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02/23/2013

Ephraim Unell: The First Word Revisited
Michael Ramsey

Ephraim Unell has posted The First Word Revisited on SSRN.  Here is the abstract:

This short piece reexamines the original meaning of the first word of the First Amendment: “Congress.” Does “Congress,” in the Amendment, refer to the federal legislature alone – or does it function as a synecdoche and convey a broader meaning there, encompassing one or both of the other branches of the federal government?

That the Constitution in Article I defines “Congress” does not mean it has the same meaning throughout. The literature examining the contextual meaning of “Congress” there is scant. Only two sources directly consider the meaning of “Congress” in the Amendment and its implications for the scope and content of the rights there.

My purpose here is to update and expand on those sources. My discussion here reviews and updates the evidence of the (original public) meaning of “Congress” in the First Amendment.

Though the evidence is inconclusive, on balance it tilts to the second possibility. I will show that “Congress” in the First Amendment is best understood as a synecdoche that includes the Executive branch as well.

At Legal Theory Blog, Larry Solum has some thoughtful comments, beginning:

This very interesting paper is recommended.

This issue is fascinating, but my own take is quite different than Unell's.  So far as I can tell there is no direct evidence that "Congress" was used as a syndecdoche--Unell adduces no such evidence.  There is substantial evidence that various First Amendment rights were understood to apply more broadly, but that evidence is consistent with a much more plausible hypothesis--that the Ninth Amendment reflected the understanding that the enumerated rights in Article One and the first eight Amendments confirmed preexisting rights and limits on federal powers.  Of course, there is the familiar difficulty with determining the content of such rights, but the extension of "freedom of speech" and other First Amendment rights to actions by the executive and judicial branches would appear to be an easy case.  Unell deals with a version of this theory briefly in a footnote, but does not discuss its implications for the syndecdoche theory.

I would suggest a third view.  At least with respect to the executive, perhaps this is a false issue.  The executive lacks lawmaking power, as a consequence of Article I, Section 1, and Article II, Section 1.  Any restriction of speech by the executive branch (that has the effect of law) must derive from an authorization by Congress.  Thus, it is subject to the First Amendment, because the authorizing statute is subject to the First Amendment.  As a result, a literal reading of the First Amendment does not pose material problems of executive restrictions on speech.

One difficulty with this view is the question of treaties that restrict speech.  Treatymaking is a presidential lawmaking power exercised without the involvement of Congress as a whole.  So arguably, a literal reading of "Congress" in the First Amendment leaves open the prospect of treaties violating First Amendment rights.  But perhaps "Congress" is properly read as "no part of Congress" -- thus including the Senate acting on its own in consenting to treaties.