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35 posts from April 2021


Kurt Lash Guest-Blogging on his "The Reconstruction Amendments: The Essential Documents"
Michael Ramsey

At Volokh Conspiracy, Kurt Lash is guest-blogging on his edited 2-volume set The Reconstruction Amendments: The Essential Documents (Univ. of Chicago Press 2021).  Here are his posts so far:

The Reconstruction Amendments: Essential Documents, a Follow-up to The Founders' Constitution

"The Reconstruction Amendments: Essential Documents," Vol. 1: The Antebellum Constitution and The Thirteenth Amendment

Framing and Ratifying the Fourteenth and Fifteenth Amendments: "The Reconstruction Amendments: Essential Documents," Vol. 2

From the most recent post, on Vol. 2:

One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored. Republicans instead proceeded to create the Joint Committee on Reconstruction and tasked it with determining the constitutional changes that had to be made before the Union could safely allow the return of the former rebel States.

Thus began a constitutional drama that would not be complete until after the passage of two more constitutional amendments. The Fourteenth Amendment would solve the problem of southern state representation created by the ratification of the Thirteenth Amendment and define the scope of post-bellum constitutional liberty. The Fifteenth Amendment would prohibit states from denying the right to vote on the basis of race.

At no point was it certain that either amendment would be passed, much less be ratified. The effort to pass the Fourteenth Amendment almost failed, and its ratification triggered a second civil war (one between Republicans and Democrats). It took the impeachment of an American President and the enforcement of the Reconstruction Acts before ratification was assured. Passing Fifteenth Amendment almost failed due to procedural chaos between the two houses of Congress, and securing its ratification involved kicking a readmitted state out of the Union.

The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event. The documents include the key congressional speeches and debates, state ratification debates and reports, newspaper essays, campaign speeches and documents, and efforts by women's suffrage advocates and black civil rights organizations to shape the scope and content of constitutional reconstruction.

Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Fourteenth and Fifteenth Amendments were open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. In short, members of the public could follow the arguments supporting or opposing proposed amendments, arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons and the nature and limits of federal power.


Michael Dorf on Originalism and Discontinuity (With my Response)
Michael Ramsey

At Dorf on Law, Michael Dorf: Originalism's Discontinuity Problem (criticizing Judge John Bush's opinion in Pre-Term Cleveland v. McCloud, discussed here).  Professor Dorf makes several interesting points, the most important of which is this:

I come now to [Judge Bush's] point (2) [that "where a case presents a constitutional question of first impression, a lower court judge should apply the Constitution's original public meaning"] ...  Suppose that SCOTUS precedent clearly establishes some rule X. Suppose further that rule X doesn't directly cover some new situation but that faithful application of the general principles giving rise to and compatible with X appear to cover the new situation. However, applying X here would lead to a result contrary to the original meaning of the underlying constitutional provision that the SCOTUS interpreted using nonoriginalist methods to derive X. Under these circumstances, Judge Bush says that an originalist lower court judge like himself should apply the original meaning rather than "extend" X.

But here's the thing. Anyone who has sat through even the first few weeks of law school knows that there is no sharp distinction between "applying" a precedent and "extending" one. The whole enterprise involves figuring out how far the rationale of one rather than another rule or standard applies and going that far but no further. Lines need to be drawn, and they are sometimes arbitrary, but if one draws lines with care and attention to the underlying policy rationales, one can smooth over the boundaries between one rule or standard and another. That's nearly impossible to do if a rule or standard abruptly cuts off when a judge determines that some new case would involve its "extension" rather than its "application" and therefore the case is governed by the wholly different purported original meaning of the constitutional text.

For example, courts would sensibly construe the First Amendment's Establishment Clause to forbid the use of taxpayer money to purchase King James Bibles and distribute them to every public school child. Courts also would sensibly construe the First Amendment's Free Exercise Clause to require that a public fire department put out fires at churches no less than at movie theaters. So some kinds of taxpayer subsidies for religion are impermissible; others are effectively required. In between there may be subsidies that are permitted but not required. The dividing lines will need to be drawn with sensitivity to a variety of considerations. It's possible to do that if you pay attention to the underlying interests. It's much harder to do that if you have one regime based on precedent and an adjacent regime based on a completely different view based on (supposed) original meaning. And there is nothing special about that set of examples.

Justice Scalia partially recognized this problem. He wrote (both by himself in A Matter of Interpretation and with Bryan Garner in Reading Law) that stare decisis is an exception to originalism and textualism, adding (in both places) that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core--like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another--as you do if you follow the approach Judge Bush advocates.

It is bad enough that originalists don't have a solution to the discontinuity problem. What's worse, as Justice Scalia's writings and Judge Bush's recent concurrence illustrate, they don't even appear to be aware of the special problem their methodology creates.

My response: I don't see a problem here. 

First, discontinuities abound in law.  Judges routinely decline to extend (i.e., read narrowly) cases they don't agree with on policy grounds, and commentators routinely encourage them to do so.  True, there's a fuzzy line at times between applying and extending (and maybe, as Professor Dorf says earlier in the post) Judge Bush was on the wrong side of that line in McCloud.  But that observation doesn't invalidate the enterprise of declining to extend cases with which one disagrees (for whatever reason).  So I don't see why this is a special problem for originalists. 

Second, I don't see why discontinuity is a problem at all.  There are lots of areas of law where there are special rules that exist because of some historical peculiarity.  Law isn't a seemless web.  So what?  We handle it well enough -- we just say, this area of law has some historical oddities.  The idea that there must be a single, all-encompassing unity to law seems quite unrealistic (and quite nineteenth-century).  Thus, again, there's no particular problem for originalism.  It's actually a pretty easy explanation to say: there are some historical oddities in this area of law because the Court went off the originalist rails at some point, but we declined to extend those rulings.

Here's an example from my article about federal common law and the original meaning of the supremacy clause.  In the Sabbatino case, the Court held that the common law act of state doctrine was actually a part of constitutionally preemptive federal common law that displaced even unambiguous contrary state law.  (The act of state doctrine holds that courts generally will not judge the validity of the acts of foreign states done in their own territory).  Sabbatino's rationale for giving it preemptive effect had to do with the federal government's supposed exclusivity in foreign affairs.  Let's assume the Court was wrong about the preemptive effect of the act of state doctrine as an originalist matter (as I argue in the article) but also assume that for stare decisis reasons we want to preserve the Sabbatino holding.  Some courts and commentators argue that the Sabbatino case should be read to establish a broad constitutional preemption of state laws that implicate foreign affairs.  But I say that (assuming Sabbatino was wrong as an original matter) it should not be extended to matters other than the act of state doctrine itself.

Maybe this result creates a "discontinuity" in Professor's Dorf's terms, in the sense that state laws implicating the act of state doctrine are preempted and state laws implicating other foreign affairs matters are not, without any explanation other than (a) Sabbatino was wrongly decided, and (b) we're keeping it (but reading it narrowly) and not extending it.  But again, so what?  That seems like a good enough explanation to me.  I don't see the problem.

I agree with Professor Dorf to this extent:  First, it won't do to "refuse to extend" a past case based on some immaterial difference in the new case.  For example, Sabbatino was about the acts of Cuba.  I wouldn't say that we should refuse to extend it to the acts of other foreign sovereigns.  Nothing about the historical act of state doctrine turned particularly on Cuba; it was a general rule.  Second, what counts as an "immaterial difference" may be subject to dispute in some cases (thus the fuzzy line between "applying" a case and "extending" a case).  But again, the existence of some uncertainty at the margins doesn't negate the whole enterprise.


Judge Andrew Oldham: Official Immunity at the Founding
Michael Ramsey

Judge Andrew Oldham (United States Court of Appeals, Fifth Circuit) has posted Official Immunity at the Founding (28 pages) on SSRN.  Here is the abstract:

It is unclear to me that originalists’ qualified-immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. § 1983. I wonder whether the more appropriate question is whether officers enjoyed constitutional immunities in 1791, when the People ratified the Bill of Rights. And I wonder whether historical pleading practices—embraced in English common law and by our first Congresses—mean the answer is “yes.”

This Article challenges the premises of the current debate by considering the archetypal qualified-immunity case: a Fourth Amendment plaintiff’s claim against an officer who allegedly executed an “unreasonable” search or seizure. In 1791, the word “unreasonable” meant “against the reason of the common law.” And that common law brought with it a host of immunities for officers charged with searching and seizing. Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer’s search or seizure was not only wrongful but so wrongful that the plaintiff could overcome the officer’s common-law immunities. If that is correct, then today’s originalist critics of qualified immunity must broaden their focus and shift their debate.


Alternative Grounds for Gonzales v. Carhart
Andrew Hyman

The U.S. Supreme Court is currently deciding whether to grant certiorari in the very cert-worthy abortion case of Dobbs v. Mississippi, as I mentioned here on this blog in February.  This month, Ed Whelan again cogently urged that cert be granted in that case.

While we’re on this (grisly) subject, I’d like to discuss the Court’s 2007 decision in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003. That Act probably overstretched the Interstate Commerce Clause.  As Justice Thomas wrote in his Gonzales v. Carhart concurrence, joined by Justice Scalia, “I ... note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”  

Had the scope of the Interstate Commerce Clause been before the Court in Gonzales v. Carhart, the 2003 Act’s attempted ban on a certain type of abortion may well have failed to pass muster, given that abortion does not necessarily involve interstate commerce.  As Professor Glenn Reynolds has noted, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.”  The 2003 Act explicitly requires a link between commerce and abortion (“in or affecting interstate or foreign commerce”), and therefore the 2003 Act essentially bans a null set of “partial birth abortions.”

Perhaps Congress could have legitimately banned surgical chemicals, instruments, and components usable during “partial birth abortion” from entering into any state where “partial birth abortion” was legal, and perhaps Congress could have additionally banned people from producing such chemicals, instruments, and components from scratch entirely within their own state (under logic similar to that used by the Court in the marijuana case of Gonzales v. Raich).  But a ban like that would have affected a very broad range of surgeries other than abortion, because of the dual-use nature of the relevant chemicals, instruments, and components.  Therefore, Congress did not attempt such a broad ban in 2003, and instead purported to instruct people in each state how to use items that had already legitimately moved in interstate commerce, much as Congress’s Gun Free School Zones Act had purported to instruct people where to carry guns that had already legitimately moved in interstate commerce.  Under the misbegotten logic of the GFSZA, Congress could overturn just about any law in any state for any reason.

And that brings me to an alternative rationale for at least part of the federal Partial-Birth Abortion Ban Act of 2003.  The Equal Protection Clause may well authorize that 2003 Act, insofar as it applies to viable human beings, on the assumption that the framers of the Fourteenth Amendment (during the 1860s) understood personhood to be independent of where a human being is located, so that if one living human being of a certain size is a “person” then so is any other living human being of that exact same size.  This alternative rationale for upholding the 2003 Act seems valid under both current Equal Protection doctrine, as well as my more idiosyncratic view of that clause.  SCOTUS has never yet said that Fourteenth Amendment personhood has kicked in by viability, but they have never said it hasn’t either, and to my mind the former seems more plausible than the latter, for the reasons outlined above.  I am not suggesting that SCOTUS would or should defer to Congress on this question, for purposes of the Fourteenth Amendment, only that SCOTUS itself should say when it thinks constitutional personhood has started.

I do not, however, agree with those who suggest that the Equal Protection Clause could be used to protect human beings before viability, because states do not typically protect any born human beings that are so small.  Still, personhood is not a sensible prerequisite for state legislation protecting a pre-viable fetus, any more than personhood is a sensible prerequisite for state legislation protecting animals from cruelty, or protecting corpses from mutilation.  

I hope that courts will not hesitate to ensure that state and federal legislators are able to address the important and deeply-felt issues surrounding abortion.  Legitimate legislative powers cannot be permanently and mistakenly abridged, without establishing an extra-constitutional judicial power to make, perpetuate, and enlarge judicial errors.  One of those errors could and should be reviewed in the Dobbs case.

Gabriel Chin & Paul Finkelman: Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation
Michael Ramsey

Gabriel Jackson Chin (University of California, Davis - School of Law) and Paul Finkelman (Gratz College; Albany Law School) have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation (UC Davis Law Review, Vol. 54, 2021) (70 pages) on SSRN.  Here is the abstract:

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.

Compare my view on Fourteenth Amendment birthright citizenship, which is not inconsistent with this paper as to the outcome -- but I am skeptical nonetheless that the drafters or ratifiers had illegally imported slaves in mind in enacting the Amendment.  Among other things, strictly speaking the people actually imported illegally would not have been citizens under the Amendment, and I don't think anyone thought about this point at the time.


John Mikhail: McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause (Constitutional Commentary, forthcoming) (16 pages) on SSRN.  Here is the abstract:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

This extended review of David Schwartz’s masterful new study of McCulloch (“The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland”) [ed.: Oxford University Press 2019, available here] shines a spotlight on the second, broader reading of the “Let the end be legitimate” passage, focusing on what happened to its robust conception of implied powers during five key episodes of the early Republic:

(1) The Virginia Ratifying Convention (1788);
(2) Congressional debates over constitutional amendments (1789);
(3) Congressional debates over abolition petitions (1790);
(4) Congressional debates over a national bank (1791); and
(5) United States v. Fisher (1805), the Marshall Court’s first Necessary and Proper Clause case.

Like Thomas Jefferson, James Madison, and other elite Virginians whose wealth rested on human bondage, John Marshall probably did not believe, or at any rate was unwilling to accept, that Congress could abolish slavery—even though he knew that a plausible interpretation of the Preamble and Sweeping Clause justified that conclusion. Likely for that very reason, his defense of implied powers in McCulloch was deliberately ambiguous.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended, and much more than just a review... Download it while it's hot!"

NOTE:  For a different take on Professor Schwartz's book from Nelson Lund (George Mason - Scalia), plus my one-paragraph originalist assessment of McCulloch, see here.


Lower Court Originalism from Judge John Bush
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, Judge John Bush's concurring opinion in Preterm Cleveland v. McCloud.  From the opinion (citing, among others, Judges Bumatay and Ho, as well as Professor Blackman):

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to "interpret the Constitution in light of its text, structure, and original understanding" takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) ("The Supreme Court's dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court's dictum as dispositive." (emphasis added)). And if it is dubious whether a precedent "is correct as an original matter," we should "tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension."). In such a case, "the rule of law may dictate confining the precedent, rather than extending it further." NLRB v. Int'l Ass'n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) ("[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.").

This view seems to be taking hold broadly among newer court of appeals judges, with Judge Bumatay as one of the leaders.

(Somewhat related thoughts here from me, from a while back, on how to manage the relationship between originalism and precedent).


Stephen Sachs Goes to Harvard
Michael Ramsey

I don't usually attach much importance to law professors changing schools, but this is sort of a big deal in the originalist community -- Stephen Sachs (currently at Duke) will be the inaugural Antonin Scalia Professor of Law at Harvard Law School, starting later this year. Professor Sachs is a well-known originalist scholar, author most recently of  Originalism: Standard and Procedure (forthcoming in the Harvard Law Review) (noted here).  From the Harvard press release:

Stephen E. Sachs, a leading scholar of civil procedure and constitutional law, will join the faculty of Harvard Law School as the inaugural Antonin Scalia Professor of Law, effective July 1.

Sachs, who is currently the Colin W. Brown Professor at Duke Law School, researches a range of subjects including the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, and the role of the general common law in the U.S. legal system.

“Professor Sachs is a thoughtful, creative, and impactful [ed.: my spell checker doesn't think this is a word, and neither would Justice Scalia] scholar who has offered fresh ways of thinking about law and interpretation and about the structure and content of U.S. law,” said John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “He is also a great teacher and colleague, and I am delighted that he is joining the HLS community.”

Said Sachs: “I am delighted to join the faculty of Harvard Law School, where I took my first law school class from Charles Donahue as a medieval history undergraduate, and where I spent many happy hours reading through old statutes in Langdell. I am particularly honored to serve as the inaugural Antonin Scalia Professor, in recognition of Justice Scalia’s legacy in the law.”

Harvard Law School established the Antonin Scalia Professorship of Law in 2017, in honor of the late U.S. Supreme Court Justice Antonin Scalia ’60. Known for his jurisprudence advancing originalism and textualism, Scalia served as an associate justice for 30 years until his death in 2016.

Congratulations to Professor Sachs!

(Via Brian Leiter's Law School Reports).


Kurt Lash's "The Reconstruction Amendments: The Essential Documents"
Michael Ramsey

Recently published: The Reconstruction Amendments: The Essential Documents, edited by Kurt Lash (Richmond) (2 vols.) (University of Chicago Press 2021).  Here is the book description from Amazon:

Ratified in the years immediately following the American Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote, respectively. This two-volume work presents the key speeches, debates, and public dialogues that surrounded the adoption of the three amendments, allowing us to more fully experience how they reshaped the nature of American life and freedom.

Volume I outlines a broad historical context for the Reconstruction Amendments and contains materials related to the Thirteenth Amendment, which abolished slavery, while Volume 2 covers the Fourteenth and Fifteenth Amendments on the rights of citizenship and enfranchisement. The documents in this collection encompass a sweeping range of primary sources, from congressional debates to court cases, public speeches to newspaper articles. As a whole, the volumes meticulously depict a significant period of legal change even as they illuminate the ways in which people across the land grappled with the process of constitutional reconstruction. Filling a major gap in the literature on the era, The Reconstruction Amendments will be indispensable for readers in politics, history, and law, as well as anyone seeking a better understanding of the post–Civil War basis of American constitutional democracy.

(Via Gerard Magliocca at PrawfsBlawg).


Eric Segall on First Amendment Originalism (with my Comments)
Michael Ramsey

At Dorf on Law, Eric Segall:  The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism.  From the introduction: 

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."

What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much. 

First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions (except Thomas dissented in the violent video games case)....

While I agree with some of the criticisms of specific cases later in the post, I think its general theme is faulty in several  respects.

(1)  Free speech rights under the First Amendment are especially (one might say uniquely) articulated through an elaborate doctrinal structure, much of which lacks originalist foundations.  It's an especially difficult area to navigate for an originalist judge who also has at least some respect for precedent.  The First Amendment cases the post describes are often instances of originalist Justices, when they join a majority, applying rather than fighting the prevailing doctrinal structure.  Thus I think the First Amendment is a particularly inappropriate area to search for purity in judicial originalism.  Moreover, the three cases noted in the post's introduction -- Brown v. Entertainment Merchants [violent video games]; U.S. v. Stevens [animal cruelty]; and Snyder v. Phelps [Westboro protests] were not the product of contested doctrinal reinterpretations by conservative justices.  Justices Kagan, Ginsburg and Sotomayor joined Scalia's opinion in Brown; Justices Ginsburg, Breyer and Sotomayor joined Robert's opinion in Stevens; and Justices Breyer, Ginsburg, Sotomayor and Kagan joined Roberts' opinion in Snyder.  The Roberts Court's support for free speech in these cases was decidedly a bipartisan matter.

(2) The post depends on a version of the First Amendment's original meaning that is highly contested.  Professor Segall writes: "The Founding Fathers were concerned with prior restraints on political speech and that's about all."  Perhaps.  There is some historical scholarship to support this view.  But there are also contrary views, in particular that "the freedom of speech" to which the Amendment refers was a general statement exempting speech from punishment, subject to longstanding traditional exceptions.  (See, for example, this recent book by Wendell Bird.)

(3) Justice Scalia made it clear that he embraced the broader view of the First Amendment's original meaning -- that is, that it prohibited punishment of speech generally, subject to exceptions.  He explained his approach in, for example, a lecture titled "The Freedom of Speech," reprinted starting at p. 201 of Scalia Speaks (the volume of Scalia's speeches edited by Ed Whelan and Christopher Scalia).  Justice Scalia's opinion in the violent video game case (Brown v. Entertainment Merchants), which the post criticizes, reflects that approach.    It uses originalist sources to conclude that there was no traditional exception for speech describing violence, and thus concludes that speech describing violence (including depictions in video games) comes within the general protection of the Amendment.  Of course, one can dispute Scalia's specific conclusion, and one can dispute his general understanding of the First Amendment's original meaning (as Professor Segall does).  But that does not make the Entertainment Merchants case -- or Scalia's general approach to the First Amendment --  non-originalist.

(4) I agree that some of the decisions decided by a narrow conservative majority lack persuasive originalist foundations -- in particular,  Janus v. AFSCME and McCutcheon v. FEC (both of which I criticized on this blog).  But these questionable cases do not make the Court's entire First Amendment enterprise illegitimate from an originalist perspective.  On the whole, I think most of the Court's modern free speech decisions can be justified either as applications of relatively settled precedent or as applications of the broader Scalia view (as opposed to the narrow Segall view) of the First Amendment's original meaning.