Editore"s Note
Tilting at Windmills

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January 5, 2004
By: Kevin Drum

ORIGINAL INTENT....Eugene Volokh clears up some conservative mythologizing about the First Amendment, including the "activist judge" canard:

This also shows the error of faulting liberal judges for "making up the law" in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can't just rely on the text. They can't just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn't even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)

As Eugene points out, there are loads of restrictions on free speech and there have been even more in the past. These include libel law; copyright law; regulations restricting time, place, and manner; advertising restrictions; laws against pornography and wartime sedition; and many others. "No law" has never meant "no law" and never will.

But here's what struck me: Eugene's argument about why judges have to interpret the First Amendment it's too vague and absolute to make sense in the real world seems to me to apply to the entire strict construction school of constitutional law. The entire constitution is deliberately vague and assumes a broad societal consensus about its interpretation that the framers felt it was unnecessary to spell out in the document itself. Relying on black letter text just doesn't work if the text itself has been deliberately left incomplete.

Generally speaking, I've never felt that strict constructionism or original intent made much sense as analytical tools in the area of constitutional law. The constitution simply doesn't address a lot of current problems, and in any case trying to divine the intent of the framers 200 years ago is arguably even harder and more open to interpretation than considering current law and circumstances. Besides, why exalt the intent of the framers anyway? After all, these are the same guys who thought that outlawing blasphemy was perfectly OK regardless of what the Bill of Rights said, and I can't think of any reason why their view on this matter should be given any more weight than our own.

Each generation is responsible for governing itself. I suspect that this was the real original intent of the framers.

Kevin Drum 10:38 AM Permalink | Trackbacks

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