First Amendment history with Yale Professor Akhil Amar: So to Speak podcast

[Music] freedom of the fundamental rights freedom of conscience academic freedom freedom of press and the right to listen you're listening to so to speak the free speech podcast brought to you by fire the foundation for individual rights in education hello and welcome back to so to speak the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations i am your host nico perino september 25th was first amendment day in america the anniversary of the date in 1789 when congress approved 12 amendments to our constitution so today we're going to discuss the history of america's first amendment and its five freedoms with a particular focus on the free speech and free press clauses how did the first amendment become the first amendment what were the founders thinking and doing when they drafted it how was it interpreted once it was enacted and has its meaning changed over the course of its 230 year life span joining us for this journey through history is professor akil ritamar professor amar is the sterling professor of law and political science at yale university where he is taught since 1985 when he joined the faculty at just 26 years old professor amar has won numerous awards and been cited by the supreme court in more than 40 cases the most citations of his generation he hosts a fascinating podcast which i will recommend to you all called america's constitution and he recently released a book about the constitution titled the words that made us america's constitutional conversation 1760 that book along with two journal articles about the first amendment will form the backbone of our discussion today those articles are the first amendment's firstness which professor amar published in 2014 and how america's constitution affirmed freedom of speech even before the first amendment which he published in 2010. professor amar welcome on to the show nico it's great to be with you thanks so much for having me so we're talking about the first amendment today so i think in order to properly set up this conversation i want to start by reading all 45 words of that amendment it goes 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 peacefully to assemble and to petition the government for a redress of grievances so let's get down to brass tacks here that's the amendment how did the framers conceptualize the need to enumerate the five or some people who say six freedoms within the first amendment some background here the constitution was approved by the delegates of the constitutional convention in 1787 without the first amendment which wouldn't come to over four years later so how do we get to a place where the first amendment is seen as needed um so i've told this story in different uh ways at different times and true truthfully i think the most recent telling in the new book the words that made us is the best i wrote a book published in 1998 based on some articles the first one in the yale law journal in 1991 that article was called the bill of rights as a constitution and the book that eventually came out of it in 1998 was called the bill of rights creation and reconstruction and in those tellings of the story i tended to start in the first congress with james madison in the summer of 1789 basically introducing some amendments that get uh passed through congress um late that summer 1789 and then passed on to the states for ratification um stuff obviously it happened before but in my narrative that was largely backstory i i kind of really foregrounded madison's authorship that's a conventional way to do it and i now realize that that misses a lot and so in the new version i emphasize um because this new book as you mentioned the words that made us which is it's all about words and and words about words like the first amendment the first members words about words um about speech about press um and uh um in this new version um the words that made us the story begins in 1760 um not in 1789 and here's the first big big point that is relevant to to your your question i now um uh emphasize much more than ever before how what we call the first amendment really doesn't originate in the mind of madison um it originates in the very process by which the original constitution is ratified it begins as it were with the preamble with we the people of the united states in actual fact ordaining and establishing the constitution and that occurs in 1787-88 september 1787 is when the constitution goes public it's published in a in publications newspapers for the general public in a republican society and it's printed start to finish and why am i telling you all that because there is freedom of the press before there's a first amendment you see the press is absolutely free to publish the constitution and it and newspapers up and down the continent do no one's telling them what to do how to do it they just are choosing to do that most of them or many of them put the preamble in especially big font because they understand this is a big deal since you said this is an uncensored i could even say it's a big effing deal to actually put the thing to a vote up and down the continent how epic is that but not just a vote there's freedom of speech and debate about the constitution itself you're free to support it you're free to oppose it and here's the first thing that people start to say when they see the thing that's published in mid-september they say dudes wear the rights you know you you forgot to have a bill of rights state constitutions have bills of rights why isn't there one in the federal constitution and that turns out to be one of the two biggest objections that the critics of the constitution the so-called anti-federalists have and it was their demand for a bill of rights that would ultimately culminate in what we call the first amendment so i was starting the story way too late when i was starting with madison in in congress in 1789 rather than the people up and down the continent in 1787-88 a whole year of epic free speech free debate the people who opposed the constitution were actually listened to and and and the very process of adopting the constitution was an epic act of free speech yeah you're right in your book all right i believe it was actually in one of your articles here's the key fact americans in 78 1787 through 88 exercised remarkably robust wide open virtually uninhibited freedom of political expression as they pondered the constitutional tax proposed by the philadelphia framers and you also talk about how madison himself i'm quoting you here wondered whether the constitution could ever have been adopted had existing state governments tried to suppress criticism of their own lapses seen from this angle broad free expression was chronologically first it was part of the very enactment process by which the constitution was born but could you even go further back than that functionally it seemed even under british rule as though the colonists exercised free speech rights even under laws that sought to censor i'm thinking back here to the trial of john peter's anger which i believe came in in the 1740s if i'm not miss 1730s you have liberty polls during the revolution and before the revolution so functionally americans were exercising free speech rights long before even the conversation around the constitution was happening and when they passed the conv constitution without the bill of rights was it just a presumption that of course we're going to be able to exercise our free speech rights that's what we've been doing for the past number of years many of the state constitutions uh protect these rights how how should we think about it in that way um nico you're asking just the right questions we're beginning to work backwards you see because my bill of rights article my bill of rights book tended to as i say foreground madison in the first congress so we've now i said well we have to actually start the story at least a year or two before in the process of adopting the constitution you're saying oh we've got to go back even further and you're absolutely right now my new book it doesn't go back to zanger and it doesn't go back to zanger in the 1730s because that's not going to immediately lead to the american revolution so here's act 1 scene 1 of my new book the new book starts in 1760 and here's why because um at the end of the day the american revolution is a revolt against a particular person a king king george iii and so i act one scene one is the very first moment that americans um um learn that he's their new king it's december 17 late december 1760 and word arrives in the new world that the old king is dead george ii and his grandson the 22 year old george the thing george the third is now their their their new king their new sovereign and and their they raise their their their glasses to him they they toast him they pledge their loyalty they're very happy and proud britons in america um and so 1730s is not really very continuous um because you know that was a different um george george the first probably uh maybe george so so i began in 1760 and everything seems hunky-dory um and i begin with actually people exercising their ability to assemble together and they're assembling actually to hail their new king and um and and um and toast him but immediately thereafter um parliament starts imposing um taxes on uh the colonists and they're pushing back against that um and um that's actually um an epic free speech episode um in 1765 and and and i'm going to tell you just a little bit about that the stamp act crisis and that's how many people begin the story the american revolution when parliament starts to tax america in 1760 465 sugar act stamp act i say oh started earlier start with actually first of all in 1760 americans saying um uh hail king george long live the king and then immediately thereafter it turns out there's this interesting court case involving um a thing called the ritz of assistance and that's freedom of speech as well because you've got this rabble-rousing lawyer who's criticizing certain things that the british are are are doing even before the stamp act and and he's he's basically playing to the crowd he loses the court case but he gets some newspaper coverage and he gets some local press covers and he parlays that his name is james otis and he's going to parlay that into a political campaign so he gets elected to the massachusetts assembly he's his father was speaker of the house of the massachusetts assembly he's the great he's going to become the great colonial rabble rouser before patrick henry before samuel adams before thomas jefferson so that's 17 60 61 and he's using free speech in a courtroom and and and right and and trying to get press attention okay so so now the press is going to start to be important people in other places other colonies aren't covering this so it's just a boston story a massachusetts story initially oh but when parliament in 1760s 1764 65 starts to tax all america there's going to be pushback not just in in massachusetts but in virginia up and down the continent for the first time ever there's going to be an assembly remember first amendment our first amendment talks about the freedom of assembly they're going to actually the colonists up and down the continent are going to come up with an intercolonial assembly it's called the stamp act congress to mobilize opposition to parliament to express their grievances using freedom of speech it's going to get published in all the newspapers freedom of the press and the person who more than anyone else sparks and organizes the stamp at congress is named james otis and his first real appearance on a public scene was in the ritz of assistance case which is my act one scene one um in 1761 so my first chapter is james otis the rabble rouser is going to become a really important a colonial a patriot figure there's this obscure lawyer no one's ever heard of him before but he's in the room taking notes his name is john adams and later on he's going to actually be not so heroic on freedom of the press we're going to talk about the sedition act i i hope today but you're also just not a big fan of john adams generally if i've heard your commentary so i'm going to criticize him but on this one look but for john adams i wouldn't have actually stumbled across probably this ritz of assistance controversy 50 years later he says that's actually when the revolution began that's when john adams said now part of the reason he said that is because he was in the room and he wanted everyone to know that he was there before and part of it is because he's such a um biased um uh bostonian or a massachusetts man um so he's saying like you know before there was thomas jefferson before there was patrick henry before there was george washington it was in boston when it all started in 1760 61 so he's there in the room you got the the leading um early colonial rabble rouser patriot james otis um making this uh uh the speeches that people are paying attention to oh and you got america's leading loyalist the guy is going to become the most distinguished most respected american-born backer of king george his name is thomas hutchinson and he's in the room as well he's actually one of the judges so i got these fascinating characters and it's a free speech free press story but only massachusetts is paying attention four years later oh james otis is going to organize a stamp at congress pushing back against parliamentary taxation up and down the continent otis as much as anyone coins the phrase taxation without representation is tyranny that's a james odis phrase and it starts to resonate but here's the thing about the stamp act everyone you know is a very um knowledgeable audience that we have for this podcast and for america's constitution by the way we've got a good um learned audience also they've heard of no taxation without representation they've heard of the stamp act they know that parliament you know was criticized for imposing taxes on america when americans weren't represented in parliament here's what they don't know that that tax was attacks on all sorts of paper goods it was a tax on deeds on wills on contracts but it was also attacks on newspapers it was you know uh and newspapers at the time weren't paying for content um they basically were just it was paper and ink and and they were aggregators and advertisers people would pay to have their advertisements um in the press and and and and scribblers would just send in um free material over the transom and they and and they won't get get paid they're not staffers but they get published okay so so if that's your business model oh you're not going to like a tax on paper um and so who pushes back hard against the stamp act it's newspapers up and down the continent and this is in 1765 so yes we're pushing the story back from madison in 1789 the first congress to adoption of the constitution in 1787 but now oh two decades earlier newspapers are playing a huge role in pushing back against snap pack and here's one thing that they do they simply publish their newspapers without paying for the stamp and and some of them actually mockingly put in a little blank space where the stamp is supposed to go or they put in a mock stamp of their own um uh creation so newspapers up and down the continent in 1765 are using their freedom of the press to push back against parliament yeah you write in your book the words that made us that unwittingly the act enabled newspaper men to mock parliament simply by ignoring it and doing that the press had always done print words on paper now some of the newspaper men were a little bit cautious at the beginning they didn't print their names on the masthead for example or they stopped publishing for a little while just to see kind of how the situation would shake out but then it seems that a lot of them just ignored it and one of the things that struck me in reading your book especially this part about it um was how much of their opposition to the stamp act wasn't rooted in any sort of concerns for the viability of their business or the economy it seemed to be rooted in a philosophical appreciation and sense for what liberty is and what free press and free speech is you have the boston gazette for example saying it seems very manifest from the stamp act itself that a design is formed to strip us in a great measure of the means of knowledge that's a philosophical argument about that the press is a necessary component for an educated populace for the production and and and dissemination of knowledge you also have a quote an editorial from another newspaper which is an ode to the press as the test of truth the bulwark of public safety and the guardian of freedom i will ask you though because that boston gazette quote they they uh censor the word the stamp the phrase stamp act itself so i wondered if there was some sort of thing that they couldn't say or that would clue the the would-be sensors in or there would be police into to their articles if they had for example used the phrase itself or if it's that's just kind of a pejorative against the stamp actor the kind of like voldemort and harry potter that it shall not be named he who shall not believe so i'm not sure on that specific thing whether they were they thought somehow um that would somehow protect them against punishment or something like that but here's what is um amazing about um that um those quotes that you you have so now there's pushback not just about taxation but um about sort of press regulation and the fact they're saying gee you're you're putting a tax on on um college um diplomas and and newspapers and books and almanacs and and the means of of of of communication and and and that's i'm particularly problematic uh so nico here's the amazing thing about this 1765 boston gazette um a little excerpt and just to repeat it it seems very manifest from the stamp act although they take out some of the letters it's s-p a c you know it seems very manifest from the stamp act itself a design is formed to strip us in a great measure of the means of knowledge by loading the press the colleges and even an almanac and a newspaper with respects and duties and what's what's um and then later on this connecticut newspaper talks about um the press as you said the test of truth the bulwark of public safety the guardian of freedom what's really interesting is that gazette piece is written by anonymously john adams and maybe it's anonymous because he's afraid possibly of of reprisal but that's his first um he's just turning 30 um and and that's his um uh he's a week shy of his 30th birthday and that's his first important statement on um parliamentary power what we've become the revolution and you see it's pro speech and pro press which makes it so sad that later in life he's going to forget all of this stuff and try to punish newspapers who criticized him even though he had used newspapers as a young man to criticize other officials he forgot where he came from and that's why he's a one-term failed president ultimately he's the only early president who doesn't get re-elected washington two terms and walks away um jefferson two terms and chooses to walk away madison monroe each two terms and involuntary steps down adams is the only early president who loses and i believe he loses because he forgot where he came from where america came from and as you and i are talking where america came from is freedom of speech and of the press and and it doesn't begin with madison in 1789 in the first congress or even in the ratification of the constitution yep begins much earlier you know we could go back to zenger but i'm showing a continuous unfolding of of of press exercise and broad exercises of speech press petition assembly and the like um in the 1760s you know what that stamp congress does it petitions congress and petitions the king for redress of grievances and and the later continental congresses the first continental congress in 1774 is gonna do the same thing in the second continental congress in 1775 is going to do the same thing what are they doing they're assembling they're petitioning they're getting their pronouncements published in newspapers um freedom of the press that's what americans are doing and the british are trying to shut all that down and they're not listening and and george iii i say loses america for a simple reason he doesn't read american newspapers and he's not actually paying attention to what's going on and americans increasingly are reading american newspapers you say well of course i'm saying no it's not that bostonians are reading boston newspapers and new yorkers are reading new york newspapers and philadelphians are reading philadelphia newspapers by the 17 mid 1760s philadelphians are reading new york newspapers and and boston newspapers they're retweeting each other's essays because again they're not paying for content very much but basically they're they're aggregating and there's the beginning of a continental even indeed frankly a world discourse because they're also trying to talk back and forth with folks in london about these important issues of british constitutional law no taxation without representation freedom of the press and the like i've always wondered this about the bill of rights so at the beginning of this conversation i alluded to the fact that there were 12 amendments that were sent off the states for ratification um after being passed by the congress only 10 of them come back um but they just so happen to be the 10 that deal most squarely with rights you know the rights of the people the first two amendments and correct me if i'm wrong here dealt with how congress could pay itself the process by which he could pay himself another one dealt with like the how representatives would be apportioned or something like that the rest deal to a certain extent with the rights that we have that's why we call it the bill of rights did the congress that sent these 12 amendments off to the states conceive of a bill of rights as we think of it today or do they just think these are the 10 additional articles that we want to add to the constitution and just so happens that 10 of them deal with rights and the other two to deal with procedure okay so let me fill in a couple of the missing pieces of our chronology yeah i think it will fall into place and again i didn't tell the story quite this way in my 1998 book on the bill of rights because i started the story too late okay so we're starting our story in 1760 and americans are are learning from newspapers that they've got a new king so actually my first paragraph of the whole of chapter one you're going to hear if you listen carefully repeated allusions to news and newspapers so here's how the book begins chapter one the news reached america on the steed that had no legs but promised swiftness the merchant ship racehorse landed in boston on saturday saturday december 27 1760 after 40 days on the choppy ocean that both connected and divided bold england and new england the trader bought incontrovertible tidings from early november british newspapers copies of which captain samuel partridge immediately distributed to boston print shops for partial republication as passengers and crew came aboard word also spread from mouth to mouth the old king was dead and the young king now sat on the throne so you're seeing here newspapers print shops people talking but we are going to call the first amendment um so the news reaches america that's act one scene one we've got a new king immediately thereafter there's a court case because with the new king there's actually a requirement that all the old um um ritz that used to issue in the name of king george ii now have to issue in the name of a new king and this generated a court case and james otis this rabble-rousing lawyer is going to use to actually criticize certain um british practices okay and he's tr and he's making an appeal basically he loses the court case but he wins in the court of public opinion because there's an audience there this is freedom of speech people are gathered this is freedom of assembly and local newspapers cover it um a local newspaper but no one outside of boston is paying attention then the stamp act comes along and parliament is actually taxing all of america and so the americans start paying attention to each other boston is listening to new york and philadelphia and charleston and americans are starting to coordinate and listen to each other and make appeals to britain newspaper essays back and forth and a stamp act congress a a continental assembly for the first time americans assembling up and down the continent against britain that had never happened before and remember the organizer of that stamp act congress it meets in new york in 1765 is james otis and what are they doing they're petitioning the king they're petitioning parliament and they're getting newspapers to print out all of their protests and local colonial assemblies as in freedom of assembly are doing the same thing and getting local newspapers to print out their protest so they're petitioning and assembling and and getting press coverage okay that's 1765. the brits instead of listening increasingly try to shut down american discourse um and and eventually there's going to be a fighting war lexington and concord and bunker because the brits aren't listening aren't reading they're trying to shut down this burgeoning discord now here's the missing piece that we didn't fill in americans adopt state constitutions in a declaration of independence the declaration is designed to be it's short so it can appear in newspapers so it can be read aloud in gatherings in assemblies so it can be read to the troops so the declaration of independence is part of this newspaper and assembly and free speech revolution and the state constitutions that immediately emerge in 1776 every one of them is very short and published start to finish in newspapers and so you're saying that was a conscious decision to make them short the declaration of independence the constitutions yes written constitutions written declarations are all about newspapers until they're short you can't have the american revolution and the american constitutional tradition without newspapers and these are printed um start to finish and and here's the key this is the missing link these state um constitutions most of them have sections called bills of rights and many of those sections with bills of rights actually talk about for example liberty of the press or freedom of the press some of them will later actually talk about freedom of speech sometimes it's freedom of speech and debate in a legislative assembly um in um but and sometimes even more more broadly um so um and and and the and the people in massachusetts are reading that pennsylvania declaration of rights um and the maryland declaration of rights so there there's there's intercolonial conversation the master the pennsylvania the virginia declaration of rights which will become the virginia bill of rights is drafted by george mason the first draft is published not just in virginia but republished in at least four philadelphia newspapers in june um of 1776. so franklin is reading it jefferson is reading it adams is reading it as they're composing the declaration of independence they've already got this a proto state bill of rights drafted by george mason and and newspapers across america are are reprinting these and bought mixing and matching and borrowing from all that so that's why americans in when the constitution is made public the first thing they say is you forgot the rights because they've seen state constitutions and state constitutions have bills of rights the u.s constitution looks a lot like state constitutions it's got it's written it's got a bicameral legislature which every state has except pennsylvania and georgia um it's got an a separate judiciary which every estate has um um but every state uh most states also have bills of rights and that oh of state constitutions in massachusetts and and and new hampshire were put to a special vote and the u.s constitution is designed to be put to a special vote and as soon as it becomes public in september 1787 in that process of putting it to a vote remember there's free speech people are talking about it and and freedom of the press newspapers are printing copies of the constitution by the tens of thousands the first thing ordinary people say is where is the bill of rights because state constitutions have one and this looks like a state constitution this proposed federal constitution but it's missing a thing called the bill of rights so so that's what they demand and here's the deal in the course of ratify they make they have many objections but two are especially prominent one the house of representatives is too small to be truly representative it's just too tiny compared to state constitution state legislatures parliament has 550 members many states have hundreds of members in in um they're only going to be 65 members of the first house that's smaller than the house of representatives in 11 of the 10 or 11 of the states okay so virginia its state legislature has let's say 300 or 400 members but they're only going to be 10 members of congress you know from all of virginia there are 1500 to 2 000 state assemblymen up and down the continent and they're only going to be 65 members of congress that's too small that's their first objection and it's going to become the original first amendment okay the congress is going to need to be bigger it doesn't get passed but it's the original first amendment on the list of 12. that was one of their big objections and it's not a surprise that that was the original first amendment it just doesn't get ratified but their second big objection the two biggest objection of the anti-vendors is dudes you forgot the rights and here's what the federalists say about both of those they say oh you're right about both of those maybe we goofed they pivot madison and washington in the end who did not back a bill of rights at philadelphia who proposed a bill of rights at philadelphia behind closed doors wait for it his name is george mason he's the author of the virginia declaration of rights of 1776 he said hey you know i'll compose one for the federal government it's late um in in in the summer people are tired they make a mistake they just say we want to go home they don't list because because mason says oh i can do it quickly and they're thinking this will be another two weeks and i want to go home um so they make a mistake um they don't add it and the first thing that americans say is you forgot the rights and the other things they say is the house is too small it's not really representative of the diversity of america what do the fed will say in response in this year-long ratification process because it's not just putting the thing to a vote it's talking about it with newspaper essays in conventions which are people the people assembling you see face to face discussing the thing clause by clause idea by idea in this conversation the constitution is the project of this epic continental conversation um and in that conversation the federal say okay we goofed so here's here's what we propose if you will ratify if you will say yes we'll work with you to fix the thing we'll um the original congress was too small but that was just because we didn't have a census and we were just making up some numbers as soon as we have a first census we will try to grow the congress as fast as possible and you're right we should have a bill of rights that you know in in certain respects so we'll work with you to come up with a good set of of rights and and madison keeps his word because if he doesn't keep his word oh it's not just that that was required to get the constitution ratified this this promise by the federalists madison has to make this promise in order to get elected to the first congress he has to make this promise to his own constituents who actually say you know we're not going to send you to congress you know if if you're not all in on rights they trust him in part because long before he had been a champion of religious freedom and um which is where was that all coming from george mason's state declaration of rights that had actually a provision about religious freedom um as well as freedom of the press and actually madison thought it was too weak and he strengthened madison has credibility with his constituents especially on religious rights which are going to be part of what the first amendment is about so he says in effect he publishes several newspaper essays that in effect and letters to friends they get that reprint to say okay i goofed we should probably we should have um some rights in the constitution and if i'm in congress i'll work to get them adopted that's the back story that i didn't tell in a sufficiently fulsome and complete way in my 1998 book that i do tell the new book the the five freedoms or you know depends how you break out the religion clause six freedoms in the first amendment you know we have religion press speech assembly petition were the in the state constitutions were those always grouped together or is this a novel uh construction in the in the federal constitution i think of the first amendment almost when you think of those five freedoms as kind of the conscience amendment uh more than i i do any and the word conscience isn't even in there but it protects the conscience of its citizenry and the word conscience is in a lot of their discourse jefferson isn't there at philadelphia he's off in france when he finally sees what's in the constitution he and madison are very close why are they very close because nico way back in 1776 they worked together to affirm religious freedom um to um madison um got george mason to broaden the affirmation of religious freedom in the virginia bill of rights and then madison and jefferson kept working later on to get an even more expansive affirmation of religious rights that didn't get added to the virginia bill of of rights but did was a 1785 virginia statute the bill of religious freedom that madison and jefferson worked together to accomplish so so these guys are friends and they bonded over an idea of rights in particular religious rights religious freedom when the constitution comes out um and because it was see it met in in secret but as soon as um his proposal was was released the delegates were free to talk about what had happened in the convention and madison sends jefferson who's off in france a copy of the proposed constitution and he starts to also tell him here's what happened in the philadelphia convention and jefferson immediately sends back and says i like a whole bunch of things here's what i don't like there's no bill of rights so that's front and center in jeff and and madison initially fobs him off and jefferson writes a second ladder and a third jefferson is relentless and jefferson keeps saying you forgot the rights you forgot the rights you forgot the rights and in those letters you will see words like conscience and in broader discourse you will see words like conscience and it's in the virginia um bill of religious freedom and in in state constitutions so here's the interesting thing that you're asking and it's just the right question to ask how does the organization of the federal clauses um and and and and the the words in them how do those compare to what's in state constitutions and here's the answer yes many state constitutions had liberty of the press fewer had freedom of speech and uh several had religious freedom provisions not non-establishment most states have established religions of one sort or another but um um uh um but um they've got religion clauses and they've got expression clauses especially freedom of the press sometimes freedom of speech but they never in any state constitution push them together into a single cluster so one question they're asking is why are these things clustered together in what we call the first amendment which was actually third on the list um so first is what was the order all about and why were they clustered here's what the order was all about it wasn't we today think the first amendment's there because it's most important but remember it was third on the original congress's list and this is the first two dinka ratified so if when judges justices have said it's first because it's most important and that's a little bit like it reminds me of i think that was maybe ma ferguson or maybe it was archie bunker who knows who said if english was good enough for jesus christ it's good enough for me because it's not true but we you know you can understand why people think that way okay so um the order of what we call the bill of rights the order of these original amendments was driven by the following originally they were going to be added into the text of the original constitution rather than appended as postscripts so they were just tracking the order of the original constitution so what was the big one big problem congressional size that's article one section six so that's their first amendment okay congressional pay that's article one you know sexually that's the original second amendment third amendment was congressional powers and that's going to be our first amendment how does it begin congress shall make no law the original idea was that congress had no enumerated power in certain areas um congress had no um what what's the what does that constitution say congress shall have power to make all laws that are necessarily proper in various areas and the first amendment is saying congress shall make no law so it's it's building on this claim and the claim was there's no enumerated power in certain areas over expression to there's no enumerated power to restrict free expression and there's no enumerated power to regulate religion and they get smooshed together initially for reasons of federalism more than for reasons of rights why do i say that because no state mushes them together that way state bills of rights have religion clauses and expression clauses but they're different they're not in the same cluster only the u.s constitution pushes them together originally actually they were separate provisions in james madison's initial proposal they get eventually stitched together and i say it's largely for reasons of federalism what do you mean by that reasons of federalism that congress has no enumerated power over these areas where see congress does have power over search and seizure because you're going to need to have searches and seizures to enforce customs laws so there is power to regulate um or to enforce tax laws you're going to need sometimes to to inspect warehouses to make sure they're not cheating the tax man that was the ritz of assistance case of james odis it was actually about customs duties so there is enumerated power um to have um uh cert very search and seizure laws there's a numer you you have to have courts and so um the provision there are provisions that regulate courts and courts are in article three do they have to have due process the fifth amendment says and the sixth amendment says oh you have to have a public trial and a jury trial well there's surely enumerated power to have court that's article three but but many um folks said there is simply congress has no power whatsoever to regulate religion that's left to the states and remember some states have established churches the original established clause doesn't say it does say congress can't create a national church true but it also in effect says congress can't disestablish state churches because that would be a law respecting a law on the topic of a law in regards to in reference to an established church so at the time of the founding half the states have strongly established churches and and many states actually have um weak establishments of a certain state you have to have religious tests in order to be a government official there are only two states that don't have religious tests um to hold to hold office virginia and new york and new york is actually modifying that even as the time of the of the constitution can can i ask you about these enumerated rights right the arguments from the federalists if i'm understanding it correctly is that well we don't need a bill of rights because to create a bill of rights uh to tell the federal government that it can't do something presumes essentially that you know that they're well the constitutional only tells them what they can do right of course they can't abridge the freedom of speech or of the press or you know the right of people to practice a religion because the constitution doesn't give them the right uh to do that so then they then they add the bill of rights because people want that or the anti-federalists want that this is kind of a broader question in hindsight here you have the ninth amendment which seems to be the uh the compromise there it says you know all the rights not enumerated here are you know are still respected justice bork or judge bork excuse me if it wasn't confirmed called that an ink blot in in retrospect who do you think was right on that debate do you think to enumerate certain rights kind of created a set of rights for which no other one will be expect respected like how often is the ninth amendment enforced right you get you get the reconstruction amendments and you get the privileges and immunities clause which is hardly ever enforced it's a lot of its enforcement of the due process clause i know this is getting slightly far afield from the first amendment but it's it's something that i've always wondered and want to take this brief digression it's not at all and it's just such a great set of questions and so um i think the anti-federalists were right and i think the federals were right and the only person who wasn't right is robert bork was my teacher it's because he knew no history he got me interested in history because he said oh you know originalism is important he persuades me of that and so i have spent my life actually studying the very history that he said was important but knew nothing about so i'm being i'm being fierce here but i knew him he was my teacher and he didn't know his history at all and i just wrote an 832 page history book and it's one of you know several you know big epic history books that i've written because he persuaded me i i owe it to him since um since you mentioned harry potter um i actually wrote a tribute essay to him um uh when he passed away and it's basically um i thought about this as i wrote harry potter and snape when i had him as a teacher i kind of you know pushed back against him in all sorts of ways and i now realize um that um he has you know it was a much bigger influence on me than i understood as as harry potter ages he comes to have a different understanding of severus snape okay and this i've aged i've i've i've come to mellow in my um take on um but but was he was he right functionally if not theoretically not like he was wrong in every way and i'll come to that maybe we don't call it the ninth amendment we call it substantive due process but we have a robust unenumerated rights tradition and he didn't get it because he didn't actually know history and and know the deep context so no it's it's ridiculous and offensive to call something in the constitution and inkblot how can you you're not taking it seriously because um really they wrote an inkblot in the cloud maybe but i won a lot of evidence before i thought that they wrote something that was unintelligible he just didn't want to deal with it okay and and to actually understand he would have he he wasn't in his bones in the story and neither was scalia and there have been people who have been in their bone disorders clarence thomas is much more interested in history and and reads about it you know i'm a democrat he's a republican i'm left with center he's writers center clarence thomas but he studies history in a way that bork and scalia frankly didn't so you kind of you kind of see that in some of clarence thomas's uh writings on privileges and movies laws for example and so let me just take a step back and say okay the federalists were right and the anti-federalists they were both right and the compromise is the ninth amendment so here's now we're filling in all the missing pieces and we have to get to reconstruction because it's really important yeah i've got a bunch of questions on reconstruction cause you talk about it and and and so um because originally the first amendment just to cut to the reconstruction story was about um it says religion and it says speech but they were put together for reasons having to do with the powers of congress but by the time of the 14th amendment they get put together they get reinterpreted saying oh it's because religious speech is important because actually you can't separate religious speech from political speech and of course they would think that the reconstruction generation because um the crusade against slavery was a political crusade but it was also a religious crusade you see led by abolitionists we're leading preachers and and and and family members of preachers like harriet beecher stowe so okay so eventually we're gonna reinterpret our first amendment we're gonna say it's first because it's the most important and it combines religion and speech um because we have to protect religious speech and that's going to be a reconstruction story we're going to get to that eventually but take a step back why were the anti-federalists right because first of all because the federalists say oh there's no power to regulate speech or press in the first place so why do you need to protect it um and there's no power to have unreasonable searches and seizures there's no power to abrogate jury trial and the entrepreneurs say first of all you're going to be able to regulate um the territories and the district of columbia and there there's actually plenary power you're going to be just like a state government and state governments have bills of rights so congress when you're regulating the territories in dc which is where you'll see the government you're going to have plenary prior to you should have a bill of rights um when you're in effect sitting um in the in this in the shoes of a state legislature that's point one point two what are you talking about there's no power not to have juries you've got an article three you're gonna have to have courts article three actually says there's um that there must be juries but it doesn't say they have to come from a district it doesn't say actually that there has to be a speedy trial or a public trial um so there is enumerated power over the judiciary but you just haven't put in proper rights what do you mean that there's no power to have unreasonable searches these years you said there's tax power and you said you have congress is going to have power to pass necessarily proper laws now necessary and proper laws to implement tax power is going to involve searching and seizing warehouses and ships and all the rest to make sure that there's not smuggling going on so so it's just not true that there's no enumerated power over certain things and and so here's actually what the federal say it's like the triple dog bite defense i don't own a dog it didn't bite you and you kicked it first um a bill of rights is is bad and unnecessary oh and besides we already have one we already have protections of jury trial and no bill of attained or no exposed factual well if you already have one there's not a bad thing you see so when they say simultaneously we you know we don't a bill of rights would be a bad idea and we already have it that's what federalists say and they changed their mind because the argument wasn't good what really happened here's what really happened they were tired at philadelphia they didn't give sufficient thought to george mason's proposal and they blew him off and he's one of three people who refuses to sign the constitution this was the mistake on their part and when he goes public in the press with the three people who don't sign her elbridge gary from massachusetts george mason from virginia and the governor of virginia edmund randolph george mason goes public with his reasons and prominent among his reasons are there's no bill of rights ordinary people even before george mason are seeing there's no bill of rights the federalists are on the defensive people hate to admit they make a mistake you know believe it or not that's not just true today that's true back then so they come up with baloney reasons kind of in a way they're just trying to you know explain why they goofed and they said well you know bill of rights is dangerous you don't really need one and besides we have one um and those three don't add up they get pushed back and push back and push back and eventually they say okay we're going to need to pivot here otherwise we're not going to get the constitution ratified we'll work with you on a bill of rights so that's why the anti-federals are right about a whole bunch of things analytically here's where the federalists will write and partly it's face saving gee we have to be concerned we have to be careful because we don't want a bill of rights if we adopt it to somehow imply that these are the only rights because we may not be able to we may forget something we need not to be able to itemize and categorize all the rights it's also face saving for them because they can say oh there was a reason we didn't compose rights because we were worried about um being insufficiently inclusive the problem is you already have a habeas clause in the constitution and the no exposed facto clause in the constitution and a no bill of attainder clause in the constitution and a provision of jerusalem you already have a kind of incomplete list of rights so so that was already a problem but face saving you know they say there there's a problem if we list rights so the ninth amendment is a beautiful compromise the federalists and the anti-federals get together the anti-federalists are being brought on board they're being listened to and the federalists are saving face and actually making an improvement saying this list of rights is not exhaustive there are other rights that aren't actually specified and then the game becomes the ninth amendment where where do those other rights come from and i think they come from and the 14th amendment is not going to specify all the privileges and immunities that states can't abridge but here's what i want to say just on those two things because there are non-specified privileges and immunities and unenumerated ninth amendment rights first read the words of the 14th amendment no state shall make or enforce any law which shall abridge the privileges or immunities of citizens in the united states now here's what i want your audience to hear that's building on the language of the first amendment which says congress shall make no law which liberates the freedom of speech and the press shall make no law a bridge those are all the first amendment those are all the fourteenth amendments so the fourteenth amendment is obviously building on the first in some interesting ways monkeys sitting at a typewriter wouldn't have that that similar word pattern no shall make law a bridge here's the big difference the 14th amendment says states and localities cities counties all the rest can't mess with these fundamental rights the original bill of rights limited only a federal government the first word of the first amendment congress shall make no law why because the anti-federalists were freaked out about federal power and they tended to trust states and localities and there were state bills of rights by the time of the 14th amendment it becomes clear oh states are violating fundamental rights of free blacks and and and whites they're making a crime to criticize slavery we need a second bill of rights limiting states and localities especially after the civil war the states misbehave with secession we need a second bill of rights against the localities just like the framers needed a first bill of rights against the central government but a different way the constitution is the project of our history most essentially are wars the revolutionary war who are the bad guys london parliament the central government we're afraid congress is going to become very arrogant and unrepresentative we need rights against the central government because the american revolution is local against the center civil war who misbehaves states they take up arms against a duly elected government just like you know the january 6th storming the capital even though biden was duly elected um so so the second bill of rights after the civil war is a bill of rights against states which have misbehaved okay so but shalt make no law a bridge in both amendments but you can't enumerate all the rights because there are just so many so the ninth amendment says this isn't exhaustive privilege is a muse clause doesn't specify all the things that states can't do it it sort of gestures at the more where do we find unenumerated rights i would say in state constitutions in the declaration of independence and american culture and tradition in um we find it in america and judges don't make it up but they they're not all itemized i realize we're at an hour here do you have a few more minutes for a few of course okay great because i want to actually quote from you on the reconstruction amendments because you argued that freedom of expression was kind of central to what they were doing there you say this civil war generation textualized their prism in the reconstruction amendments themselves for them the first amendment was indeed first not just in text but in importance reconstruction republicans had seen with their own eyes massive suppression of political speech and religious speech you quote according to elsewhere the republican party had been functionally outlawed in the deep south in the 1850s men of the cloth had been prosecuted and imprisoned indeed threatened with capital punishment for preaching in the pulpit that slavery was sent and lincoln had gotten zero and i didn't know this this is in fact a new fact for me he got zero popular votes south of virginia and not not electorals popular votes because the republican party was criminalized in the 1850s way more than the communist party let's say in the 1950s yeah you say the basic slogan of the republican party in the presidential election of 1856 which had fremont as the republican nominee i believe did indeed treat expression rights as first freedoms the party thus famously stood for quote and this is their slogan free speech free press free men free labor free territory and fremont their nominee right this is their tippecanoe and tyler2 make america great again change i like that's their slogan and their slogan is because they're punting fremont but they believe in free speech free soil free territory free press and all of these freedoms had come under attack by state and local government so you need this second bill of rights no state shall but note how again is picking up us in this same word no shall make law a bridge but now we're limiting not just congress and the federal government in the anti-federalist tradition but states and localities in a reconstruction republic reconstruction republican nationalist tradition so so those those reconstruction amendments i think kind of did did a lot of what the original bill of rights couldn't do or wasn't interpreted to do i and i don't want i don't want you to wiggle out of the question and i maybe didn't ask it directly previously do you think ultimately it was a good idea to include the bill of rights absolutely central because i think the federalists goofed at philadelphia they didn't think about it very much they just wanted to get out of town to go home to their um wives um and their their their families um um i basically say they they were hot and homesick and then they switched and they switched first of all but does your approval of the the bill of rights is your idea that that was a good idea rest on a invigorated ninth amendment that didn't actually come into fruition ah so so let me okay so several here's why the bill of rights was a great idea at every level okay because substantively they made a mistake and they came up with bologna excuses you know it's bad and we have one you know it's it's like in any hall the food is horrible in such small portions okay um bill of rights is dangerous oh and we already have one no attender no exposed factor law um no title of nobility a jury trial um um uh um so um uh so their arguments for not having a bill of rights were not good um a bill of rights if it's a bad idea oh why do states have them you know all the states stupid no it's a good idea um and so they were substantively right to pivot they were also right to suppose the bill of rights wasn't such a good idea but if a lot of people think it is and you want to actually listen to them and you want to actually because it's not so easy to govern america 51 48 the constitution barely gets ratified in a whole bunch of places bring people into the coalition bring them into the tent create a government of national unity um so so politically it was smart because it's now bringing the anti-federalists in and making them partners making them co-authors of the project saying hey we're listening to you even even if your ideas aren't brilliant as long as they're not horrible now you're part of the project as well and and freedom of speech you know the press is ultimately in part about um how we how we work together as a society and and and so that was brilliant but they saved face they said actually we did have one genuinely realistic concern the federal government is a government of enumerated powers state governments aren't um and so we don't want to imply that the federal government has more power than it does by identifying certain rights that suggest that there was power to begin with and by the way even apart from the federalism issue we're not sure we can itemize all the rights there's so many more than we might be able to specify and that becomes the ninth amendment it's a brilliant idea now so that's all good so who's bad judges have been bad you know from work on down and not taking the the um a ninth amendment seriously and for the longest time not paying attention to the privileges or immunities clause of the 14th amendment but but in fact even though they don't say ninth amendment they don't say privileges and immunities in fact judges do at their best and have for a fair amount of time recognized unenumerated rights that's griswold versus connecticut that where where for example does the constitution's text say that a criminal defendant has a right to take the stand it doesn't and yet courts enforce that naina there are a robust tradition of unenumerated rights just we don't call them by their proper names which is ninth amendment and privileges and means we call them by this unfortunate phrase substantive due process that was going to be my next question i was like have judges had the wrong parts of the constitution doing the work right the ninth amendment and the privileges or like i believe like the privileges or immunities clause has only been utilized to like to to recognize a right to use like federal waterways yeah it's like something ridiculous like that so this is like i see people who don't take the text the constitution seriously make all sorts of objections but sometimes the objections cancel out okay they say oh um substitute process is made up um so the constitution's text doesn't matter and and the ninth amendment and the privileges and amuse clause are disregarded so the constitution's text doesn't matter and i'm i'm like someone saying oh i found two unmatched socks in my dryer i'm going to put them together that's actually a pair in fact the constitution's text is being followed is just not perfectly we're calling privileges and immunities the ninth amendment substantive due process when we should call them ninth amendment and privileges are immunities but here's one bigger point that's a that was descending into some sort of technical lawyer here's the biggest point about judges so so i think bill of rights was a good idea it was a good idea politically because the federalists and anti-federals who had been at each other's throats are actually working together wouldn't it be great if parties actually worked together and substantively i i like what it says um and i think the ninth amendment is a really good idea judges have not been always the heroes of the story here's the point for the longest time judges didn't enforce the first amendment actually john adams signs a law that makes it a crime to criticize john adams and federal judges happily enforce that law they throw people in prison for criticizing the government um states are making it a crime to to engage in core political expression and judges don't do anything even after the first amendment's adopted even after the 14th amendment is adopted judges in america aren't protecting core rights of expression they're making up sometimes you know rights of corporations or of of property folk um but they're not and it's not until the 1930s the first time the united states supreme court ever invalidates any law in the name of free expression as 1930s some state laws the first time the u.s supreme court strikes down a federal law an act of congress as a violation of the first amendment is 1965 lamont versus postmaster general and in the meantime judges unfortunately are um um uh upholding abridgements of freedom of speech in the press the two most dramatic um the three most first the sedition act that john adams signed into law later on um woodrow wilson is gonna enforce a law against eugene victor debs gives an anti-war speech an anti-world war one speech this is a guy gets a million votes for president twice and he's put in prison sentenced to christians for 10 years for giving basically an anti-war speech no different than a george mcgovern speech or a bernie sanders speech in later generations and he's unanimously speak what unanimously puts him in prison for 10 years harding will eventually you know a pardon him but the court isn't enforcing robustly um or expressive freedoms until very late in the game today they are um and but they didn't for the longest time but don't blame the bill of rights for that don't blame the ninth amendment for that don't blame the 14th amendment blame the judges because people like bork are saying these are inkblots they're not inkblots you know actually read the damn thing you know study it um people died for it and and and take it seriously and and people and but the only way you'll know all of that is if you know your history because the words themselves you know can be read in different ways and read out of the constitution but the history is very powerful and that's why i write these books inspired by borg he said oh you got to pay attention to original originalism is not inherently conservative hugo black was an originalist and he's the driving force of the warren court the ninth amendment actually can protect unenumerated rights like like griswold versus connecticut and the rite of of marital privacy um so um um uh uh uh what's that it's that precise argument that frederick douglass essentially eventually came around to right that the constitution is a promissory note even if it isn't as forced as the history or the the text should suggest the martin king in what we call the i have a dream speech actually before he he found that theme toward the end of his remarks about i have a dream he actually was actually the promissory note speech the constitution has all these promises and and they're not being um um delivered the the debs scenario is astounding because another argument you make which we probably should have gotten to earlier is essentially that the whole american experiment presupposes freedom of expression right because self-government requires freedom of expression even if you weren't the first amendment you'd have to have core political expression in order to have free and fair elections and madison says that um in the virginia and kentucky resolves he says that even in 1794 he says the nature of republican government government of the people is that the people get to criticize the government and government can't basically you know try to censor the people and that's exactly what they did with debs that is and but note that word republican okay it's the same word as people in latin but it's also the same word as publish and a publication so what's so interesting is you as we talked about before we have freedom of the press before the first amendment the press publishers are publishing the constitution and the entire constitution the reason it's short is so it can be in newspapers and state constitutions were in newspapers and the declaration of independence was designed to be published in newspapers and so you cannot have this is really one of the biggest themes of my new book the american constitutional tradition is all about a culture of newspapers in particular and and free expression more generally it needs to have robust uninhibited wide open free experience well the big six founders even when judges don't always enforce it and you know um so for example the sedition act here's how i end the book so that's the last words of the book on the 14th anniversary of the death the book ends in 1840 and on july 4th 1840 july 4th the 14th anniversary of the death of adams and jefferson they both died on the same day july 4th 1826 the 50th anniversary of the declaration of defense remember adam's restricted freedom for this edition act jefferson and madison are trying to defend free expression and on the 14 and judges are siding with atoms they're putting people in prison for criticizing the government but on the 14th anniversary of adams and jefferson's death a law is passed saying the sedition act was wrong it was a mistake with the benefit of hindsight this was as unconstitutional statute as any ever adopted and we now hereby apologize for that statute and we pay back the fines that were imposed on people under the original sedition act and that's what congress does on july 4th 1840 um and and the supreme court's not going to say that until new york times versus sullivan in the 1960s but congress actually apologized for it courts haven't always understood this but today the good news is i would say freedom of expression is um respected by liberals and conservatives you are you've argued a little bit too much in some cases you have you have certain claims uh being made under the guise of freedom of expression that probably shouldn't yes um but i i do think citizens united was rightly decided actually and it wasn't about campaign contributions it was about ads well well i agree i mean you couldn't if your whole argument is that newspapers formed the bulk of our political conversation you know was a driving force behind the first amendment citizens united you know if you look at corporations and speech and it had to do with a movie about a politician right you that would have curtailed the citizens united or the um was it the mccain whatever the act was was in place it would have textually prevented newspapers from endorsing candidates from writing ads for those candidates newspapers are corporations and they get to endorse candidates and they get to cover candice with favorable press coverage or unfavorable cr press coverage you have to be able to take out an ad in newspaper saying vote for amarr vote for nico and that's core now here's the tension freedom of many of the first amendment rights are very egalitarian freedom of speech everyone can speak um in in that wonderful norman rockwell um painting the guy's a working-class guy he's wearing a leather jacket his hands are the hands of a working person but it's a town meeting and he's going to get up and people are going to listen to him you know even though he's not wealthy maybe he's going to talk about a pothole or a school board policy or something assembly that each one of us has one body that we can bring to the political a gathering a petition each one of us has one signature we can add um free exercise you know each of us has one soul so a lot of the first amendment is very egalitarian now freedom the press is a little different because back then not everyone had a printing press you know a few wealthy people had a printing press but um the point is the new york times is allowed to editorialize allowed to endorse allowed to cover things and they're a corporation and and random house is a corporation and thank god for them because they published you know a book of mine that i wrote in 2005 and basic books as a corporation and i'm so grateful to them for publishing the words that made us so um and if you don't like the ad don't listen to it here's what i love about ads they have no effect at all it's not campaign contributions are stinky because politicians sometimes find ways of putting the money in their own pocket they use it for private purposes but an ad works if it works only if it persuades actual voters on election day one person one vote secret ballot and corporations don't vote on election day to to vote for smith or or vote for jones or vote for nico or vote for a keel well that's well that's i think one of the underlying assumptions with the criticisms behind you know these independent expenditures is that individuals it's a it's a skepticism of democracy it's it's presumes that people don't have agency because there's something that stands between the ad and the office and it's the voter exactly i couldn't put it better myself perfect i'm gonna i'm gonna steal that from you because and and that's what makes all because if you say well people are sheep they're just too stupid to under uh know their own mice well then we can't have elections in the world the experiments just failed yeah yes our system presupposes voters are able to make up their minds on the basis of information and we can't allow the government to suppress that information flow the arguments that you have yes and i agree conservancy so i'm with the conservatives on citizens united i'm with the liberals for example and saying um government shouldn't be allowed to um uh um to use its funds to shut down legal aid societies in various ways i do think today the first amendment um has a lot of friends on the court and sometimes maybe they carry it a little too far when they treat campaign contributions which are very different than ads as if you know that's a pure speech because it's not it's closer to a bribe or when they say um any when they when they say government when it's regulating commercial advertising um it should be severely restricted because i think governments should be able to say cigarette companies have to have mandatory warning labels and and after we have to be able to regulate misleading commercial advertising government shouldn't be trusted to regulate misleading political ads because i don't just don't trust the government to do that but but they have to be able to to basically say put up billboards saying don't smoke you know and prohibit billboards saying do smoke um because that's connected to and here's why because the government could prohibit uh tobacco altogether it can't prohibit elections but it can prohib it could prohibit the buying and selling of of alcohol or tobacco or gambling but there should be there should be some sort of health or safety net i think you and i would slightly disagree with this and i don't want to get too far afield but like let's say for example back in the you know six seven years ago when this state of new york or the city of new york didn't like uber coming in right they they thought these were unregulated they that um the they wouldn't be as safe as taxi drivers and they sought to shut it down uber in response put out a big advertising campaign mobilized all of its users who fell in love with the products to push back against it i worry about situations or you have the whole discussion around cryptocurrency and the regulation of that and you have some of the big um you have some of the big companies like coinbase for example petitioning the government for redress of grievance organizing things i worry about limiting commercial speech too much i think there's a stronger argument when there's a health nexus perhaps on tobacco advertisements but i i worry about the slippery slope there especially i do too i'm not saying that commercial advertising has no protection whatsoever and and especially she wouldn't give it strict scrutiny exactly the point is the following it's just very simple we have to regulate the commercial domain differently than the political domain when it comes to free speech discourse here's why because um at a certain point we government has to be able to say um of a company this is just fraud you're making false representations in the name of consumer protection we prohibit you from declaring the cigarettes are safe that's just a health and safety um consumer protection so we have to actually be able to regulate um what advertisers can say about their products they can't lie about their products isn't that already illegal though well but if you but here's the point politicians get to puff and lie all the time so what i'm saying is the federal election commission actually shouldn't be allowed to regulate political puffery and misstatements to the same extent that the food and drug administration is allowed or the consumer um a protection bureau is allowed to the federal trade commission is allowed to regulate misleading commercial advertising it can't be governed by the same set of first amendment rules so so there's going to have to be some difference between and here are two reasons why the biggest is i don't trust government to tell me what's politically true and not true yeah you need to establish a sort of ministry of truth um but we do have a ministry of truth when it comes to advertising drugs um or toys um you can't say this toy is safe if it's not safe you know you you can't say for example this is going to help you lose weight if it's not going to help you lose weight so so we do in fact today and have to so regulate them differently so i worry that if um commercial speech is treated identically with political speech either we're going to have too much regulation of political speech which would be bad or an insufficient regulation of false commercial claims which should also be bad so we're going to need to have some kind of distinction between political speech and now you might say well amar where does that come from that distinction between commercial and political speech here's one way it comes from um so because the word speech doesn't distinguish true so what kinds of speech i say political speech is core because even if there weren't the first amendment you'd have to protect that because it it's about how free and fair elections what about religious speech oh you'd have to protect that because of the free exercise clause and the connection between um religious discourse and political discourse whom did we invoke earlier we invoked martin king martin king was a political actor but if you had asked him to describe himself he never would have said i'm a civil rights leader which is how we describe him today he would have said i'm a preacher of the gospel first the gospel of jesus christ first last and all of us everything that i've ever done comes out of that the abolitionists were a religious left you see we've had religious right we have a religion left so by the time of the 1860s people understand oh we've got to protect religious speech in order to protect political speech they're connected what about artistic speech well i would say that's an unenumerated right even if you didn't have the first amendment you know it's part of american identity okay now why is commercial speech is different it's not quite artistic self-expression it's not quite as religious about free exercise and people's souls it's not quite political speech which is you know how we govern ourselves but but where textually would i say political speech has extra special protection because the very word speech the very phrase the freedom of speech historically this is what you know i'm i'm robert burke is telling me learn history comes from the freedom of speech and debate in parliament it goes back to an earlier document in 1689 100 years before madison exactly the english bill of rights of 1689 and it talks about the freedom of speech and debate in parliament what is parliament from the french parlay to speak it's a place for a parliament for a certain kind of discourse but it's not a place to send sell marlboro or cigarettes you know or liquor it's a place for political discourse so freedom the freedom of speech textually and historically was always connected with political discourse and not commercial buying and selling of things because parliament is not a place where you're buying and selling marlborough cigarettes it is a place where there's political disclosure it's where you're parlaying uh the the yes which comes from the french word um as you discussed in some of your art articles here but is the the word the the operative word in that sense because we often forget we think congress shall make null respecting you know the freedom of speech we think abridging of freedom of speech we often think oh it's so clear you know all speech is free congress shall make no law but as jeffrey stone argues the suggests a concept of freedom of speech yes it needs to be defined i agree completely and alexander mikeljohn thought that and harry calvin thought that and and owen fist thought that and i think that it's congress can pass laws of bridging speech but not a thing called the freedom of speech which is nearly an absolute and what is the freedom of speech in parliament here's what it is as i understand it if it's in order for someone to get up and say i support this bill a 3.5 trillion dollar package or whatever or you know obamacare if one person get up and say i support this bill someone else has to be able to get up and say i oppose this bill what it is is the near absolute freedom of political expression political opinion and and that's nearly absolute and and and and rockwell captures it beautifully what's his image of freedom of speech remembers for freedoms he has freedom of worship you know and freedom from want freedom of um uh from fear his image and maybe you can even put it up on your show notes because it's so powerful freedom of speech is a guy he's from new hampshire or massachusetts he's wearing a leather jacket maybe he's a mechanic maybe he's a farmer you know a tradesman of certain his hands are very much the hands of a working-class person he's got a rolled-up piece of paper in his um in his uh pocket because he's not used to public speaking but he's standing up and people are going to listen to him attentively um because that's what the freedom of speech is in the town meeting people get to get up and and express their political views it's freedom it's the it's a system of political discourse and it's by the way it's not just the freedom to speak it's the freedom of speech so i have a right as a listener to hear someone else that's the frederick douglas argument it may have a duty i believe as a citizen i have a right to vote but a duty a responsibility to vote to do jury service to pay my taxes and i don't think i can do that if i don't every day um read fox and wall street journal as well as the new york times and msnbc because um i'm supposed to be listening to all of my you know fellow citizens it's not just the freedom of speech it's the freedom uh freedom to speak it's the freedom of speech freedom to listen um and that's what's so impressive about the first amendment is it came about because the federalists listened to the anti-federalists and made common cause so it's so poetic you see that um and and and it talks about the bread of the people to petition assembly assemble and the second amendment is about the right of the people to keep and bear arms and the right of the people to be secure against unreasonable searches of seizures and the fourth amendment and the ninth and the tenth uses the phrase the people also five references to the people where is it coming from from the preambles we the people it's coming out of a process in which we the people are deliberating with each other and talking to each other listening to each other working with each other it's a system and wow um it's um it's extraordinary i i'm tempted to end there but if you have time for one more question you know in the context of some of this it's maybe a little bit further afield but something i've always kind of wondered you know i don't think americans are educated a lot about the articles of confederation i know very little about the articles of confederation but in in in talking about freedom of speech in the united states whenever someone brings a free speech claim now they bring it under the first amendment the federal constitution it's very rare that they're ever brought under state constitutions although i i believe new jersey has a very strong protection so so it's sometimes brought there do you yeah do you believe that there was any redeeming qualities of the articles of confederation in this context or other contexts especially when you see today the progressive and i mean this temporally not politically concentration of power within the federal government which i don't believe even when they constructed our current constitution they envisioned the so much power in the executive for example but wasn't necessary to get rid of it because it was not a good confederation or constitution for a new nation because you almost needed a strong federal central government in constructing a new nation might have been a better government for something that was all it was more strongly established or had been established longer we needed to get rid of it and it has some admirable features and i'm going to read you the permission about a page from the book of course please but my book um there's a whole chapter on the articles confederation and um and why they collapsed and they had to because they weren't sufficient to protect america from foreign threats the constitution is basically designed by and for george washington so he can protect us against the brits the french and the spanish because they could come back yeah we beat them once but they could come back so articles weren't strong enough to basically protect america against foreign threats so that's why the preamble talks about common defense so so powerfully so the articles weren't working in a nutshell you need a navy you need an army for that you need taxes and articles and you need to regulate commerce and the west and the articles couldn't do that very well that said the articles had some brilliant features and i'm going to read you um two of them one about three one about a bill of rights that the article that the articles confederation came up with in a certain way one about anti-slavery provisions that the articles confederation generated and one about treating people in the west um with respect um which and the brits didn't do that to americans but the americans are going to do that on the coast they're going to treat with respect they are western cousins so here's the passage um um so on june jul assuming july 13 1787 as the philadelphia framers are coming up with a new constitution the con federation congress is coming up with a thing called the northwest ordinance to regulate the west western settlers were offered a basic bill of rights um quote as articles of compact between the original states and the people in the uh uh uh western settlers were offered a basic bill of rights quote as articles of compact between the original states and the people and states of the said territories would be forever unalterable unless by common consent so so see when the constitution doesn't have a bill of rights and yet the northwest ordinance did that's not just the states have it you know the northwest ordinance had one this rights catalog expressly included the free exercise of religion trial by jury habeas corpus due process a common law judicial system just compensation for takings of private property a ban on immoderate fines and improper punishments broad access to bail protections against contractual impairment a promise of a properly apportioned local assembly and more the ordinance also embraced egalitarian inheritance rules restricting old world primogeniture and provided for a system of public education wow that's impressive so in emphatic okay so um uh um uh uh then uh uh um the ordinance also said this and then i talk about a whole bunch of other impressive things that it says quote there shall be neither slavery nor involuntary servitude in the said territory otherwise than the punishment of crimes were of the party shall have been duly convicted unquote so they prohibiting slavery in the wet in the northwest some 30 years later a lad who would grow up to be history's most famous northwesterner would move with his family into this region the family was drawn to this region in part by the free soil vision of the ordinance when this lad abraham lincoln became a man he would spearhead an amendment to the u.s constitution that would take the ordinance's anti-slavery words virtually verbatim and make them the supreme law of the land for all america not just for lands north and west of ohio so the northwest ordinance came from the articles of confederation congress and it was a proto 13th amendment slavery wow okay and here's how i am so had a bill of rights you know that was good in the northwest ordinance it prohibited slavery for the northwest that's impressive and finally it treated the newer americans equally with the older americans here's how i end this and i'm going to take us back to chapter one that very first passage that i read before in proclaiming george the third king from the courthouse balcony in the waning hours of 1760 because that's why i begin with you know america hailing george iii the english born and royally appointed governor francis bernard aptly enough had faced east toward london and toward the past most of his american-born audience doubtless unaware of the poetic portent of their stance and faced west toward lexington and concord toward the future toward the vast continent that stretched out before them and toward unborn states that would one day join the first 13 as full and equal citizens in the 1760s and early 1770s arrogant londoners had treated their western cousins and the colonies like children in the confederation congress's single most impressive accomplishment his members were all pretention to lord over their own western cousins so that's pretty impressive it it failed for certain reasons it had to fail but it still did some pretty impressive things and i think that's kind of a poetic note to end on here you know looking back towards those early passages that we read so professor i i'm sorry for keeping you so long i could talk to you all day i have more questions let's let's do another one in in a few months yeah yeah i will uh reach back out to you and we can hopefully continue that conversation and we're going to rebroadcast this one on our podcast with your permission yes yes absolutely i i i wanted to ask you kind of about the territories and the because you had the territories and you you talk about the plenary powers and giving them build of rights but it's they still was taxation without representation right in a certain state but oh i i skipped that passage if you if you wanted they actually provided for the earliest possible um uh admission of new states as soon as actually these territories had sufficient minimal population they were going to be admitted as new states on equal footing i i jumped over some of that precisely so that this was going to be just a very temporary period and then they were going to be represented just like everyone else except uh residents of washington dc as that so that's yet another story for another day yeah i'm in virginia i'm actually in the part of virginia that was reincorporated into virginia so i'm partially believing that that portion of dc that's most logically in maryland should be brought back right because that's what they retroceded the virginia part they could retrocede the maryland part except for maybe 10 square blocks or something yeah i think that's the compromise to make but we can't compromise in congress these days that's what the bill of rights you see in the first amendment i said forget what his words say think about at a meta level at a meta level what it's all about is a compromise between federalist and anti-federalists the anti-federals get their amendment the federal save face they add a ninth amendment the anti-federals are brought on board the federalists sort of pivot and say actually you have a point maybe we made a mistake um wow that's actually the first amendment is the product of itself free speech and free press and a process of mutual accommodation listening to each other well i appreciate you uh listening to me for this last hour and a half i think our listeners really enjoy hearing from you as well professor thanks for coming on the show thanks that was sterling professor of law and political science at yale university akil read amar his new book is called the words that made us america's constitutional conversation 1760 through 1840 and his excellent podcast which i encourage you all to listen to subscribe to and rate is titled america's constitution to learn more about professor mar's work you can visit akilamar.com this podcast is hosted produced and recorded by me and nico perino and edited by aaron reese learn more about so to speak at twitter at twitter.com freespeechtalk or on facebook at facebook.com so to speak podcast we take feedback at so to speak at the fire.org if you enjoyed this episode please rate review that's what helps us bring new listeners to the show and until next time again i thank you all for listening [Music]

Channel: Foundation for Individual Rights and Expression

Views: 3,969

Keywords:

Id: RDXV7P9P7Es

Length: 96min 49sec (5809 seconds)

Published: Thu Sep 30 2021