Natural Rights and the First Amendment

Jud Campbell
University of Richmond School of Law

Abstract: The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, how­ ever, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Original Meaning and the Establishment Clause: A Corpus Linguistic Analysis

Stephanie H. Barclay
Notre Dame Law School

Brady Earley
Brigham Young University

Annika Boone
Harvard University, Law School, Students

Abstract: Debates about the original meaning of the Establishment Clause are gaining increased attention in light of the Supreme Court’s recent cert grant in The American Legion v. American Humanist Association, a case about government displays of religious symbols. Scholars have long relied on a host of different methodologies to advance various theories about what the Establishment Clause means. But these methods, often relying on isolated historical examples or unrepresentative samples of language, provide limited insights about how language was understood by the greater population during the founding era. And some proponents of various historical interpretations declare that supporters of other theories have cherry-picked sources or misinterpreted them. Corpus linguistics provides another method of revealing important historical information about the Establishment Clause’s original meaning, but in a systematic and data-driven way. This Article provides the first corpus linguistics analysis of the Establishment Clause, using the tools of a corpus and a sufficiently large and representative body of data drawn from the relevant time period to provide additional information about probable founding-era meaning. This Article does not discount other Mamethodologies or claim to definitively prove the meaning of the Establishment Clause. But this Article does add a piece to the Establishment Clause puzzle, providing information about the most salient characteristics of an established religion, or in other words, those characteristics implicated most often (or not at all) in founding era mentions of established religion. This Article also provides a more rigorous and transparent method for investigating original public meaning than has been employed by other scholars. And by sifting through hundreds of results discussing establishment in a religious context, our Article is able to bring to light new historical sources that have been previously overlooked. This Article’s findings indicate that by far the most common characteristic discussed in the context of an establishment of religion involved legal or official designation of a specific church or faith. Beyond that, the most common characteristics of an establishment of religion involved (1) government coercion of individuals involving prohibitions or mandates on religious practices enforced by legal penalties or government persecution of dissenters, (2) government interference with affairs of both the established churches and non-established churches, (3) preferential public support of the established church (particularly in the form of direct taxes levied for the church), and (4) restrictions of civic or political participation to members of the established church. Our results are thus consistent with a modern constitutional theory that treats any one of these characteristics as a necessary condition for an Establishment Clause violation. On the other hand, our data did not reveal confirming evidence for a number of current theories regarding the original meaning of the Establishment Clause, including (1) concerns about government display of religious symbols, (2) enactment of Sunday closing laws, (3) prayers or religious practices in public schools, (4) providing religious exemptions to religious believers in an even-handed way to protect conscience, or (5) providing preferential treatment to religion in general over non-religion. Our results only indicated that public support of religious organizations was concerning historically in certain limited circumstances, such as when provided preferentially only to the established church. Of note for religious symbols, our findings indicate when concerns about such symbols or imagery did arise, they arose in the context of government suppressing or destroying symbols of dissenting churches. The pending American Legion case may provide an important vehicle for the Supreme Court to revise much of its current jurisprudence that is out of step with an approach that focuses on historic hallmarks of established religion that gave rise to the Establishment Clause.

Last revised: 17 Sep 2019

The Original Fourth Amendment

Laura K. Donohue
Georgetown University Law Center

Abstract: The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon.12 Outside of that narrow circumstance, the government was prohibited from search and seizure absent approaching a magistrate and, under oath, providing evidence of the suspected offence and particularly describing the place to be searched, and persons or things to be seized. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met by the government before it may intrude on one’s person, papers, and effects. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment.

Pub. 2016

The Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation

John F. Stinneford
University of Florida Levin College of Law

Abstract: Very briefly, my argument is that the word “unusual” was a term of art that referred to government practices that deviate from “long usage.” Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed “long usage” – that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys “long usage” is an “unusual” practice, or an innovation. The word “unusual” is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty. The implications of recognizing the original meaning of “unusual” are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration – a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current “standards of decency,” which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word “unusual,” courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion.

Last revised: 31 Aug 2009

Three Keys to the Original Meaning of the Privileges or Immunities Clause

Randy E. Barnett
Georgetown University Law Center

Abstract: Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable.

Posted: 21 Feb 2020

Who Are “Officers of the United States”?

Jennifer Mascott
George Mason University – Antonin Scalia Law School, Faculty

Abstract: For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the First Congress following constitutional ratification. Both suggest that the original public meaning of “officer” is much broader than modern doctrine assumes—encompassing any government official with responsibility for an ongoing governmental duty. This historic meaning of “officer” would likely extend to thousands of officials not currently appointed as Article II officers, such as tax collectors, disaster relief officials, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure because it would involve redesignating these officials as Article II officers—not employees outside the scope of Article II’s requirements. But this Article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank and hire candidates. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency inherent in the Appointments Clause.

Last revised: 4 May 2018

Is Qualified Immunity Unlawful?

William Baude
University of Chicago – Law School

Abstract: The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation. Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity. On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. Furthermore, even if these things were otherwise, the doctrine of qualified immunity would not be the best response. The unlawfulness of qualified immunity is of particular importance now. Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.

Last revised: 20 Feb 2018