securing judicial protection for

democratic discourse.

176

The question of whether constitutional text matters is hardly a new one.

James Madison famously decried the utility of mere “parchment barriers” to

preventing arbitrary government action.

177

In defending the necessity of a

system of separation of powers, with a related system of checks and balances

among the three branches of the federal government, Madison wrote that “a

mere demarcation on parchment of the constitutional limits of the several

departments is not a sufficient guard against those encroachments which lead

to a tyrannical concentration of all the powers of government in the same

hands.”

178

Instead, each branch must both possess and be capable of exercising

effective tools to check and thwart attempted incursions by the other branches

of the federal government—and also have sufficient institutional incentives to

protect its own constitutional turf against such encroachments.

179

Like the separation of powers, the demarcation of fundamental human

rights in a written constitution does not, perforce, mean that those words will

have any meaningful constraining force on a government that would prefer to

disregard constitutionally protected human rights. Indeed, Alexander

Hamilton makes precisely this point, at length, in

Federalist No. 84

. Hamilton

argues that the inclusion of a written bill of rights would be “not only

unnecessary in the proposed Constitution but would even be dangerous.”

180

The enumeration of certain rights, Hamilton posits, “would contain various

exceptions to powers which are not granted; and, on this very account, would

afford a colorable pretext to claim more than were granted.”

181

After all, “why

declare that things shall not be done which there is no power to do?”

182

It should therefore be at least mildly surprising that, for most people, most

of the time, written guarantees of fundamental rights are thought to be an

effective, if not essential, means of securing the enumerated human rights.

175

See supra

text and accompanying notes 46-62.

176

See supra

text and accompanying notes 74-101.

177

THE FEDERALIST NO. 48, at 308, 313 (James Madison) (Clinton Rossiter ed., 1961).

178

. at 313.

179

See id

. at 308-13. (discussing how demarcating each branch of government’s powers in writing is not

enough to thwart abuse of their power and encroachment onto the powers of the other branches).

180

THE FEDERALIST NO. 84,

supra

note 46, at 513 (Alexander Hamilton).

181

182

March 2023]

COMMON LAW CONSTITUTIONALISM

This certainly proved true in the ratification debates over the U.S.

Constitution, when arguments of the sort advanced by Hamilton in

Federalist

No. 84

failed to quell potentially fatal objections that the federal government

would not be bound to respect fundamental rights.

183

Thus, during the

ratification debates over the Constitution, the absence of text designed to

secure fundamental human rights mattered—and it mattered a great deal.

The adoption of a bill of rights, however, is not a sufficient condition to

ensure that the government will, in practice, respect the enumerated rights.

We also know, from the examples of Australia and Israel,

184

that the inclusion

of a constitutional provision expressly safeguarding expressive freedom is not

even a

necessary

condition for the exercise of the power of judicial review to

invalidate laws that seek to censor or distort the marketplace of political ideas.

This does not mean that a written provision is invariably irrelevant—but the

force and effect of such a provision will depend critically on a nation’s socio-

legal culture, the salience of a particular human right within that socio-legal

culture, and the institutional ability and willingness of the domestic courts to

render binding judgments on the political branches enforcing the right.

Yet, despite these constitutional verities, which can be empirically tested

and confirmed,

185

many U.S. legal academics, judges, and lawyers still claim

that the text inevitably can and will constrain judicial discretion. The most

prominent and influential theory of constitutional interpretation within the

federal courts, including the Supreme Court, and advocated consistently and

loudly by the Federalist Society, posits that legitimate judicial decisions must

be rooted in constitutional text and in the Framers’ original understanding of

that text. Many—but not all—legal scholars heap scorn on this interpretative

methodology as a kind of false faith that does little, if anything, to legitimate

judicial decisions granting or withholding relief from particular litigants

183

See

MAGLIOCCA,

supra

note 64, at 32-34 (discussing the political necessity of promising to adopt

written rights guarantees in order to secure ratification of the draft Constitution);

see also

KELLY,

HARBISON & BELZ,

supra

note 52, at 121-22 (noting that proponents of the Constitution secured

ratification in several states “by promising a series of constitutional amendments embodying a bill of

rights”).

184

See supra

text and accompanying notes 144-173.

185

See e.g.,

ADAM CHILTON & MILA VERSTEEG, HOW CONSTITUTIONAL RIGHTS MATTER (2020)

(using empirical methods to deduce how constitutional rights in different countries define and delimit

the rights of individuals practically);

see also

Mila Versteeg, Cosette Cramer & Kevin Cope,

Empirical

Studies of Human Rights Law

, 15 ANN. REV. L. & SOC. SCI. 155 (2019) (discussing an empirical

study on the effects of codified human rights and constitutional rights).

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pressing constitutional claims.

186

Even so, the fact remains that within the

Supreme Court and the lower federal courts, textualist originalism, warts and

all, presently serves as the most prominent approach to reading and applying

the Constitution’s provisions.

187

Moreover, at least some prominent legal academics advocate textualism

and the importance of constitutional text to securing fundamental human

rights. Akhil Amar is perhaps the most influential (non-Federalist Society)

contemporary legal academic who argues that text matters.

188

Amar posits that

constitutional text is not only important on its own terms, but also should be

read dynamically to help lend credence to the idea that judges are enforcing

the Constitution (rather than simply imposing their own legal and moral values

in the name of the Constitution).

189

For Amar, text has objective meaning and

reliance on this meaning helps to legitimate judicial decisions that enforce the

rights set forth in the text.

190

Amar’s principal concern relates to the legitimacy

186

See

Mitchell N. Berman,

Originalism is Bunk

, 84 N.Y.U. L. REV. 1, 8 (2009) (arguing that originalism

“is not merely false but pernicious as well” and exists primarily as a means of “bolster[ing] the popular

fable that constitutional adjudication can be practiced in

some thing close to an objective and mechanical fashion” and warning that “originalism threatens to

undermine the judiciary’s unique and essential role in our system of government”); Mark Seidenfeld,

Textualism’s Theoretical Bankruptcy and Its Implication for Statutory Interpretation

, 100 B.U. L.

REV. 1817, 1819 (2020) (arguing that “while some might reasonably argue that textualism embodies

attractive attributes for the practice of statutory interpretation, its theoretical footing is essentially

bankrupt”). Although Seidenfeld’s immediate focus is textualism in statutory interpretation, his

theoretical critique is equally applicable to textualism in constitutional interpretation as well with

respect to its potential efficacy in constraining and controlling judicial discretion.

See id

. at 1840-48.

187

See

JOHN O. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD

CONSTITUTION 1 (2013) (observing that originalism “has been an important principle of

constitutional interpretation since the early Republic,” which still presently enjoys “prominent

adherents on the Supreme Court,” and emphasizing that “[l]egal academics across the political

spectrum espouse some form of originalism”);

see also

BREYER,

supra

note 22, at 115-32 (offering a

thoughtful discussion and critique of originalism as an interpretative approach to the constitutional

text).

188

See

AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998)

(providing a comprehensive, arguably epic, overall interpretation of the Bill of Rights); Akhil Reed

Amar,

The Bill of Rights as a Constitution

, 100 YALE L.J. 1131 (1991) (providing a textual and

structural overview of the Bill of Rights).

189

Amar,

supra

note 95, at 788-91.

190

. at 796 (arguing that “[e]mphasis on the Constitution’s writtenness—its general textuality and its

specific textual provisions—has certain democratic values” that notably include “constitut[ing] a

democratic focal point” that serves to “structure the conversation of ordinary Americans as they

ponder the most fundamental and sometimes divisive issues in our republic of equal citizens”);

see

SANFORD LEVINSON, CONSTITUTIONAL FAITH 9-15 (1988) (positing that a kind of generalized

reverence for the Constitution, without much attention to its specifics, is a deeply embedded feature

of U.S. political culture and observing that “‘[v]eneration’ of the Constitution has become a central,

even if sometimes challenged, aspect of the American political tradition” and serves as a kind of “‘civil

religion’”).

March 2023]

COMMON LAW CONSTITUTIONALISM

of the process of judicial review—and he suggests that text lends legitimacy to

judicial decisions enforcing rights.

191

Of course, other prominent public law

scholars reject this reasoning as nonsense, arguing that text does not

meaningfully constrain judicial discretion and that judicial decision making is

simply another form of ordinary politics.

192

It is, of course, quite true that text can provide a basis for a judicial decision

and can offer a possible answer to the problem of judicial discretion. After all,

if “the text” compels a particular outcome, then an individual judge can

attempt to disclaim any personal responsibility for it.

193

Thus, a textual

constitutional provision enables a judge to claim (falsely, of course) that she

lacked a free or meaningful choice—the text itself required, indeed compelled,

the result.

194

Justice Hugo L. Black, deeply concerned about the legacy of

191

Amar,

supra

note 95, at 765 (“There are many arguments for judicial review, but perhaps the

most elegant and forceful is the simple two-pronged notion that the Constitution is supreme law, and

that judges must apply this law in cases within their jurisdiction.”);

see id

. at 795-99 (arguing that

intratextual constitutional interpretation renders judicial decision making less objectionable and helps

to reduce the counter majoritarian difficulty by grounding judicial decisions in a document that itself

possesses democratic legitimacy even if Article III judges do not). Oddly enough, Amar himself

follows the modern practice of both ignoring the First Amendment’s facially limited scope of

application (it purports to restrict only Congress, not the executive or judicial branches) and failing to

apply his intratextual interpretative methodology to the First Amendment’s clauses that secure

expressive freedom.

See id

. at 812-18. At least arguably, an intratextualist approach to the First

Amendment itself would take the specific examples set forth (speech, press, assembly, petition) to

stand for a larger, and more general, guarantee of expressive freedom. However, Amar does not

propose this interpretative approach. I agree with Amar that “[g]ood interpreters need to know how

to read between the lines” but they also need to be able to extrapolate larger meanings from those

lines as well.

at 827.

192

See

Bruce Ackerman,

The New Separation of Powers

, 113 HARV. L. REV. 633, 667 (2000) (positing

that “[p]art of the problem is cultural: Do lawyers and judges take the process of legal interpretation

seriously?”);

see also

Bruce Ackerman & David Fontana,

Thomas Jefferson Counts Himself to the

Presidency

, 90 VA. L. REV. 551, 630-31 (2004) (arguing that “even textualists should accord

substantial weight to subsequent practice in resolving constitutional indeterminacies”).

193

See

e.g.

, Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J., concurring). Justice Anthony

Kennedy offered an apologia for his vote to apply the First Amendment to disallow a viewpoint-based

state law that prohibited the burning of a U.S. flag to express disagreement with government policies—

but permitted the retirement of a flag from use by burning it. “The hard fact is that sometimes we

must make decisions we do not like. We make them because they are right, right in the sense that

the law and the Constitution, as we see them, compel the result. And so great is our commitment to

the process that, except in the rare case, we do not pause to express distaste for the result, perhaps

for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.”

194

See id

. at 421 (“I do not believe the Constitution gives us the right to rule as the dissenting Members

of the Court urge, however painful this judgment is to announce . . . . It is poignant but fundamental

that the flag protects those who hold it in contempt.”).

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Lochner

195

famously adopted a strict form of textualism as a principal means

of trying to limit and effectively constrain judicial discretion.

196

Thus, text and

textualism present a way of answering Alexander Bickel’s “[c]ounter-

[m]ajoritarian [d]ifficulty”

197

by providing a popular mandate for the exercise

of judicial review. From this vantage point, textualism responds to problems

of discretion and legitimacy associated with judicial review by democratically

unaccountable federal judges.

But, at least with respect to expressive freedom, in the contemporary

United States, the text and textualism plainly constitute a “tin god”—meaning

a kind of rhetorical makeweight that does no meaningful jurisprudential

work.

198

To invoke text, while paying not the slightest attention whatsoever to

the actual words of the text, is to embrace (literally) the jurisprudence of the

non-sequitur. The First Amendment’s interpretation and application provide

a stark example of judges saying one thing while doing quite another;

contemporary First Amendment jurisprudence depends critically on judge-

made rules and constitutes clear examples of common law constitutionalism

in action.

199

At bottom, the problem is that textualism rests on a false premise—namely

that text actually constrains judges bent on disregarding it. To be sure, text can

and does provide political cover for judges.

200

But if we are seriously concerned

with effectively securing a particular human right, simply codifying a human

right in a constitution will not necessarily get the job done. The Eighteenth

Amendment codified a national policy of prohibition, but the amendment did

not change either the morality or drinking habits of the American people.

195

See

Lochner v. New York, 198 U.S. 45, 53-54, 58-60, 64 (1905) (invalidating, under the doctrine of

substantive due process’s protection of a right to “liberty of contract,” a New York state law that

limited the maximum hours per day and per week that a baker could lawfully work).

196

HUGO L. BLACK, A CONSTITUTIONAL FAITH (1969); Hugo L. Black,

The Bill of Rights

, 35 N.Y.U.

L. REV. 865 (1960). For an illuminating discussion of the relationship between Justice Black’s

textualism and Justice Antonin Scalia’s textualist originalism, along with a persuasive critique of both,

see Michael J. Gerhardt,

A Tale of Two Textualists: A Critical Comparison of Justices Black and

Scalia

, 74 B.U. L. REV. 25 (1994).

197

ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR

OF POLITICS 16 (1962).

198

Kisor v. Wilkie, 139 S. Ct. 2400, 2448 (2019) (Gorsuch, J., concurring) (“If today’s opinion ends up

reducing

Auer

to the role of a tin god—officious, but ultimately powerless—then a future Court should

candidly admit as much and stop requiring litigants and lower courts to pay token homage to it.”).

199

See

STRAUSS,

supra

note 14, at 52-53 (observing that “[t]he First Amendment was part of the

Constitution for a century and a half before the central principles of the American regime of free

speech, as we now know it, became established in the law” and positing that “[w]e owe [these]

principles . . . to the living, common law Constitution”).

200

See e.g.

Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J., concurring);

see also

Amalgamated Food Emp. Union Loc. 590 v. Logan Valley Plaza,

Inc., 391 U.S. 308, 325 (1968) (holding that private ownership of a local shopping center does not

preclude the imposition of First Amendment duties on the property’s owners because the mall was

the modern-day functional equivalent of a traditional town square and therefore an essential locus

for democratic deliberation). Although the Supreme Court ultimately overruled the holding of

Logan

Valley Plaza

see

Hudgens v. NLRB, 424 U.S. 507, 518 (1976), it has held that Congress, state

legislatures, or the state courts can impose free speech duties on private property owners.

See

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 85-88 (1980). In fact, the Supreme Court implicitly

reaffirmed

PruneYard

in 2021.

See

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2076-77 (2021)

(distinguishing the shopping center at issue in

PruneYard

from an agricultural work site and

explaining that “the PruneYard was open to the public, welcoming some 25,000 patrons a day” unlike

the nursery which was “closed to the public”).

233

See

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (opining that “[s]peech is

an essential mechanism of democracy, for it is the means to hold officials accountable to the people”

and positing that “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach

consensus is a precondition to enlightened self-government and a necessary means to protect it”).

March 2023]

COMMON LAW CONSTITUTIONALISM

agree that it is very difficult to imagine a system of free and fair elections that

does not provide some measure of protection for the process of public

debate.

234

However, the First Amendment itself simply does not reference the

process of democratic deliberation—even if the nexus between speech and

democracy is a reasonably self-evident one.

235

The democratic self-government

theory of the freedom of speech constitutes a common law “update” of the

amendment’s text.

236

On the other hand, however, the fact that very strong normative reasons

support the Supreme Court’s purposive and dynamic interpretative approach

should not—at least for a textualist and originalist judge—serve as a legitimate

basis for simply disregarding the text and original understanding of the First

Amendment’s expressive freedom provisions. That such judges seem to have

few, if any, compunctions about adopting a purposive and dynamic approach

to the First Amendment should also raise serious doubts about the ability of

text to constrain even jurists who claim particularly deep and abiding fealty to

constitutional text as a central bulwark against unduly broad judicial discretion.

Simply put, if judges who proclaim that they will enforce the text as written,

nothing more and nothing less, do not actually do this, instead embracing a

common law “updating” function,

237

is there any reason to believe that

any

judges will feel honor bound to hew closely and exclusively to constitutional

text when deciding constitutional cases? And, if they could actually chart such

a course, how long would they actually hold it before the pressure for

constitutional revision, via either judicial action or amendment, became

inexorable?

238

At the end of the day, some constitutional rights cannot be effectively

circumscribed by textual limitations. Like the Greek god Proteus, these rights

can and will change their form and shape over time. The question for those

drafting constitutional language then becomes identifying which rights can be

more successfully codified—and which rights, because of their deeply-seated

socio-legal salience, are relatively impervious to efforts to limit or constrain

234

See e.g.

, MEIKLEJOHN,

supra

note 1, at 25-27, 89-91 (arguing that freedom of speech is an essential

and non-negotiable precondition for any society committed to a meaningful project of democratic

self-government).

235

See

BHAGWAT,

supra

note 2, at 9, 81-98, 160-63 (noting instances where democratic deliberation

and democracy are interconnected and emphasizing the central importance of democratic

deliberation to self-government under the U.S. Constitution).

236

See supra

text and accompanying notes 93 to 99.

237

See

CALABRESI,

supra

note 10, at 163-71.

238

See

ACKERMAN,

supra

note 12, at 4-17, 87-88, 248, 408-20;

see also

BRUCE ACKERMAN, WE THE

PEOPLE: FOUNDATIONS 266-67 (1991).

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them through particular verbal formulae. Make no mistake, however:

constitutional law is a species of common law, meaning that judges, not

legislators, are its principal guardians.

239

As Justice Holmes observed in his

iconic book,

The Common Law

, “[t]he felt necessities of the time, the

prevalent moral and political theories, intuitions of public policy, avowed or

unconscious, even the prejudices which judges share with their fellow-men,

have had a good deal more to do than the syllogism in determining the rules

by which men should be governed.”

240

In conclusion, efforts to cabin expressive freedom through text—through

inclusion but also through exclusion—seem doomed to failure. The scope and

meaning of expressive freedom within a particular legal system will, like

Proteus, change shape and form, evolving over time, as the felt necessities of

democratic self-government require. Federal judges will shape and reshape

the doctrines associated with the protection of expressive freedom as necessary

to enable them to craft judicial opinions that they believe will be credible—

reasonably persuasive—to the general political community. This task is, and

probably must be, an exercise in common law judging. The First Amendment

is protean—and our understanding of how constitutions work would be

significantly improved if we invested more time and energy in trying to

understand precisely why this is so.

239

See

CALABRESI,

supra

note 10, at 3-5.

240

HOLMES,

supra

note 26, at 1.