I am moving a comment thread up here to its own post because it’s sliding down the front page and because I think it’s becoming both interesting and amusing. The commenter is now using the name The Other David, due to some confusion between two Davids in the thread. The discussion was originally about the Catholic League’s reaction to Bill Maher’s satire about Falwell but has now moved on to a more general discussion of constitutional law, which is of course one of my favorite subjects. In particular, it is now focused on the meaning of the 1st and 14th amendments. David is now making two principal claims: that the 14th amendment did not incorporate the 1st amendment and that the free speech clause should protect only political speech. Here’s his statement on the first claim:
Sorry Ed, but if the Constitution said Congress then the Constitution said Congress. There really can be no argument here. In particular, the First Amendment does not bring in the states. Congress is not part of the governance of the states. The states created Congress. That is why we have state Constitutions. Yeh, I know, the SCOCUS (sic) interprets that the 14th Amendment supersedes all states rights. I don’t believe the states felt that way at the time when three out of four of them were ratifying it. Even with the carpetbaggers twisting the arms of the South making them ratify, the overwhelming consensus was that the 14th was only to rectify black rights. Perhaps it is time to rethink that one and repeal it?
It’s amazing how common this argument is given the utter lack of historical support for it and the overwhelming evidence in favor of Congress’ clear intent to apply the Bill of Rights to the states. All one has to do is read the Congressional debates on the matter and the history of the drafting of the 14th amendment and it becomes quite clear not only that those who wrote it did so precisely so that the Bill of Rights would be applicable to state actions, but that they advocated it publicly as doing exactly that. Let’s look at some of that evidence.
In early 1866, the push for the 14th amendment began. The battle was led in the house by Reps. Stevens of Pennsylvania, Bingham of Ohio and Deming of Connectictutt, and in the Senate by Brown of Missouri and Howard of Michigan. The first to go was Bingham, who introduced the amendment to his House colleagues with a rousing speech urging its adoption and explaining its provisions. Knowing that it would be important to get the word out to the public to gain support for this amendment in the states, Bingham had that speech published and distributed as a pamphlet. The title of that pamphlet says it all:
One Country, One Constitution, and One People: Speech of the Hon. John A. Bingham of Ohio, in the House of Representatives, February 28, 1866, In support of the proposed amendment to enforce the Bill of Rights.
In urging his colleagues to pass such an amendment, Brown said it should be adopted “so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument (the Constitution).” Rep. Donnelly said that Bingham’s proposed amendment “provides in effect that Congress shall have power to enforce by appropriate legislation all the guarantees of the Constitution.” Bingham himself said that the amendment would give the Federal government “the power to enforce this bill of rights as it stands in the Constitution today” and to “punish all violations by State Officers of the bill of rights.”
Now, anyone who takes an originalist perspective on constitutional law would have to agree, based on the historical record, that incorporation of the Bill of Rights is precisely the proper reading of the 14th amendment. Whether one looks at the original intent (stated above with quotes from those who wrote it – and one could literally go on al day with similar quotes) or the original public meaning (which is the same thing here because the meaning applied above is precisely how the amendment was described in the press and sold to the public), there is no doubt at all about the proper interpretation here.
David’s second argument to this effect is that the first amendment is not applied to the states because the purpose 14th amendment “was only to rectify black rights.” Like the argument above, this one is very popular and also very wrong. Laws may be prompted by all sorts of specific situations, but they are written in broader language on purpose. Thus, when the 14th amendment says that no state may violate the “equal protection” of the laws, it does not specify only equal protection of the races, but of all citizens.
David’s argument is like someone looking at the historical record and saying that since James Madison was motivated to write the religion clauses of the first amendment by seeing Baptist ministers in jail in Virginia, therefore the first amendment applies only to Baptists. But this is clearly absurd. Now remember one of the first rules of conservative jurisprudence: textualism. It’s the text that matters most, and the text of the 14th amendment applies to all citizens, not only to those whose rights were violated on the basis of race.
Another basic rule of textual interpretation is to look at alternative wordings that may have been considered and rejected. Obviously, it is absurd to suggest that those who wrote a law intended result X if they had an opportunity to make X explicit and voted it down. And that is the case here. When the Joint Committee was considering possible wordings for the 14th amendment, the second one they considered was proposed by Rep. Stevens. It read:
All laws, state or national, shall operate impartially and equally on all persons without regard to race or color.
That would have done what David claims, apply the 14th amendment only to the specific issue of racial discrimination. That wording was rejected in favor of the much broader wording of the final amendment. For purposes of statutory interpretation, this is highly conclusive evidence against his position. If they had intended it only to rectify racial inequalities, they could have done so; the fact that they specifically rejected that wording pretty much settles the question.
It should also be noted that David’s theory about the 14th amendment is unsupported even by the most conservative jurists and legal scholars. No one, not even Bork, Scalia, Thomas or Rehnquist, takes the position that the Bill of Rights was not applied to state actions by the 14th amendment. This issue was settled a long time ago and even the most conservative scholars today do not take that position. The only place that position is popular is among the neo-confederate crowd.
David’s second argument is that the first amendment, even if it was applied to the states, applies only to political speech. He made that claim in a previous comment, to which I replied:
You’re mistaken. There is no such limitation on the first amendment, no qualifier for what particular type of speech is protected. This is the same incredibly stupid argument that Robert Bork made, one of the many reasons why he was rejected by the court. Are you really going to suggest that the first amendment does not protect against a government ban on literary speech? Or scientific speech? Or satirical speech?
And David replied:
You know Ed, I thought I was going to have to research the Federalist papers to find the meaning of “speech” in terms of the 1st Amendment but you saved me the trouble. If Robert Bork says the intent was to limit only political speech in a political setting then it must be true. He is smarter than either of us.
That’s just plain funny – not only a naked appeal to authority (that’s a logical fallacy, David) but an appeal to a very lonely authority. Bork is absolutely alone in his position that the first amendment applies only to explicitly political speech. As above, even the most conservative legal scholars, including Scalia, think this position is laughably absurd. There is not a shred of evidence for this position.
Now David, if you want to search the Federalist Papers on the intent of the first amendment, feel free; you’ll be wasting your time. First of all, the Federalist Papers were all written before the first amendment was proposed, so they would have no bearing at all on the meaning of the first amendment. Second, you certainly will not find any support whatsoever in the writings of Madison, Hamilton or Jay to support the notion that the government has the authority to censor scientific speech, literary speech, satirical speech or any other type of non-political speech.
You will find lots and lots of statements to the contrary, especially from Madison, who staunchly advocated the natural rights principle that no government had the authority to violate the right of free expression except when that expression violated the rights of others (thus, laws against fraud or libel are fine, laws against publishing stories the government doesn’t like are not). Your position isn’t just incredibly stupid, it’s also very dangerous; imagine for a moment a nation in which the government can throw people in prison for writing satire, or religious criticism, or short stories, as long as they are not “political.” Welcome to Orwell’s worst nightmare.