America's Unwritten Constitution: The Precedents and Principles We Live By (29 page)

This criticism of the landmark
Sullivan
decision misses the point—indeed, misses many points. True, Blackstone defined press freedom narrowly: “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no
previous
restraints upon publications, and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” It is also true that leading Americans in the early republic often invoked this stingy definition. Most notably, Federalist Party supporters of the 1798 Sedition Act leaned heavily on Black-stonian ideas in claiming that the act was perfectly constitutional, as it imposed no licensing scheme or prepublication censorship.
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But America’s free-expression regime meant much, much more than the partisan supporters of the Sedition Act admitted. For starters, let’s recall that virtually absolute freedom of political expression formed part of the process by which the Constitution sprang to life—part of the document’s very enactment—even before the phrase “the freedom of the press” was added as a postscript.

Textually, the First Amendment protected not merely “freedom of the press” but also “freedom of speech.” Speech freedom had never been understood in early America as confined to a no-licensing and no-prior-restraint principle, and it is hard to see how anyone at the Founding who took even a moment to muse on the differences between the words “speech” and “press” could have thought otherwise. It was at least imaginable that an eighteenth-century government might require that anyone seeking to operate a printing press—not exactly a household item back then—first obtain an official permit. (Indeed, earlier English governments had done just that.) But what would it even mean for government to insist that a person needed a permit to open his mouth and speak?

Ordinary American citizens’ freedom of speech derived from sources different from and deeper than press freedom. The phrase “freedom of speech” built upon English freedom of speech and debate in Parliament. In eighteenth-century England, however, only members of Parliament could opine without fear. In post-Independence America, all citizens could do so—because in America, “We the People” were sovereign. Under the Constitution’s legal hierarchy, “We” did not answer to Parliament. Rather, parliaments (Congresses and state legislatures) answered to Us. Thus, the First Amendment textualized the American Constitution’s structural postulate of popular sovereignty. Here, the people would rule and were therefore free to think and opine as they wished.

The chief draftsman of the First Amendment, James Madison, said all this—first in a brief aside at the very moment he introduced his draft amendment in Congress; more clearly in 1794, when he declared that, “[i]f we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people”; and most emphatically of all when he explained in 1799 why the Sedition Act of 1798 was a constitutional abomination. Note how Madison’s repeated 1794 references to “the people” and its cognate word “Republican” gestured toward the Preamble and the Ninth Amendment, both of which endorsed the supreme authority of “the people,” and toward the republican-government clause, whose spirit governed federal action even though its letter applied only against states. (Surely the federal government, if unrepublican, could not be trusted to guarantee the republican-government principle against states. Thus, the deep logic of the republican-government clause presupposed that the federal government would itself remain republican.)
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In their first opportunity to weigh in on the matter, American voters sided with Madison, vaulting his mentor and fellow free-speech champion Thomas Jefferson into the executive mansion and sweeping the Jefferson-Madison party into congressional power. These self-described Republicans immediately repudiated the 1798 precedent—Congress by refusing to revive the law when it lapsed thanks to a sunset clause, and Jefferson by pardoning every person who had been convicted under the law. On July 4, 1840, Congress made further amends by reimbursing fines that had been imposed. According to the accompanying committee report, the 1798 act was “unconstitutional, null, and void.…No question connected with the liberty of the press…was ever more generally understood, or so conclusively settled by the concurring opinions of all parties, after the heated political contests of the day had passed away.”
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And speaking of making amends—and amendments—let’s not forget that the framers of the Fourteenth Amendment guaranteed a broad freedom of expression against any government that tried to suppress opinionated citizens, whether
ex ante
or
ex post
. Speech was perhaps the “privilege” most often mentioned in the Thirty-ninth Congress, which declared that states must henceforth honor all fundamental “privileges [and] immunities of citizens.” In the previous decade, the Republican Party had made
its core commitments unmistakably clear, as summarized in the 1856 campaign slogan, “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”
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To anyone with any real sense of the document and its history, the propriety of protecting a Yankee newspaper from an all-white southern government hostile to outside agitators (and to in-state blacks seeking interstate alliances) was obvious.
Sullivan
was an uncanny case of déjà vu, as democratically deficient southern governments in the 1950s and early 1960s tried to return to their playbook of the 1850s and 1860s.
Sullivan’s
specific doctrinal rules protecting those opining against the government and the status quo vindicated core constitutional values that had been present at the creation and pointedly reaffirmed after the Civil War. Also apt was the Court’s general insistence that America remain a land of “uninhibited, robust, and wide-open” political discourse, permitting “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Here, too, the document and the doctrine cohered.

IN AFFIRMING A RIGHT OF CITIZENS
to launch “vehement, caustic, and…unpleasantly sharp attacks on…public officials,” the
Sullivan
justices knew whereof they spoke, for they themselves had long been the targets of just such attacks. Indeed, in the years immediately preceding
Sullivan
, criticism of the Court had reached a crescendo, thanks to two intensely controversial decisions,
Engel v. Vitale
and
Abington v. Schempp
, that had decreed an end to governmentally organized prayers in the public schools. Despite all the outrage, these cases had in fact sensibly interpreted and applied the Constitution.

Critics charged that these cases turned the establishment clause—“Congress shall make no law respecting an establishment of religion”—on its head. Codifying the general absence of Article I power to regulate religion in the several states, these words made clear that Congress could not establish a national church and made equally clear that Congress could not disestablish any state-established church. After all, any attempted disestablishment would be a federal law “respecting” (that is, regarding) “an establishment of religion.” Thus, the establishment clause told the federal government to keep its nose out of religious policy and to allow such matters
to be handled by the states. Yet now the Warren Court, a branch of the federal government, was interfering with state religious policy—and in the name of the First Amendment, no less!

But, strictly speaking,
Engel
and
Abington
were not First Amendment establishment-clause cases. Rather, they were Fourteenth Amendment cases. To the extent that the establishment clause was, like the Tenth Amendment, a states’-rights provision, the clause did not sensibly incorporate against the states. Yet deep principles of American religious liberty and religious equality did apply against the states as proper “privileges or immunities” of American citizenship. At the Founding, roughly half the states had government-established churches. By the time of Reconstruction, none did. The principle of genuine religious equality—and not merely toleration of dissenting sects—had thus made significant strides in the lived Constitution of actual practice circa 1866. This precept of religious equality, which continued to gain steam over the ensuing century, was the deep principle that
Engel
and
Abington
aimed to vindicate.
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Surely, government could not oblige a public-school child to recite a state-written or state-sponsored prayer as part of a state-run religious ritual. To force, say, a young Catholic to engage in a non-Catholic religious ceremony would violate first principles of religious liberty, principles with deep roots stretching back to the Founding. (Generally speaking, state establishments in this era were marked by religious tolerance and nonco-ercion of religious dissenters, even though these regimes fell short of full religious equality for all.) But once a right of dissenting students to freely opt out of state-organized prayer was recognized (as indeed it had to be under the pre-Warren landmark of
West Virginia State Board of Education v. Barnette
), hard questions arose about whether a genuinely fair opt-out system could work. For in the very act of opting out, religious dissenters would need to stand up and thus stand out. They would need to be visibly and publicly separated from the others during the state-run prayer. In effect, they would need to be segregated from the others in the public schools, at least for that instant.

As we have seen, separate is not always unequal. That is the lesson of separate bathrooms, sports teams, and gym classes for males and females in most public schools today. But separate can well be unequal; and in
the wake of
Brown
and
Bolling
the justices were understandably sensitive to the constitutional problems inherent in governmental policies that physically and symbolically separated and divided America’s citizens—America’s equal citizens!—along formal lines of race or religion. Though perhaps not as incontrovertibly correct as the
Sullivan
decision, the
Engel
and
Abington
rulings thus reflected genuine fidelity to the Fourteenth Amendment’s first principles.

THE WARREN COURT
’
S BIGGEST BLUNDERS
came in the field of criminal procedure. These blunders proved especially costly because of the incorporation doctrine, which operated as a force-multiplier, magnifying the benefits of the Court’s good decisions on individual rights and aggravating the damage of its mistaken rulings. The Court’s worst decisions of all involved the so-called exclusionary rule. In case after case after case, the justices barred the government from introducing concededly reliable evidence of criminal guilt if this evidence was the product of an unconstitutional search or seizure.

It was bad enough to throw out proverbial “smoking-gun” evidence in various white-collar federal criminal cases—something that the Court had been doing ever since the 1914 case of
Weeks v. United States
. It was far worse to extend the
Weeks
doctrine to all state crimes, as the Warren Court did in the 1961
Mapp v. Ohio
decision and a long line of post-
Mapp
cases. Unlike the tamer federal docket, state filings bristled with violent crimes—murders, rapes, robberies, arsons, aggravated assaults. When the Warren Court extended the exclusionary rule to such cases—at times suppressing literal smoking guns and not just metaphorical ones, and doing so in cases where helpless crime victims watched in anguish as their tormentors walked free, grinning—the social costs of exclusion rose not only sharply but also graphically.

Of course, if the written Constitution’s letter or spirit really did support the exclusionary rule, then any justice voting to exclude was simply doing his job and honoring his oath. But the letter of the document said no such thing and its spirit discountenanced exclusion. Various criminal-procedure
provisions of the document aimed to ensure that innocent souls would generally be spared, but none of these provisions supported the suppression of highly reliable physical evidence, especially of violent crime. On the contrary, the Founders mandated public criminal trials precisely so that the truth would out. This open system was designed not only to help innocent defendants win acquittals, but also to facilitate the conviction of the guilty whenever members of the general public might have incriminating testimony or physical evidence to share. Thus, the public has always had an unenumerated right to monitor criminal trials even when defendants have preferred otherwise. Truth promotion, not evidence suppression, animated the document.
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No leading framer ever supported exclusion, and when a defense lawyer floated the idea of exclusion 1822, Justice Joseph Story—antebellum America’s most distinguished constitutional scholar—dismissed the concept as preposterous: “In the ordinary administration of municipal law the right of using evidence does not depend, nor…has ever been supposed to depend upon the lawfulness or unlawfulness of the mode, by which it is obtained.…[T]he evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means.”
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Reconstruction Republicans evidently had a similar view of the matter. With Lincoln’s blessing, the Civil War Congress adopted legislation aggressively seeking evidence from criminal suspects. When Americans celebrated the centennial in 1876, no July 4 oration praised the exclusionary rule, for the simple reason that such a rule did not exist, anywhere. No state or federal judge had yet excluded evidence in the name of the Fourth Amendment or its state constitutional counterparts.
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