First Amendment Originalism Transcript

Joel Alicea:
Welcome to the American Enterprise Institute. I’m Joel Alicea. I’m a non-resident fellow here at AEI and a law professor at Catholic University. I’m also the director of the Center for the Constitution and the Catholic Intellectual Tradition at Catholic University, which is a co-sponsor of this event. We go by CIT for short. CIT promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism. We do that through events like this one, these types of public facing events, but also fellowship programs, courses. You can learn more about us at cit.catholic.edu.

I’m very grateful to Yuval Levin and to AEI for hosting this event, partnering with us. CIT does a number of events with AEI every year, and they’re always such a gracious and supportive host. So we’re really grateful to them for everything they’ve done to put this event together. My RA, Mikey Schwartz, who has been invaluable as well in this effort.

I’d also like to thank the MacArthur Foundation, which generously provided funding to support this conference. It’s encouraging to see such a prominent and important organization valuing the relevance of scholarship on the original meaning of the free speech clause, and the need to promote and encourage that scholarship.

And that’s why we’re here. This conference is called First Amendment Originalism. It’s about the original meaning of the free speech clause in particular. And, it’s a very timely conference. This conference is coming at the right time because tomorrow, January 30th is the 50th anniversary, the Supreme Court’s decision in Buckley versus Vallejo, which is a foundational case in modern campaign finance jurisprudence.

The court’s more recent campaign finance cases have steadily overruled aspects of Buckley, and the Supreme Court will decide a significant campaign finance case this term, National Republican Senatorial Committee versus Federal Election Commission. At the same time, a majority of the Supreme Court now self-identifies as originalists, that is they believe that the Constitution should be interpreted according to the original meaning of the Constitution.

Free speech doctrine, and campaign finance doctrine in particular, you might say, has a reputation for not being very originalist, for not having much of a connection to the original meaning of the free speech clause, yet the Court has shown an interest in bringing originalist or historical principles to bear in interpreting the free speech clause, especially in recent years. So for example, there was this case called Houston Community College versus Wilson, where the court relied heavily on historical tradition going all the way back to the founding to uphold the power of institutions to censure their own members based on the speech of those members.

So there have been indications that the court would like to move in a more originalist direction, even in the free speech domain. But the question is, how do they do that given that so much of free speech doctrine doesn’t seem to be originalist?

And the campaign finance area, because it is so notoriously not self-consciously originalist, seems to be a particular point of emphasis in thinking about that question. So we have a court that’s interested in deciding free speech cases on originalist grounds, but current doctrine, including campaign finance doctrine, is generally seen as non-originalist.

And to make matters worse, there is a lot of scholarship on the original meaning of the free speech clause, but I’d respectfully suggest that much of it is kind of indeterminate, and a lot of it isn’t very good. There’s some exceptions to that, but it’s just not an area that has been deeply explored by high quality originalist or even non-originalist historical exploration in my view.

Joel Alicea:

So one of the main purposes of this conference is to encourage further scholarly exploration of the historical, the original meaning of the free speech clause.

Joel Alicea:
Both because that’s an inherently worthwhile and important academic endeavor, but also because there does seem to be an interest on the part of the Supreme Court in that kind of work, and it would be good that they had quality scholarship to rely on in thinking through these questions from a historical point of view.

So to help with that effort, in encouraging further exploration of the free speech clause from an originalist point of view, we have two panels today with six truly stellar scholars. I’ll moderate both panels. Unfortunately, Adam White, who is supposed to moderate the second panel, couldn’t make it due to the weather, and so you’re stuck with me for both panels.

I’ll introduce our panelists at the start of each one in the order in which they’re going to speak. This first panel is titled The Original Meaning of the Free Speech Clause, and we have three top-notch scholars. As I said, I’ll briefly introduce each of them. So I’m not going to give you their full bios, which are extensive and full of really impressive things. I’m just going to note a few things about each one.

Each panelist will have 10 to 15 minutes to give their opening remarks, followed by an informal discussion that I’m going to moderate, and then we’ll turn it over to you all for Q&A at the end.

There is… Let me see here. I think I have some notes about how you can submit your questions electronically if you would like to. So if you’re watching virtually, you can submit questions by emailing them to michael.schwartz@aei.org, or by tweeting them on X using the hashtag #originalism. So first amendment, #originalism.

Okay. And so Mikey is going to be monitoring the Twitter handle and he’ll be able to tell me if there are any questions for our panelists when we get to that part of the event. So as I said, I’ll introduce them in the order they’re going to speak.

So Jud Campbell is a professor of law at Stanford Law School. He’s a legal historian and he has authored what in my view are the most important works on the original meaning of the free speech clause. I earlier said some rather disparaging remarks about scholarship in this area. Jud is a notable exception to that, which is why I assign his work when I teach the free speech clause.

Professor Campbell clerked for Judge Diane Sykes on the Seventh Circuit, Judge Jose Cabranos on the Second Circuit. He graduated from Stanford Law School, holds degrees from London School of Economics where he studied as a Marshall scholar and earned his undergraduate degree from UNC Chapel Hill.

Haley Proctor is an associate professor of law at Notre Dame Law School. Her scholarship focuses on constitutional law and federal courts. Before entering academia, Professor Proctor was a partner at the eminent law firm of Cooper and Kirk, where I had the great privilege of being her colleague for a number of years. She clerked for Justice Clarence Thomas on the Supreme Court and for Judge Thomas Griffith on the DC Circuit. Professor Proctor graduated from Yale Law School and Yale College.

Stephen Sachs is the Antonin Scalia professor of law at Harvard Law School. His scholarship focuses on constitutional law, civil procedure, and juris prudence. He clerked for Chief Justice John Roberts on the Supreme Court and for Judge Steven Williams on the DC Circuit. Professor Sax graduated from Yale Law School, holds a degree from Oxford where he studied as a Rhodes Scholar, and earned his undergraduate degree from Harvard College. So Professor Campbell, over to you.

Professor Jud Campbell:
Great. Well, it’s a delight to be here. Thanks so much for having me. Whenever we ask a question about original meaning, we often come to that question with a deep set of assumptions about what it is we’re looking for. So we already know what rights are. We already know what constitutional text is. And for us to figure out the meaning of the speech clause just requires going back to history and finding the evidence that sort of tells us exactly what it is that the government’s allowed to do or not allowed to do.

And, in my view, we actually need to take a step back in two different ways. So one way we need to take a step back is that the founders often thought very differently about rights, about where they came from, about who got to enforce them and so on.

And then the second way that we need to take a step back is with respect to constitutional text. What is the role of a constitutional text? And in particular here, what’s the role of a declaration of rights? What’s the role of the speech clause or other provisions of the Bill of Rights?

So I want to frame my remarks around those two questions, thinking about how the founders thought about rights generally, and then tying that to how they thought about speech and press freedoms. And then also thinking about how they thought about the Bill of Rights generally, and then tying that to how they thought about the speech clause.

So in terms of how they thought about rights generally, the founders don’t assume that all rights that are deemed to be fundamental operate in the same way. They actually have different notions of fundamental rights that animate their thinking. One of the core ideas at the founding is that humans have certain natural rights. These are rights that come from their humanity, their endowments from God, and they’re things that a person would have in a state of nature, even independent of any governmental authority.

Those are things like the ability to think, the ability to sit patiently and listen to a lecture, and the ability to speak, to express oneself. So basic human capacities or natural rights. Those natural rights then, the thinking went, are recognized and preserved in a social compact or a social contract that individuals unanimously agree upon when they enter into a state of political society.

Now, that social contract is fictitious. There’s not actually any original agreement by which people create a state of civil society, but it still has profound implications for how they think about the nature and extent of governmental power. And the two key aspects of their thinking about what it is that the social compact does with respect to retained natural rights, are first that retain natural rights have to be limited only by the people themselves. Because we retain them, we have to be in control of limitations on those rights.

And then secondly, that the limitations on those rights have to be in promotion of the common good or the public good, that we would only surrender a power to control those rights in situations where it benefits us, as people entering into a state of civil society.

So notice here right off the bat, two things that are really different from how we tend to think about rights. These are rights that are not operating as legalistic trump cards. They’re not saying the government can’t do X, Y, and Z. Rather, they’re providing us a basic orientation for why it is that the government ought to exercise power in limiting personal freedom, including freedom of speech.

The other thing that’s really important to recognize here is, because these rights are retained by us, we are the ones who have the ability to control them and delineate exactly when it is that they should be restricted. This is a power that is sometimes called the power to determine rights, the power to specify exactly when it is that, what it is rights should do, when it is that governmental powers should be limited and so on.

So natural rights jurisprudence for them is not operating in the sort of manner that we think of rights as trumps, as constitutional limits on legislative power and so on. Rather, it’s telling us we need a representative government, one in which we control our own rights.

The founders also think though, that there are certain types of rights that actually do have more determinant limiting effect on governmental power. So some of these rights are aspects of natural liberty that we would never give up upon entering into a state of civil society. The most important of these for the founders is the freedom of religious conscience, but they also have the notion that upon entering a state of civil society, it would not be prudent to give up the right to speak in good faith on matters of public concern, that we need that ability to exercise our capacity to criticize government, to have discussions about what sort of public policy measures are valid and so on, in furtherance of this goal of exercising self-determination. So there’s a notion of a more limited right that does provide more determinant boundaries on governmental power.

And then, the last bucket of fundamental rights are rights that have been recognized through customary law to have imposed more determinant limits on governmental power. These are aspects of the common law that are thought to be fundamental in character. And with respect to speech and press freedoms, the most widely recognized of these limits is the rule that the government cannot create a system of prior restraints, that even pursuant to legislative authority that the people generally have to promote their common welfare, the legislature cannot divest authority over speech to an executive official to set up a system where the executive official decides what can or can’t be published. And that’s an aspect of customary law that had emerged in Britain in the late 17th century, and that Americans in the 18th century widely recognized as being part of their freedom of the press.

So you have these different dimensions of fundamental rights jurisprudence, some of which operate as legally determinant limits on legislative power, but otherwise fundamental rights jurisprudence is largely about justifying self-governance, and not about putting determinant limits up on what it is that the legislature can and can’t do.

So let’s then turn to the First Amendment. And here I want to think a little more broadly about what it is that the Bill of Rights as a whole is doing. I talked before about how you have social contractarian limits on governmental power, and you have customary fundamental law limits on governmental power. I’ll add a third here, which is that at the founding, it was possible to use constitutional text to further specify limits on governmental power. So you could use the text of a constitutional provision to add additional constraints on governmental power that weren’t supplied by customary law, or weren’t supplied by these fundamental principles of social contract theory.

And a good example of this is in Article 6 of the original Constitution, we have a clause saying the government can’t create religious test oaths. So this is a new provision of fundamental law created by text. And there’s some people at the founding who think we should be doing this in the amendment process. We should be adding new restraints over and above what the original constitution imposes to further limit legislative power.

For the most part though, the federalists resist that effort. They think we shouldn’t be changing the terms of the original Constitution. And so, the Federalists, I argue in a recent paper, take a different approach, which is an alternative way of creating a rights provision that is called declaratory. It is an affirmation. It’s using the text as an affirmation of the existence of rights we already have. It doesn’t further specify those rights. It doesn’t add new limitations on those rights. All it does is it reaffirms the existence of certain rights that we already think are fundamental.

And in my view, that’s what the First Amendment does, at least in the speech and press clauses. The establishment clause may actually be a little trickier here. But the speech and press clauses, notice how thin they are. They don’t receive any debate in the first Congress, and all they’re doing is saying, “We have these rights and Congress can’t abridge them.” So what does that then mean? Well, it means that there are, pursuant to the speech and press clauses, certain limitations on legislative authority that we can recognize pursuant to customary fundamental law, the rule against prior restraints, certain limits that we can recognize as being embedded in the social contract itself, the conventional understanding of the speech clause that the founding recognized people’s right to speak in good faith on matters of public concern.

But beyond that, the speech and press clauses, in my view, do not fully specify the ways that legislatures can act outside of those two principles. So there’s a wide space for the people themselves acting through their representatives to make decisions, to make determinations about what exactly this freedom of speech as a natural right entails.

And so, I think we make a mistake if we come to the speech and press clauses and sort of assume, well, they must fully specify everything that the government can and can’t do with respect to limitations of expression. In my view, the First Amendment is not designed to do that. And if we’re trying to approach it from a historical standpoint as moderate interpreters, we’re asking too much of the clause if we make that assumption at the outset. Thanks.

Joel Alicea:
Professor Proctor.

Professor Haley Proctor:
All right. Thank you very much. Thank you to AEI and CIT for this opportunity to talk about such an important issue. So one thing I think we can all agree on, is that the federal judiciary has long neglected the original meaning of the free speech clause. And, the Supreme Court’s recent decision concerning the right to bear arms in New York State Rifle and Pistol Association v. Bruen gives us reason to hope that it is never too late for the courts to revisit their approach to our fundamental rights. And maybe that decision also lights a path to returning to the original meaning of the free speech clause.

And that I suppose is my main qualification to be on this panel. I come to the First Amendment by way of its neighbor, the Second Amendment, which I litigated with Professor Alicea when we were in practice together.

And I’ve done a lot of thinking about Bruen’s approach to ascertaining the original meaning of the Constitution. But I’m not going to begin with Bruen. I’m not even going to begin with rights. I’m going to begin with power, because I think that there is a good argument that the original meaning of the free speech clause is simply that Congress does not have the power to regulate speech. Put differently, the clause does not declare a right or require Congress to respect a right. It denies Congress power to prohibit, compel, or regulate speech, full stop.

So in the time that I have, I’m going to do four things. First, I’m going to situate this interpretation of the free speech clause in the framework that Professor Campbell has just laid out.

Second, I’m going to explain why I think this makes the most sense of the text of the free speech clause, especially when you consider it as in comparison to the Second Amendment.

Third, I will briefly address the history surrounding the drafting and ratification of the Bill of Rights.

And then finally, I will close by reflecting on what all of this means for Bruenizing the free speech clause.

Okay. So let me begin with what I take to be Professor Campbell’s central negative claims in his work on rights, because I don’t dispute them as applied to the free speech clause. One is that the free speech clause does not settle any unsettled questions about the contours of free speech rights. And the second, and he didn’t talk about this as much today, but the second is that it does not delegate power to judges to determine the content of the free speech right, and I agree with that.

Now, in accepting these premises, I don’t want to be understood to say that I think that the concept of the freedom of speech is substantially under determinate. In fact, like Professor Campbell, I believe that the phrase referred to a body of preexisting settled rules and principles, although he and I may disagree about the content and the contours of that body of law.

The question on the table is, to the extent that the freedom of speech needed to be determined, who determines? And my reading of the free speech clause is not that the text itself determined to the content of the freedom of speech, and it is not that the amendment transferred the power of determining its content from the political process to the judiciary. My reading is that it left the power of determining the content of speech where it was before the Constitution was ratified. That is, with the people, and to the extent that they had delegated their power to the states with the state governments, but it denied Congress any share of that authority.

To use Professor Campbell’s terms, the free speech clause is properly understood, neither declaratory nor specificatory of the right. It does not operate on the right at all. It operates on Congress’s power.

Now, we know that the First Amendment acts on Congress’s power, because that is what the text says. “Congress shall make no law.” This forthright denial of power stands in contrast to the Second Amendment, which speaks in a passive voice. The right of the people to keep and bear arms shall not be infringed. The Second Amendment limits Congress’s powers indirectly by codifying a right that Congress must respect. The First Amendment, by contrast, protects a right by limiting Congress’s power to act on it. If natural rights theorists are correct that a political body can respect a right while also regulating it for the public good, then these operations are not necessarily the same thing.

Maybe the framers did believe that some rights were subject to regulation for the public good, but it does not follow that they wanted to give that regulatory power to Congress with respect to speech.

Now, Professor Campbell has rightly pointed out that a provision, this is a quote, “A provision that Congress shall make no law past some threshold does not suggest a lack of regulatory power leading up to that threshold.” So we do need to look at the threshold that the First Amendment sets, which is abridgement. Here, the Second Amendment is also informative. That amendment does not say the right of the people to keep and bear arms shall not be abridged. It uses a different verb, “infringe.” As my Notre Dame colleague, Professor Daniel Slate has pointed out, based on 18th century usage, these two words had very different… Sorry, related but different meanings. When its object was a right, abridge meant a lessening of that right, including through regulation.

Infringe, by contrast, meant to abridge unjustly or in an illegitimate way. So the Second Amendment contemplates some regulation of keeping and bearing arms at the federal level, and that is why Bruen’s framework permits the government to come forward with a historical regulatory tradition to justify its regulation.

The historical regulatory tradition may show that the abridgement created by the regulation is not illegitimate and thus not an infringement, which is what the Second Amendment prohibits. By contrast, the First Amendment seems to deny Congress all abridgements, even otherwise legitimate ones. These textual differences strike me as significant, and the text, rather than any subjective expectation of a historical actor, is the source of our law.

But to the extent that we care whether the framers believed they were doing different things by using different words in the First and Second Amendments, Professor Alicea has shown that the framers of the Bill of Rights took great care in fashioning the text with an eye toward the implication of their words, both for the scope of the rights and the extent of Congress’s power.

So I’m going to turn now to that drafting history. During the ratification debates, one of the most significant objections to the Constitution was that it lacked a bill of rights. Defenders of the Constitution thought a Bill of Rights was unnecessary, would be ineffective, and might be dangerous. Unnecessary because Congress’s limited powers posed little threat to the liberties that weren’t already secured by the Constitution. Ineffective because the Bill of Rights would not neutralize any threat that Congress posed. In either event, the people’s security would depend, in Publius’s words, would depend on public opinion and on the general spirit of the people and the government. And dangerous, because an enumeration of rights might truncate those rights and might imply that power… I’m sorry, imply that Congress had more power to regulate rights like speech than it actually had.

But the people believed that Article 1 gave Congress powers that it could use to reach speech and they wanted assurances that their rights were secure.

There were at least two ways to respond to these concerns. The Bill of Rights could require Congress to respect the freedom of speech and exercising its powers, or it could declare that Congress lacked authority to exorcize those powers with respect to speech at all. Now, those were both plausible solutions and I make no claim that the men who debated and ratified the First Amendment were of one mind on which was the right one.

Some early congressional drafts of the free speech clause resemble the Second Amendment. They describe a right and prohibit its infringement, but the text that ultimately emerged took a different form. The Senate revised the clause to focus not on the right, but on Congress’s power, and to prohibit abridgements rather than infringements. And we do not know why the Senate made these revisions because they debated the amendments behind closed doors. But we know the dangers that hung over Federal Hall in 1789, the danger of unduly restricting rights, the danger of implying too much power in Congress, the danger of creeping encroachments.

Framing the amendment as a categorical denial of legislative power erected a margin of safety around the right, and it did so without specifying its content or implying anything about the scope of Congress’s powers. Just a decade later, James Madison would read the First Amendment in precisely these terms. Describing Virginia’s reasons for denouncing the Sedition Act of 1798, Madison insisted that the First Amendment contained a categorical denial of federal power. He was speaking about the freedom of the press, but the logic of his argument extends to speech as well.

Now, Professor Campbell has argued that the rise of partisan politics in the 1790s gave the Jeffersonian Republicans new reasons to endorse this no-power reading of the First Amendment. And I do not deny that the stories that Madison and Jefferson told about the First Amendment had the virtue of political expediency. I just think that they may also have had the virtue of candor.

At a minimum, there is substantial continuity between the James Madison who introduced the Bill of Rights in 1789 and the James Madison who opposed the Sedition Act in 1798. So what does all of this mean for Bruen’s applicability to the free speech clause? For those who are unfamiliar with that decision, Bruen rejected the tiers of scrutiny and directed courts to adjudicate Second Amendment challenges in two steps.

First, consider whether the challenger’s conduct falls within the plain text of the Second Amendment. In other words, is it keeping and bearing arms? Second, if so, the burden shifts to the government to come forward with the historical tradition of firearm regulation to support the regulation… Rather to show that its regulation is consistent with that tradition.

If the First Amendment prohibits Congress from regulating speech, we do not need Bruen’s second step. All we need to know is that someone is exercising his right to speak as it was understood at the founding. If so, Congress cannot reach his conduct even to regulate it for the public good.

The analysis is different for states. The 14th Amendment now secures the freedom of speech against state governments, but that does not mean that states shall make no law abridging the freedom of speech. Instead, states may not regulate speech in a way that is contrary to the historically determined contours of the right. For that reason, Bruen is a good guide to adjudicating First Amendment challenges against the states. And critically, this act of translation does not depend on modern judicial assessments of government interest or public good.

I’ll close by acknowledging two ways in which, despite everything I’ve just said, Congress may actually be able to act on speech. And I don’t have time to develop these and candidly, I don’t know the right answers, but I want to acknowledge them and I’m happy to explore them more in Q&A.

First, Congress exercises limited enumerated powers with respect to the people of the several states, and the First Amendment declares that those powers do not include the power to regulate their natural right to speak. But, Congress exercises powers of local government in federal territories and enclaves in the district in which we’re now sitting. I do not think that the First Amendment speaks to these powers. I’m not saying Congress may infringe speech rights in those places, only that Congress enjoys whatever regulatory powers are consistent with-

Only that Congress enjoys whatever regulatory powers are consistent with the fundamental rights.

Second, subsequent amendments may have granted Congress powers that it could use to reach speech. So for example, in addition to protecting the freedom of speech against the states, the 14th Amendment gives Congress powers to enforce speech rights by appropriate legislation. At a minimum, this provision allows Congress to pass laws concerning the freedom of speech. Whether it allows Congress to incidentally bridge speech in service of protecting speech rights, I do not know. But whatever powers Section Five grants, Congress presumably override the First Amendment’s original limits. Thank you.

Joel Alicea:
Thank you, Professor Proctor. Professor Sachs.

Professor Sachs:
Thank you all for joining us. Thank you to Professor Alicea for having me and to the other members of the panel. I should say my experience is primarily on the originalism side and less so on the First Amendment side. So in my talk, I’m going to largely take as given Professor Campbell’s account. I’m going to sort of assume that he’s got the history right. I have some interest there because together with our friend Will Baude at Chicago, we wrote an article that sort of assumes that his argument is right and advances it. So I think it is right, but I’m just going to take it on faith here.

And I want to suggest some potential applications of this to ongoing First Amendment disagreements. A lot of originalist work in the First Amendment tends to, as in the Martin Luther example, either fall off the horse one way or the other. Either it says that the First Amendment is a paper tiger and doesn’t really do anything and it lets Congress do whatever it wants, there’s no prior restraints. Or alternatively, it reads the First Amendment as extraordinarily significant and as in hard coding a very strict sort of libertarian code of speech rights.

And Professor Campbell’s account sort of is neither of these things. To use some language that he’s used before, but also that Professor Richard Ray has used, rather than being narrow, unperforated and strong, merely applying in a very few set of cases, but applying with very few exceptions to those cases and applying very significantly to them. Instead, the rights he’s describing are broader, more easily perforated, more easily overcome, and somewhat weaker. So once you know that something is covered by the speech right that may not end the inquiry, we might need to know a little bit more.

The reason, of course, is because these are grounded in natural rights. National rights are very expansive, cover all sorts of things, and yet are also regulable. The government can regulate those rights using the police power for the public good, for various interests, health, safety, welfare, morals, et cetera, but it cannot abridge or cancel those rights.

And the assessment of, is this being done in pursuit of the public good or not is generally for the legislature and only in certain cases for the judges. Whether it’s sort of a laugh test or whether it’s something a little bit stronger than that, I think is not immediately clear from the history, but one could think of it as rational basis with bite. Think, for example, of the slaughterhouse dissent where the justices there said, sure the state says that this is a health regulation, and yeah, the part that says that the butchers have to be downstream, yeah, that makes sense in terms of health, but the part where the butchers have to all belong to the same corporation, that’s not about health. We just don’t believe you that that’s a health restriction. We think that’s actually a monopoly. We think that the judges are capable of making those kinds of distinctions and looking past the sort of purported legislative justification to say, “Actually, this is something else.”

And likewise, you know what’s going on between Peckham and Harlan and Lochner. So everyone agrees that an eight-hour day for mine workers obviously promotes safety, there’s a real problem if everyone’s exhausted in a mine, but bakers, how dangerous is that? It’s not more dangerous than clerks or junior associates or any of a number of people who might be up all night and have to do a lot of work. And so can we look past the purported legislative justification and say, “This really isn’t about health, safety, welfare morals. This is really about big bakeries and small bakeries and getting involved in protecting some interests in the market over others.”

And so it may well be that in First Amendment free speech cases too, the judges are going to be in a position of saying, even as to things that are outside the fundamental positive rights that are sort of hard coded like the Free Press Clause, and even outside the inalienable natural rights, like the good faith expressions of opinion, speaking, writing, publishing, and so on, there might be aspects of free speech that are merely retained natural rights, but where judges would have some wiggle room to say, “Something is wrong with the purported legislative justification here. You can’t restrict speech like that for that reason.”

So where would we find this? And I want to discuss this in the context of two examples. One is advocacy of legal activity and one is campaign finance reform. And I think on the former that the original doctrine might be somewhat more permissive than what the Supreme Court has come up with in cases like Brandenburg. And in the latter, the original doctrine might actually support some of the things that the court has done in cases like Citizens United.

So let’s start with the first topic. So one of the sort of core mission statements of modern First Amendment jurisprudence is the Holmes dissent in Abrams, the idea that time has upset many fighting faiths, that ultimate good is better reached by free trade and ideas. And that is why he argues that it’s insupportable the government’s argument that the First Amendment left the common law as to seditious libel in force says there’s no way that’s true and we cannot allow the government to restrict expressions of opinion in these leaflets that are really just about support for the war and not really about imminent lawless action of the kind that would be an issue in Brandenburg.

On Professor Campbell’s picture, there’s more to be said for the law of seditious libel. Perhaps not the Blackstonian categorization. It seems that there’s a lot of good evidence that the founders in America thought that truth was a defense. The Sedition Act itself required that the statements not just be false, but also malicious, had to be done with intent. And that seems to take it outside the sphere of the inalienable sphere of good faith expressions of opinion. If you know you’re lying about your political opponents to make the government look bad, that might be outside the inalienable protection, might be something government could regulate.

And so then the question is, well, why is it regulating that stuff? And so you get to the things that the majorities in the cases from which Holmes is dissenting are talking about. Things like in Debs, is this expression of a general and conscientious belief or is this something with the natural and intended effect to promote illegal activity? “Are these the substantive evils,” as Holmes puts it in Schenck, that Congress has a right to prevent. This is basically asking the police power question, is this within the sort of hardcore of inalienable rights or is this in the sort of broader penumbral area where we want to know why does Congress care? What are they trying to do here?

And Holmes Abrams descent says, “Look, these are puny anonymities. They’re putting these leaflets. No one cares. The only reason for Congress to get involved is because they’re trying to shut people up about the war.” Whereas the majority says, “No, no, no, this is solicitation.” If you try to ineffectually persuade your friend to assassinate the president, we put you in jail. If you try and ineffectually persuade a million people to assassinate the president, according to Brandenburg, you’re free. Your conduct is constitutionally protected because there’s no risk of imminent lawless action. And the majority in a case like Abrams would say there’s no reason to differentiate between these two.

The question is, what were you trying to do here? Were you trying to ferment illegal activity? If we could prohibit the person who actually engages in the illegal activity, we can stop you. And so long as what Congress is going after, what the legislature’s going after is something it has a right to prevent, has a good police power reason to regulate, it’s not just about the good faith expression of opinion, it’s about stopping the illegal activity, then maybe we’ll give it a little more wiggle room, or at least we, the judges, can’t be the ones to say, “No, they’ve got to stop.”

To be clear, this is not my preferred policy. I worry a lot about cases like the Susan B. Anthony List v. Driehaus case where they prohibited false election speech. And so you can imagine during an election a jury is asked, “Did the political candidate intend to lie?” And obviously you can imagine ways that that would go sideways, but it might be that that’s the sort of decision the First Amendment does not stop a legislature from making or at least a lot more work would need to be done to figure out what exactly is it that prevents a legislature from restricting something that at least as the jury found it is not the good faith expression of opinion.

On the other hand, you have areas where the legislature might be somewhat more tied up. So let’s look at Citizens United, which was a case about for profit corporations engaging in independent expenditures critical of a political candidate or alternatively and in some of the subsequent cases contributing to other entities that engaged in such independent expenditures. One of the theories for why this might be a First Amendment issue is just that money talks, that contributions are a form of speech. And I think that Professor Campbell and some of his other work is correct to say that that’s a hard argument to make, that it’s a form of expressive conduct surely, just like burning your draft guard, but the government regulates burning your draft card all the time. And so the fact that I choose to communicate via contribution wouldn’t get me out of a bribery conviction, and so it might not get me out of a regulation like this one.

Another theory for First Amendment protection here is that the First Amendment doesn’t allow discrimination based on the identity of the speaker. This is something that Justice Scalia emphasized in his concurrence, but the thing is that a natural rights picture of the First Amendment would note that natural rights are for natural persons. General corporation laws or an invention of the modern era, corporations lack the privileges and immunities of citizens under Article 4 and the 14th Amendment. There were no general corporation laws at the founding. And as Vince Buccola at Wharton has emphasized, corporations are creatures of law. They have the powers the legislature gives them.

And so if we wanted to create corporations to say, “Well, you guys can’t engage in political speech of this kind,” why couldn’t we? If we create a corporation whose sole power is to build a bridge, something like that, and they take the money and spend it on political speech, we’d say, “Hey, that’s ultra vires. That’s beyond your charter. That’s not something that we allow you to do.”

So this is not about the sort of standard natural rights picture, but it may be about the police power question because once we allow, once we do have general corporation laws, once we do allow people to form corporations under Delaware law to promote or conduct any lawful business or purpose, once we say, “Hey, it’s open season, form a corporation, do whatever you want.” Now we might need to explain as a police power matter why we’re cutting back when the thing that you’re taking out ads to do is not selling soap, but to criticize a tax on soap or to criticize a candidate who favors attacks on soap. And if natural persons are exercising speech rights together via the corporate form, we might say, “What’s the regulatory interest here in preventing them from doing that in a case where it’s a for-profit corporation as opposed to someone else?”

So Professor Campbell gives the example, there’s no natural right to use the public subway, but if we said, “No using a public subway to go to a protest,” we’re like, “Well, why is the government doing that?” It seems like that’s just trying to stop you from being at protests and there’s no health, safety, welfare, morals, justification. It’s not about subway traffic, there’s no reason why going to the beach on a nice day is any worse for the subway or any better for the subway than going to a protest. So what is the government interest and do we believe you that this is about regulating traffic on the subway and not just about stopping protests?

Professor Sachs:

So you could call this First Amendment Lochnerism, but the good kind, the kind that’s actually saying we need to be sure that the government isn’t pretending, giving a pretextual justification when in fact what it’s doing is trying to squelch speech by natural persons.

Professor Sachs:
And so that’s why it might matter a lot what the interests are that are advanced on the other side.

So in Citizens United, there was a lot of discussion of the anti-distortion interest in Austin. Corporations promote unpopular speech. Not a lot of people agree with them and the government allegedly has an interest in preventing the marketplace of ideas from being distorted in this way. But the reason the government didn’t even advance that argument in Citizen United is that there’s plainly no interest, no legitimate interest in making sure that all speech is popular or in making sure that the amount of speech that is seen correlates with its support in the populace overall. There’s no government interest in preventing the public from changing its mind.

Another theory was that of shareholder protection, the ultra vires claim. They’re taking money from shareholders and using it for causes shareholders might not want. But there too, it’s hard to say that that’s really what’s going on because the complaint was not, oil company executives are taking money from oil company shareholders and using it in ways contrary to their interests [inaudible 00:46:16] oil company shareholders. It’s that they’re too good at representing their shareholders, that they’re trying to do things that will get oil companies more money, which is presumably what shareholders, so long as their shareholders want. So it’s unclear to me that the shareholder protection argument really can fly.

And the key arguments were really about corruption and about the appearance of corruption. Appearance of corruption, I am somewhat skeptical of. If lots of people thought that Jews control the media, that wouldn’t create a government interest in restricting the First Amendment by regulating who can get a job in a newspaper. We would just say, “Look, lots of people think this. There’s the appearance to some of some …” But we wouldn’t say that the government can regulate on that basis. We would only say that the government can regulate actual corruption, not just fake corruption people mistakenly believe exists.

And so when it comes to actual corruption, the question we then have is, is there more corruption involved when a for-profit corporation engages in an independent expenditure as opposed to when a wealthy individual engages in an independent expenditure or indeed a nonprofit, some farm cooperative lobbying about soybeans or something. Is that something where there is less corrupting effect on the body politic? And while it’s true that legislature can make choices and need not get every instance of the problem, some of the evidence of pretext is that it’s regulating in a very weird way if what we were actually concerned about was the use of money to sway ultimate public policy.

So to my mind, it’s really the corruption interest has to, in some sense, be a stand in for the anti-distortion interest because if you didn’t think that distortion was a problem, it’s not clear why the for-profit corporation part of the inquiry would do a lot more work than the other kinds of ways. When the AARP lobbies, is that not corruption? When teacher’s unions lobby, is that not corruption? I mean, it seems like there’s lots of ways for the body politic to become corrupted and to care most about this corner really depends on the anti-distortion interest really doing the work.

So I don’t see that as a knockdown argument for the legitimacy Citizen United on a natural rights, retained rights framework, but I think that there are more legs to the argument than it might otherwise seem. And it strikes me that this is the field on which debates about campaign finance reform and other government speech restrictions need to be fought. Thanks so much for your time.

Joel Alicea:
Thank you, Professor Sachs. So I’m going to give all of you a chance to say anything you want in response to either panelists. Before I do that, I wanted to just add two points for clarification, since we have a lot of people here who are not in the weeds of First Amendment scholarship. One point is I start out by saying there’s a lot written about the free speech clause and the original meaning and some of it’s not great or whatever. And you might be wondering, well, what does that body of scholarship say and why do you think it’s not very good? So just one example is something that Professor Sacks pointed out, which is that a lot of current scholarship, especially older free speech scholarship, took for granted that the free speech clause was just about no prior restraints, which is to say that the government cannot prevent you from speaking, but then on the back end could potentially do something about your speech.

And I think that Professor Campbell’s scholarship makes very clear that that’s not the only thing, that the freedom of speech as a principal, at least as a right, was about. That that might be something that is at the core of the Free Press Clause, but not really the entirety of the free speech right. And I think he does that pretty conclusively, which suggests that there might be a lot more to explore about the free speech clause if it’s not just about prior restraints. So that’s an example of what I had in mind in opening the panel.

Joel Alicea:

But the second thing I would say is that as Professor Campbell said at the beginning of his remarks, his way of thinking about rights challenges a lot of our preconceptions about rights today.

Joel Alicea:
And in fact, the way that a lot of areas of jurisprudence at the Supreme Court think about rights today, including Bruen, this Second Amendment case that Professor Proctor mentioned.

And so when he laid out his view of rights at the founding and how he thought that they worked, some of you might have been challenged by that and thinking, “Well, that doesn’t sound like the way I think about rights. I tend to think about rights more as when the government does something that tramples on this right, that’s it. The government can’t do that. It’s just kind of like a bar, a barrier to what the government can do.” I take a backseat to no one in my admiration for Professor Campbell’s scholarship, but I just want to mention that because everyone here is accepting Professor Campbell’s account, that doesn’t mean that it’s not a contested account of rights at the founding. There are some scholars who would take the view that is more what you probably have in mind as the way rights work in modern jurisprudence.

Joel Alicea:

This is a topic of ongoing debate right now among scholars, especially originalists and legal historians in general about the concept of rights at the founding.

Joel Alicea:
So I just didn’t want the fact that all of us are kind of assuming for the sake of this argument that Professor Campbell is right, and he might very well be right, that that meant that you got the impression that was a settled question in the scholarship right now. It’s very much a live question, mostly prompted by Professor Campbell’s work that has really sparked the conversation. Comments on your fellow panelists remarks. If not, I’m happy to just go into questions, but if you have anything you want to say.

Professor Jud Campbell:
Yeah, so I’ll start off just by saying Joel is being quite modest there. His work is, especially a paper called, what is it? Bruen and the Founding-Era Conception of Rights, is really taking the lead in trying to assert that what the Bill of Rights is up to is specifying or at least recognizing specific limits on governmental power. So to sort of translate that into what I said, Joel thinks, Professor Alicea thinks that there are, in the Bill of Rights, limits that operate as legally determinant specifications like the customary common law limits that I was talking about or the inalienable natural rights I was talking about, and that retained natural rights are just relegated to the Ninth Amendment, if anywhere. And I actually think that’s a plausible view. And then the question is, well, what do we do with the Ninth Amendment? So it doesn’t really answer the question of how to think about retained natural rights in general, but it does at least reorient what we think about the First Amendment in particular.

I just want to say a couple of things about each of their remarks, which were wonderful. So with respect to Professor Proctor, I do want to say that there are people at the founding, and this is true in the 1860s also who used the word abridge in this more capacious way to mean any limitation. So you actually do see a couple of people make this point in the ratification debates that take place in state legislatures in the late 1780s with respect to what are we doing in the First Amendment. They make it as an objection like, “Well, we can’t do this because that would deprive Congress of any and all power.”

And the Republicans similarly make that as an objection in the 1860s like, “What are we doing here guys? We can’t deprive the state governments of all power.” Of course, that’s an argument that then gets picked up by John Campbell, of no relation, thank God. And the argument in the slaughterhouse cases, he thinks that the privileges or immunities clause, which by the way, says no state shall make or abridge, it’s replicating the structure of the First Amendment, therefore deprives the states of the ability to regulate, retain natural rights.

So that argument is on the table, I don’t think it’s right though. So why don’t I think it’s right? Well, just two pieces of evidence, obviously this is a much more extensive debate, but two pieces of evidence. So one, the first Congress, when they initially proposed the speech and press clauses, the House actually passes a parallel provision that operates against states. So what are they up to here? One answer is they’re thinking about what they’re doing in terms of a categorical denial of power. Well, if that’s really what they’re up to, then they would’ve disabled states from banning perjury, banning fraud, like any number of things that restrict speech.

So to my mind, what that tells us is at least members of the House are thinking about the speech and press clauses against the federal government as being parallel to the sort of restrictions that they expect to operate at the state level. Now, it’s true that the Senate then gets rid of the provision that operates against the House. The Senate also, as Professor Proctor is restructuring the amendment, so it says Congress shall pass no law. So what’s going on there? I don’t know for sure because we don’t have the records from the Senate, but I will offer one piece of evidence, which is the House’s provision with respect to the Establishment Clause was initially framed in the passive voice. And it was objected to because people thought, “Well, if we just have a rule against establishments, that’s going to potentially at least operate against state level establishments and potentially even against contractual provisions that relate to church administration, like bringing a lawsuit for the recovery of damages for not paying a minister,” or something like that.

And so the response in the House is to say, “Well, okay, we can rephrase the establishment clause by saying, “Congress shall pass no law respecting an establishment of religion.” So that’s just an answer to the Establishment Clause problem. In the Senate, then what happens is they merge the establishment clause free exercise clause, speech and press clauses. And so to my mind, that merger is just about simplifying the language and the structure, which is the overall thrust of what the first Congress did with respect to the drafting. They just kind of cut the language down to the bare minimum over and over again. This is the structure of the first Congress drafting debates.

And so to my mind, the sort of upshot of this is they’re not changing what they were trying to do, it’s still the same impact in terms of what the power of Congress would be, but now it’s written in a way that is more clearly delineating, this is only operating against Congress, we’ve taken out the implication that we used to have in the first draft of the establishment clause. Oh, by the way, we’ve now also taken out the provision that would operate against states and so we’re clearly specifying this is about the federal government’s inability to restrict speech and press freedoms in ways that abridge those rights. So I think that’s what they’re up to. I don’t think that’s a knockdown argument, but to my mind, it sort of points in the direction of this is a declaratory provision rather than one that’s trying to take away power.

The thing I’ll mention about Professor Sachs’ comments is I think it’s right to say that a lot of the action, if you’re trying to use the historical understanding today, a lot of the action is going to be in that residual bucket of retained natural rights. And there, the crucial question is going to be who gets to decide. If we have to make these hard choices about what exactly is or isn’t going to promote the public good, whose responsibility is that? And here I don’t want to say that the judges have no responsibility. It could be, in especially clear cases, that judges have the ability to come in and say, “Well, the legislature has manifestly exercised power that it doesn’t have. “ That’s the view that Justice Chase has in the Calder v. Bull case. It’s the view the Lochner era judges have, it’s the view by the way that the Republican members of Congress have in the 1860s when they’re proposing and ratifying the 14th Amendment.

But notice that that authority is secondary to the primary authority that the legislature has to determine rights.

Professor Jud Campbell:

And I think it’s especially important to recognize that that democratic authority in legislatures is internal to how the founders thought about what the rights were, which is rights that we hold and that we ourselves have the capacity to determine. So remember that the idea of natural rights is not just about limiting governmental power, it’s about having self-determination, about we ourselves controlling our own rights. And I really worry that we take that away if we just grant that sort of authority to judges to make these sorts of decisions.

Professor Jud Campbell:
So you have to be really careful when you’re exercising that type of power, in my view, if you’re trying to stay faithful to the founders, to do it only in extreme cases where it’s clear that legislatures have acted beyond the scope of their authority. Thanks.

Joel Alicea:
Professor Proctor.

Professor Haley Proctor:
So I’ll react quickly to the three really good points that Professor Campbell makes about the textual provisions that I’m really focusing on. So the first is this issue of the verbs, abridge versus infringe. And I agree that people are of different minds about what the significance of these verbs are. There’s a back and forth between John Marshall and James Madison over the Sedition Act about the significance of the different verbs.

Nevertheless, in the 18th century, abridge was widely used to describe even regulations that were permissible, regulations for the public goods. So you would see people saying that, “Well, my rights can’t be abridged except by law in which I participate in creating.” And so at least there are uses of abridge that make this distinction between abridge and infringe significant.

The second point is the fact that initially the amendments to the constitution would also have restricted state’s ability to infringe the freedom of speech, and so that suggests some sort of parody in the thinking of the framers as to what they were doing with respect to state power versus federal power. And of course, we can say Congress has no power to regulate speech for the public good, it would be far more radical to say that states have no authority to regulate speech at all for the public good.

So I think at the time that Madison’s amendment was still viable, what became the First Amendment still took this Second Amendment like form. It said, the freedom of speech shall not be infringed. And so I think at that time, it is absolutely true that the solution that the House was working.

It is absolutely true that the solution that the House was working toward was we will have equivalent limitations on congressional power and on state power. But then it goes to the Senate and the Senate revises it. Professor Campbell has offered one account for why the Senate would have revised the amendment to take the act of forum, so Congress shall make no law. And I agree that certainly there were concerns that without using Congress as a subject of the sentence this amendment would suggest that the states were not able to establish religion. And I agree that that’s why the religion clauses appear to have been rewritten.

But the free speech clause was revised to the Congress shall make no law form even before the Senate decided to merge the two amendments together. So, it’s possible they were working their way towards this linguistic simplicity, but it also suggests to me that the Senate was contemplating a stricter limit that they would then need to restrict to Congress, so that they wouldn’t suggest that states lacked any regulatory power. And I think those are the three.

Joel Alicea:
Professor Sachs?

Professor Sachs:
Thanks. So, a few thoughts. I would certainly agree with Professor Campbell that, with regard to the residual bucket, legislatures are in the driver’s seat and they’re there for a reason. And a lot of the fights about sort of legislature versus judges, some of it is just where you are on the spectrum of how trusting you are of claims of legislative authority, and sort of what’s the relative downsides, and do we really think that this can be trusted. There are also sort of more categorical distinctions. So, I think it’s fair to say that the folks in the sort of slaughterhouse dissent camp would have, and even the majority when it was an area that they saw as plainly controlled by congressional text, would have said, look, there’s certain categorical judgments that we can make. Taking property from A to give it to B is just not going to fly. We’re just not going to believe the legislature when they say, “This is for good purposes”.

Or alternatively, if the goal is in order to take property today to give it to B, because we think that’s better, that would be a clearly invalid aim on behalf of the legislature. So, there might be things that are like that. There might be things where the anti-distortion interest, for example, you might say like, look, trying to level the playing field in the marketplace of ideas is just not a valid congressional interest, or legislative interest, even though we recognize a very wide swath of interests that are valid, and we’re willing to give the legislature a lot of leeway. Or alternatively to recognize that they have the primary judgment. And our task is merely to say whether they have gone beyond their powers, that theirs is the first move.

The second thing I want to note, and I think that this may help explicate the differences between this model of rights and some other prevailing models of rights, is I think that in a lot of cases, the folks who, the self-described originalists on the court, have often looked at constitutional rights as in the fundamental positive law category. So, I think that some of the disagreements about Bruin might qualify as this. Some of the disagreements about the First Amendment, things like US v. Stevens might qualify as this. So, if you think of the First Amendment as codifying a common law right, then it’s natural to say like, “Well, what were the exceptions back then?” That’s what we want to know, because common law rights have weird shapes. Sometimes they leave stuff out. It’s just some weird historical object that crawls out of the woodwork, and we got to figure out, “Okay, what do we do with this?”

And so if they said, “Hey, that historical right, leave it alone, don’t touch it, don’t infringe it,” then it seems more plausible to say, “Okay, our job now is to figure out whether states restricted carrying a gun on a horse and what inference we could make from that.” And so those kinds of decisions would be very natural, because we’re trying to capture some aspect of founding era unwritten law that was fixed in amber in some relevant way.

And in some ways, like the prior restraint argument, I think almost everyone agrees, takes that form. That’s what we’re doing here. We’re trying to figure out what qualified as a prior restraint, because we know there couldn’t be any of those.

And then the question is, were there things that were of a different kind that were not codified unwritten law, but rather were more general rules about respecting natural rights and disabling the government from acting for particular reasons. And those are the ones that are harder, both because we need to figure out, “Well, is the government acting for this reason?” And especially are they acting for this reason when they tell us they’re acting for some other reason, but we don’t believe them. And so that’s why it feels sort of and mushier, this approach to rights protection, because not all of the rights were necessarily identifying a set list of positive, even if unwritten rights, and then fixing them in amber against legislative infringement. And so it’s really that margin that generates a lot of the disagreement.

Joel Alicea:
Right. And all three of you, I think this has come through in your remarks, but also in your responses, all three of you have an understanding of the original meaning of the free speech clause that is quite different from modern doctrine in various ways. And I think it’d be helpful just in thinking this through, because it’s apparent that the modern free speech clause doctrine differs from the original meaning. I think that everyone agrees on that. It would be helpful to know if there are areas of current free speech doctrine, important areas, not like less significant things, but important areas of free speech doctrine that you think is actually consistent with the free speech clause’s original meaning, even if it’s not a perfect fit, even if it’s not exactly… It’s like roughly a fit with the original meaning. I’m curious if you have any thoughts on that, anyone in any order.

Professor Sachs:
What are some important areas modern versus doctrine to assess?

Joel Alicea:
Well, I mean, content versus content neutral, categorical exclusions from speech, all of campaign finance law.

Professor Sachs:
So, I would say that a lot of the time, place and manner, rules, a lot of the content and viewpoint are trying to get at something, which is the question of, is what the legislature going after the good faith expression of the opinion, the viewpoint? Are they really trying to prevent you from saying, “I’m criticizing the governor?” Or are they trying to do something else? Namely, this is just too loud and it’s three in the morning, and we literally don’t care what you’re saying, just don’t say it that loud at three in the morning. And I think that would be very easy to understand as a, you have a natural right to shout, but you might infringe the rights of others, and we let our representatives decide how to deal with all these conflicts. And if they say, “That’s too loud at three in the morning,” that’s okay. That’s not stepping on the toes of speech in any real way.

Even stuff that’s more complicated. So like RAV, the hypo that just Scalia gives of, could a state prohibit obscenity critical of the governor and have a special penalty, not just for obscene material, but obscene material that makes the city government look bad? And he says, “No.” And that actually I think has some legs under this approach because it’s not just about, is this First Amendment covered? But rather, what’s the government doing when it regulates this? And can it explain why obscenity against the city government is more obscener in the relevant way and such as to justify its prohibition? And if it can’t, then that seems like a problem. It seems like what it’s really going after is the viewpoint, and that’s what it’s not supposed to be doing.

Joel Alicea:
So time, place, and manner might be broadly consistent. Also interesting that your response there seems to be echoing Justice Kagan’s than Professor Kagan’s understanding of free speech doctrine, right? As mostly trying to smoke out an illicit motive for suppressing speeches.

Professor Sachs:
I would think to the extent that strict scrutiny and tiers of scrutiny like that belong, it’s for the John Hart Ely smoking out features, not the, yes, this is a viewpoint, but the government has a really good reason to not want anyone to think this and that I think is more difficult.

Joel Alicea:
Yeah.

Professor Jud Campbell:
No, I think that’s right that if you just ask, did the founders believe in tears of scrutiny? The answer is obviously no. So you got to do some sort of move to get on board with the idea that modern doctrine and its basic contours is in any way a reflection of founding era of constitutional law. And I think that what Professor Sachs just did is the right sort of move, that the First Amendment to the extent it’s recognizing retained natural rights, recognizes the regulability of those rights. And then we have to ask, has the state pursued the right sorts of goals or the wrong sorts of goals?

The thing that I would say complicates this with respect to current doctrine is that the founders thought that the types of goals that the government could pursue included, included communicative harms that change how people think. So what do I mean by that? Well, something like blasphemy. Blasphemy affects how the society thinks about religion. And through that effect, affects people’s behavior, whether they appreciate the solemnity of an oath, whether they have the sort of basic morality that’s necessary to tie them to the social order, to obey law and so on.

And so those prosecutions are unanimously endorsed by founding error judges. Same thing with sedition. And it’s just antithetical to how we now think about freedom of speech, that any sort of interest that the government asserts in changing how it is people think, that’s an interest that now we call a viewpoint-based interest. And therefore, it’s categorically disallowed under the First Amendment. So I think that disjunction creates a really big space between how we tend to think about modern doctrine, the First Amendment under modern doctrine, and how they tended to think about speech and press freedoms.

Now granted, the evidence is largely at the state level. Most of the cases for blasphemy, certainly all of the cases I’m aware of for blasphemy are at the state level, and a lot of the sedition case laws at the state level too. But in terms of trying to justify kind of modern tiers of scrutiny framework, I think that the move you would have to make is exactly the one that Professor Sachs just made.

Professor Haley Proctor:
I don’t necessarily disagree with what they’ve been saying with respect to the state level regulation. Federal, it’s easy. Anything that they say Congress can’t do, they’re getting right. But in seriousness, so one thing that I think a particularly focused textual reading of the free speech clause might lead some people to conclude is because it says Congress shall make no law, it doesn’t restrict other federal actors. Of course, modern doctrine restricts other federal actors. And I think that’s entirely right, because the executive would not have been able to act on people’s speech rights without a law. And if Congress can make no law, then the action wouldn’t happen. So, I guess that’s one way in which I think the modern doctrine is getting it right.

Joel Alicea:
Before I get to, I’m going to turn it to Q&A in a second, but before I do that, just one quick clarifying question, Professor Proctor, about your proposal, which is provocative in a really great way. So, the federal government has power to do all sorts of things that affect speech, if we just think of speech as speaking, right? The speech act, right? So I take it you can’t be intending to say that the First Amendment disables Congress from doing anything that could in any way affect people speaking, because that would be a very sweeping prohibition, where it’s hard to… There are all sorts of things that would seem to be legitimate functions of the federal government under its enumerated powers that I would think that they probably weren’t trying to disable in that way, like preventing perjury in federal court, or before Congress.

So A, tell me if I’m right about that, but if I am right about that, then wouldn’t the question of whether Congress has abridged the person’s speech right… Rather, whether Congress has exceeded its power by regulating speech, just come back to the same question of, well, what did speech mean, the freedom of speech mean? And then we’re just kind of back to the same issue of this contours of the right, and so it’s looping right back into this debate about, is it Professor Campbell’s view, or is it my kind of Bruen and I’s kind of view of it?

Professor Haley Proctor:
Yeah.

Joel Alicea:
Aren’t we getting back to that same debate anyway?

Professor Haley Proctor:
So, I agree with you that Bruen is trickier with the First Amendment, for the reason that you’re identifying, which is the Second Amendment, as you have so eloquently shown, I mean, it describes what it is that it’s protecting. The keeping and bearing our barns literally means having and carrying weapons. Freedom of speech, freedom of press, those are figurative concepts. I mean, they’re figurative phrases that refer to concepts. And do those concepts include all speaking, all words that we would do? And I think probably not, but I don’t think that means all of a sudden all of the restrictions get back into the Bruen first step. And the reason for that is the framework that Professor Campbell was laying out for you all is we have this idea of the natural right to speak, and then we have the determined features of that right.

And so I think anything that would be understood to be within the natural right to speak, Congress couldn’t regulate that as speech. And it might reach perjury, right? I mean, that seems to me to be speaking. And it could be that Congress would have to rely on the states to enforce it. But I do think that there is a more complicated historical inquiry that would have to happen at Bruen step one than has to happen under the Second Amendment. Defamation or seditious libel is still speech. Any sort of defense of a seditious libel law would have to happen at the second step.

Joel Alicea:
I like how my setup to the question was, “Surely you don’t mean this because that’d be way too hardcore.” And your response is, “I might be that hardcore.” So, let’s go to questions from the audience. We have a few minutes for this. I will only ask you to do three things. One, wait for the microphone when I call on you. Second, briefly state your name. And third, ask a question concisely. I will stop you if you start giving a speech, because I want to make sure that we get enough questions in. Okay. Sir?

Professor Sachs:
Speech is not that free.

Audience Person 1:
My name is Roger Cochetti. I am an author and a commentator on technology policy, retired executive from IBM, Verisign, CompTIA Technology Companies.

My question has to do with the interface of advanced technology and free speech. We are on the verge today of a whole new category of speech, and that is machine generated speech. And I’ve been trying to understand this. I’m really inviting comments on how to even think about this, because most machine generated speech has been classified as what I call sort of puppet dogma. In other words, a videotape of a speech is the person who made it, not the videotape. And an artificial intelligence generated speech is the speech of the people who set the algorithms and blah, blah, blah. So these are puppets that… And by the way, if you ask ChatGPT, which I did a minute ago, they said machines are just people. They have exactly the same rights of speech as people.

But the threshold we’re entering now, if we haven’t passed it already, is 100% purely machine created speech, in which the artificial intelligence is not created by a human. The artificial intelligence is created by another artificial intelligence. In other words, second generation, third generation artificial intelligence.

Now, you can always say, well, there was eventually a human back there, a DOS was created by humans, the factory is staffed by 90% robots, but 10% humans, so there’s really a human. But we have a whole new category of speech that we don’t really have very much of today, but we will soon. And that is 100% machine generated speech.

Joel Alicea:
And can we get to the question then?

Audience Person 1:
So when I think about what the founders would have said, they would have said, “Well, that’s like asking what are the speech rights of a mule?” I mean, that’s not a person. The mules don’t have speech. So do machines, do pure, real only machines, have any rights? And how do they compare with human rights?

Joel Alicea:
Yeah. This is a very interesting and provocative question. Anyone have any thoughts on this?

Professor Sachs:

So, I think one way to look at this is to think about cases where we worry about liability for speech that’s directed toward the public as opposed to private.

Professor Sachs:
So, if I put up a shack, this is mushroom advice, five cents, like in Charlie Brown, and someone comes and says, “Can I eat this mushroom?” And I’m like, “Yep, that’s fine,” and they eat it and they’re poisoned, I might be liable. But if I publish a book, Steve Sachs’ Guide to Mushrooms, and I negligently say, “That picture of a mushroom, yeah, that one’s fine,” and someone eats it and is poisoned, there are cases that say they can’t sue me. And likewise, you can imagine going on ChatGPT and typing in, “Here’s a picture. Can I eat this mushroom?” And it might get the answer wrong.

And so the reason why the doctrine, the modern doctrine at least, that says you can’t sue the author for negligence, is not inconceivable on the original picture, because they were engaging in a good faith expression of their opinion. Maybe they made a mistake about that mushroom, but they were trying, and they had not taken on any specific obligations to you. The legislature would be able to say when you have your mushroom advice shack, that’s a personal relationship just like lawyer client. They engage in speech all the time, but that might be something where we add, the legislature adds specific obligations there.

I would think that if someone sets up the mushroom app that buys a lot of ChatGPT tokens and just sort of feeds the question, and then gives you the answer, I think it would be roughly similar. It’d be a sense of like, are they trying to provide this general communication to the public? Or have they undertaken a specific obligation towards you where there are heightened expectations of accuracy?

And so I think in some sense, yeah, we would look through the machine to figure out like, “Okay, is the owner or operator that machine liable to you?” Obviously we can’t punish the machine, but is the owner or operator liable? And why? What is their connection to you?

Professor Jud Campbell:
Yeah. So I have three quick thoughts. So one is a kind of simple answer would be on my framework, their natural rights, those are rights of persons, and therefore they don’t belong to machines. Second answer would be that from the standpoint of founding era customary law, we don’t have a legally determinate answer to that question. So to the extent you can make an argument that these sorts of things implicate the speech right, that would be subject to the determination of the people themselves through their representatives, which is to say it remains an open question, and it’s not one that judges should be stepping in to try to answer.

The last thing I’ll say though is, even if we don’t say any particular person has rights in this situation, general principles of social contract theory would at least recognize limitations on the government’s ability to do things that don’t advance the common good. So the founders would at least recognize that we’re the government to pass a law saying, “Any AI bot that seems to be liberal needs to get shut down, and any AI bot that is with the conservatives can stay up.” That may not violate any particular person’s rights, query the points that Steve is asking about, but it would clearly contravene the basic point of having a public good limitation at the founding, which is not to have self-interested partisan legislation, but instead to have legislation that’s aiming to promote the good of the whole. And so I think that makes it a little tricky to just say, “Well, they’re not humans, therefore they don’t have any rights.” The founders would at least recognize, “Well, in regulating any activity, there needs to be some public good that’s advanced.”

Joel Alicea:
Do you have any thoughts on this? Okay. Other questions? Yeah, in the back there.

Audience Person 2:
My name’s Brian Boyle. First of all, thank you. This was amazing. Really interesting discussion.

So I think maybe all four of you to different degrees are open to a very different role for legislatures in these areas than maybe, if you grew up in the era of the war and court where you think the judges are deciding everything, it might sound a little surprising. So I guess my question, it picks off of an aspect of Judge Campbell’s scholarship around the educative function of declaring rights. So, if freedom of speech was maybe put into the Constitution to actually remind the people and their representatives of how important it is, I’m wondering if you could say a little bit about your thoughts on making legislatures the center of the debate around how to best protect rights, and making judges much less of a primary mover here. So, it’s a question for everybody.

Professor Sachs:
I mean, so I would say that putting it… There were plenty of governments at the founding that were willing to act on rights claims without text. So, standard example of this is state the none in Georgia that basically found a right to bear arms, not withstanding the absence of any textual provision in Georgia’s constitution to that effect. But looking at the Second Amendment, not rejecting Barry v. Baltimore, not saying that the Second Amendment applied of its own force in the states, but just saying, “Look, this is really good evidence that this is among the fundamental rights of American citizens, and so that they put it in the Second Amendment. And so therefore we should understand the delegation of legislative power to the Georgia legislature as implicitly excluding a power to do that.” If they wanted to confer a power to do that, they would have told us.

And you can even think of things like the rule that no legislature can bind to future legislature, kind of like that. Most constitutions don’t say that, but everybody knows it. And if they were going to let them do it, they would have told us. And so they serve as this background.

Professor Sachs:

But having the words in the Constitution really do help, because they avoid disagreement about that fact.

Professor Sachs:
And they also, I think Madison put it emboldened the judges. They make the judges feel a little bit easier when they do have to say to the legislature, “We just don’t believe you.” It’s easier for them to do that, when it’s like, we know that speech is really important, that this is an area of fundamental rights. We have it in there and so we are more capable of intervening than we would be if we were doing it purely under, let’s say, the Ninth Amendment, or purely under claims about implicitly reserved legislative powers.

So it has a function, both a political function and a judicial sort of legal function, but it doesn’t necessarily change the content of the right being secured. And of course, the 14th Amendment has a totally different function because it makes things into federal questions that would not otherwise be federal questions and allows for Supreme Court review, as Judd and I have argued elsewhere.

Professor Jud Campbell:
Yeah. Yeah. I mean, I certainly agree with that, but I do want to add two things. So one is, when Madison introduces the Bill of Rights, almost all of the impetus of the first part of the speech, which is explaining why do we need this, is on the need to educate citizens about what their rights are, and to reaffirm for legislatures the existence of those rights. And the point about the judges is peripheral. It’s added in two paragraphs at the end. So it’s there. It’s an important facet of founding our rights discourse, but it’s secondary to the more important point, which is about maintaining popular control over delineating where it is that the boundaries of our rights start and stop.

And then you can see that again in Federalist 51. So Federalist 51, written by Madison, is all about constitutional enforcement. How are we going to make this thing work from a practical standpoint when it comes to making sure that we maintain fidelity to our constitution? And he says lots of different things about how to ensure that rights are respected, talks about separation of powers, talks about federalism. What does he not talk about? He doesn’t ever mention judicial review. That’s not to say it’s not there. It is a piece of founding our rights discourse, but we really do lose a lot from a founding error perspective. If we limit our understanding of how rights are enforced to judicial review rather than thinking about it in this kind of broader, more representative manner.

Joel Alicea:
Professor Proctor, anything?

Professor Haley Proctor:
Yeah, just a small addition on that, because I agree one of the responses to the varied forms of argument about why the Bill of Rights would have been unnecessary that Madison offers is, well, it does, it provides a focal point for the people to enforce these rights through the political branches, but he also acknowledges that that sort of political security exists, that people made political arguments in parliament and says, “Those aren’t adequate. We need more than that.” And so that is a part of his speech where he’s saying, “Maybe we’re doing something more than just codifying the preexisting common law.”

Joel Alicea:
So, in our second panel, we’re going to focus on modern campaign finance doctrine and the originalism question in a more granular forum. We’ll come back in 15 minutes for that. But in the meantime, please join me in thanking our panelists.

15 MINUTE BREAK

Joel Alicea:
Okay. Let’s get started with panel two here at First Amendment Originalism Conference co-sponsored by AEI, the Center for the Constitution of the Catholic Intellectual Tradition at Catholic University, which I direct, and the MacArthur Foundation. If you’re just joining us, you missed panel one, which was on the original meeting of the free speech clause, I recommend going back and watching that where I give a little bit more of an introduction to the conference itself. I’m Joel Alicea. I’m a non-resident fellow here at AEI and a professor at Catholic University. I’m really honored to be joined with such a distinguished panel as a group of panelists for this panel on originalism and campaign finance doctrine.

And it’s a timely panel for the reasons I discussed in my introduction, which is the 50th anniversary of Buckley v. Vallejo, a foundational campaign finance case. That 50th anniversary is tomorrow. And the Supreme Court is hearing an important campaign finance case, this term, National Republican Senatorial Committee v. The Federal Election Commission. They already heard that case and we expect a decision sometime this spring or summer.

So, I’m going to briefly introduce our three panelists in the order in which they will speak, which is the order that you see to my right. They’ll have 10 to 15 minutes to give their opening remarks. We’ll do a moderated discussion after that, I will moderate that, and then we’ll open it up to Q&A at the end. I’ll give you the ground rules for the Q&A when we get to that. I’m going to give just a brief intro for each of our panelists because they are so distinguished. They have extensive resumes and I’m not going to get into all of that.

To my immediate right, Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. His scholarship focuses on constitutional law, law and technology, and institutional corruption. He clerked for Justice Anton Scalia on the Supreme Court and Judge Richard Posner on the Seventh Circuit. Professor Lessig graduated from Yale Law School, earned a master’s degree in philosophy from Cambridge University, and received his undergraduate degree from the University of Pennsylvania. And I really should have said at the beginning of the conference, I’ll say, I’ll cure this now, that…

They should have said at the beginning of the conference, I’ll cure this now, that this conference was actually Professor Lessig’s idea. He reached out to me about doing a conference like this and has been instrumental in helping organize it. So I’m very grateful to Professor Lessig for everything he did to bring this conference about. In addition to pulling double duty by also being a panelist and having to prepare for this, I didn’t have to do that much preparation. So I really appreciate that Professor Lessig.

Professor Bradley Smith is the Josiah H. Blackmore II and Shirley M. Nault Professor of Law Emeritus at Capital University Law School. His scholarship focuses on campaign finance law and free speech. Quite relevantly for this panel, he’s the former chairman of the Federal Election Commission. He graduated from Harvard Law School and Kalamazoo College.

Michael Morley is the Sheila M. McDevitt Professor of Law and Faculty Director of the Election Law Center at Florida State University. His scholarship focuses on election law, constitutional law, and federal courts. He clerked for Judge Gerald Tjoflat on the 11th circuit and he graduated from Yale Law School and Princeton University. He also had by far the most arduous journey to join us today of all of our panelists. It was like a Planes, Trains, and Automobiles situation for him to get here. So we’re very grateful to Professor Morley for making it for this panel in light of our weather difficulties.

And we’ll start off with Professor Lessig.

Lawrence Lessig:
Great. Thank you. And thank you so much for everything that’s been done to organize this extraordinary event. So I’m going to present a paper titled Stating the Obvious. It goes like this.

On the Jubilee Eve today of Buckley, at least this much is certain. Buckley has an originalism problem. We’re alive in an age when the court is increasingly extending its originalist methodology to doctrines of constitutional law that it has inherited from earlier courts. That discipline has not yet been applied consistently to the free speech clauses, either in general or campaign finance jurisprudence in particular. In the few moments that I have the privilege of your attention here, I want to map out precisely how significant this originalism problem is for campaign finance jurisprudence, and to suggest two principled responses for any originalist keen to apply originalism consistently in this domain.

We can glimpse the challenge by noting a campaign that Justice Thomas has launched to remake the doctrine announced by the court in New York Times versus Sullivan.

In that case, launched at the height of the Warren Court’s big idea jurisprudence, the court created an important immunity for journalists and newspapers threatened with defamation lawsuits for inaccuracies in their reporting. Justice Thomas has challenged the court’s authority to create such an immunity.

Sullivan, he writes, is a “policy driven decision masquerading as constitutional law.”

Rather than follow its policy, Thomas would have the court “embrace the original meaning of the First Amendment.” Drawing on the works of Judge Campbell in particular, Thomas tells us that the First Amendment originally did not empower courts to second guess the legislature as it passed laws it believed advanced the public’s interest. Even if those laws plainly affected what we today would consider rights of free speech.

The only question the legislature was to ask was whether the law advanced the public interest. That question was originally at least to be answered by the legislature alone.

“There is no evidence from the founding,” Thomas writes, “indicating that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.”

There can be no blinking the fact that applying this standard consistently would affect the overruling of Buckley versus Vallejo. I’ll confess, when I first read Justice Thomas’s characterization of Sullivan as a policy-driven decision masquerading as constitutional law, I think I literally blurted out in the library, “Justice, have you ever read Buckley versus Vallejo?” While the Buckley Court adverts to the framing purpose in enacting the First Amendment and spend some time working through the evolution of the appointments’ clause, nowhere in its 230 pages as it appears in the US reports, does the court give us anything like an exegesis of the original meaning of the First Amendment in the context of the late 19th century American jurisprudence.

And if one did follow the methodology Justice Thomas has outlined, following the insights of the many scholars, including Judd and Jonathan Gienapp in particular, as they have evinced, one would conclude that while the First Amendment certainly directed the Congress not to abridge the freedom of a speech, it was not for the court to decide whether the laws Congress might have passed to advance the public interest indeed do advance the public interest.

Speech was a retained natural right. Retained natural rights were not counter majoritarian constraints. On the legislature, they were retained through republicanism, meaning they remained subject to regulation by the people’s representatives. That methodology would, in other words, mean Buckley is no longer law.

This is the First Amendment problem that originalism creates. However, directly or easily, the overruling of Buckley follows from the method of analysis that Justice Thomas has sketched. It is clear that that method produces a radical shift in the scope of First Amendment protections. While some might celebrate that shift in some contexts, I would celebrate it in the campaign finance context, the commercial speech context, others might celebrate that shift in other context, New York Times versus Sullivan. There is no doubt that it would constitute a radical shift, and that radicalism may be reason enough for a court to ignore originalism here.

But I suggest there’s actually a narrower way to apply at least the democratic principles of originalism, at least in the context of campaign finance jurisprudence.

If to follow Attorney General Meese, we seek to avoid a constitutional practice where the framers supply the words, but the justices supply the meaning, we could follow a method of originalism that minimizes the justice’s subjective power to craft doctrine in a way that might advance their own personal political preferences. But differently, we could advance a doctrine that binds them to a standard that they themselves cannot set, namely as originalists believe, a historical standard.

So for example, Buckley grounded the power of Congress to regulate political speech in a “sufficiently important” or “weighty interest” to avoid corruption or the appearance of corruption. Later cases have narrowed that conception of corruption to quid pro quo corruption alone. But of course, again, in the 230 pages of Buckley, nowhere does the Court suggest why quid pro quo would be the exclusive type of corruption that Congress is free to regulate to avoid.

Certainly that conception of corruption is a far narrower conception than the one scholars have shown us the framers were obsessed to police. Thus, rather than limiting the scope of Congress’s power to quid pro quo corruption alone, a method that sought to ensure that it was not the judges picking the values that the Constitution would protect, but instead some external constraints could tie the test to an understanding of corruption prevalent at the time this higher law was enacted. The court could, in other words, embrace a conception of corruption that the framers themselves would have held to be most prominent.

I have for many years attempted to map that complimenting conception. At the time the court decided McCutcheon, I published a work that had cataloged every surviving use of the word corruption around the time of the framing. Those uses were coded to identify the kind of corruption that the framers were describing.

That analysis demonstrated that the framers were plainly focused primarily not on individual quid pro quo corruption, but the corruption of institutions. So when the framers spoke of the corruption of Parliament, for example, they were not referencing the practice of members of Parliament to accept bribes for their votes, something I’m sure certainly happened. They were instead referencing the rotten boroughs and the Crown’s ability to effectively select members of Parliament from those boroughs. That power corrupted Parliament because it conflicted with the institutional design of a Parliament independent of the Crown. That institutional corruption was their focus, not exclusively, but primarily.

An originalist could use this complimenting conception of corruption to craft a vision of Buckley that was more inclusive in its approval of regulation, targeting not just quid pro quo corruption, but corruption that undermined the proper dependence of republican institutions. And from this perspective, one clearly improper dependence could be framed in Madisonian terms.

Madison told us that the house at least would be “dependent on the people alone.” And in Federalist 57, he directed that by the people he meant, “Not the rich, more than the poor.” But a system of campaign finance that increasingly depends upon contributions and the tens of millions of dollars from an ever shrinking number of billionaires is plainly an institutional corruption of that design. Now, this conception too might claim originalist credentials, though it ignores the original limitation on judicial power so central to Justice Thomas’s explication of the tie in the context of Sullivan.

But I want to end my brief comments today by underlining what both conceptions emphasize, and by contrast, what they reveal about modern originalism.

Lawrence Lessig:

Though many seem to treat originalism as if it were just an interpretive theory, I have always understood originalism primarily as an expression of democratic or constitutional theory.

Lawrence Lessig:
The grounding motivation for the conservative legal movement out of which modern originalism was born was a democratic challenge to judicial supremacy. It was a bakalian demand that when judges claim the authority to displace the acts of a democratic legislature, they identify clearly the source of that authority in higher law. And the higher law from which they can draw that authority would be the constitution as enacted by we, the people, whether just the text, as most originalists would mean, or the text and its background presumptions as historians like Jonathan Gienapp would frame it.

Originalism on this count is an interpretive theory to understand what we, the people did at some particular moment in our constitution’s history, that could be 1791 or 1868 or 1920. Regardless, the objective of this originalism should be to help us understand what we, the people plausibly meant by the words we used at the time we used them.

That discipline, of course, would radically shrink the footprint of the judiciary over a wide range of governmental power. And of course, we can debate whether from a policy perspective, we like that consequence of that shrinkage or not. But I suggest from the perspective of principle that the originalist would insist that upon that shrinking, in order to be consistent with the Democratic theory that was the founding motivation for this whole enterprise, I should think that if a court can’t point to a plausible moment when we, the people ratified the conception of law that they are now enforcing against the acts of a Democratic legislature, or the people through an initiative, then that court is acting ultra vires.

Lawrence Lessig:

It is thus perhaps too obvious to remark that the elaborate jurisprudence of campaign finance law birthed 50 years ago tomorrow and raised across a half century of elaboration has any real connection to anything we, the people, ever said.

Lawrence Lessig:
The idea that judges would be policing the intricacies of legislation, addressing the legislature’s conception of corruption from this originalist perspective is, I suggest, just crazy. Everyone here knows of the extensive regulation of the time of the founding of activities that today we would consider core First Amendment activities: lobbying contracts not enforceable, lobbying itself prescribed by certain state constitutions, the act of treating considered illegal. And all of this, of course, was against a background which gave to the legislature a broad swath of authority to interpret the public interest as they thought proper.

One such interpretation were the Aliens and Sedition Acts, which modern law treats as some kind of frolic and detour, but which, of course, was no frolic for the Democratic Republicans that felt its force. Instead, I suggest it evinced a people not yet settled on whether their representatives could be checked in their judgment of the public interest, and if they could be checked, it evinced a public not yet settled on who could affect that check.

Jefferson and Madison thought Congress could be checked by state legislatures through resolutions. I don’t know of any prominent faction that pushed the idea that it would be the Supreme Court that would be that check, at least directly. We might like the Constitution that results from this discipline, or we might not. But my point in this intervention is not to proselytize originalism. My point is much narrower. It is to identify the inherent inconsistency in the current jurisprudence of the court.

Lawrence Lessig:

And because I believe that the integrity of the institution of the Supreme Court is essential to our republic, it is my purpose as well to identify a particular character of that inconsistency that I would hope, I would trust the court takes notice of.

Lawrence Lessig:
That character is this. If a court is going to be radically remaking the scope of federal constitutional law in the name of a doctrine called originalism, it should at least ensure that its activism is balanced, politically balanced.

If it’s going to remake the law to advance what is perceived to be conservative ends, the Second Amendment or the remaking of the scope of the libertarian constraint on regulation expressed through the concept of privacy, that was Dobbs, it should be open to remaking the law and context certainly be perceived to advance liberal ends. My conservative friends will insist there’s nothing conservative in the idea of allowing unlimited influence by a tiny few over our representative process or anything conservative and allowing the corrupting dependents of our elected representatives upon those very few. I welcome the correction and the suggestion as evinced by the 75% of Maine voters who supported an anti-Super PAC initiative now being litigated in the First Circuit, suggesting this might be one issue that unites all Americans.

But in defense of my suggestion, I offer only the common wisdom that consistently suggests that this Supreme Court would never do anything to challenge the power of money. Whether that’s conservatism or not, the point I defend here is that it is not a principled expression of originalism, and the justices who aim to demonstrate a practice of principled originalism need to track that inconsistency if they are to sustain the impression, which I think they are rightly seeking to sustain that their jurisprudence is a jurisprudence of principle.

Thank you very much.

Joel Alicea:
Professor Smith?

Bradley Smith:
Well, thank you Joel and the Senator and AEI for inviting me. Thank you, Michael, for your heroic efforts to get here. And I want to thank Larry, in particular, Larry and I, butt heads not infrequently, including in the litigation he referenced in Maine where we’re on the other side, but Larry is always a gentleman, always plays by Marcus of Queensbury rules, and understands that it’s not personal. We’re arguing about important principles in good faith, and it’s always a pleasure to share the podium with Larry.

There’s no doubt about it that Buckley is not an originalist decision. It’s made at the high point really of non-originalist interpretation of the Constitution. It’s tremendously long. It was referenced in the first panel. It’s over 200 pages. It’s got over 65,000 words, and there’s no mention of originalism, no mention of what was the originalist thought. Nothing. I mean, you can parse the decision, you can look for words like adoption, like when was the amendment adopted or adopted?

Just nothing there. You search it. It’s just totally void of much appeal to originalist principles. So the question then is I think, how should a modern originalist court look at something like Buckley?

Now, first you have the question of precedent, which is also a value that many conservatives and even many liberal justices bring to the issue. But let’s assume that a decision has been made that we can go against the precedent if the case is warranted on originalist grounds. Applying the Bruen framework, and I have to note here that Justice Thomas… I’m on the deregulatory side here. I don’t think Congress can regulate this. I don’t think the states can regulate most of it. Justice Thomas agreed with me. That has been his opinion consistently in almost… What is it now? Thirty-five years that he’s been on the court. He has been on the deregulatory side in every single campaign finance case.

So when we appeal to Justice Thomas, we’re either assuming he is a hypocrite, could be, or he simply does not understand after 35 years, the implications of his own jurisprudence. I think both of those are weak presumptions on which to begin the assault on originalism and support for the result in Buckley vs. Vallejo. Now, applying the Bruen framework that Thomas delivers, we would start by noting that the First Amendment plainly covers political speech, and hence, presumptively protects the conduct at issue with its broad pronouncement: Congress shall make no law.

Of course, we know that that’s not entirely true because when the 14th Amendment is adopted, the First Amendment is clearly applied to the states. We don’t suddenly say, “Oh, the states can no longer regulate, say, defamation or perhaps fighting words, or incitement to riot, or false commercial advertising.” So perhaps no law doesn’t really mean no law.

Bradley Smith:

I do suggest that it means that we ought to approach this with at least a presumption that regulation of political speech is not permitted under the Constitution.

Bradley Smith:
And under Bruen, we would do that in part as a major part of our inquiry by looking at what kind of laws were in effect at the time that the First Amendment was passed. What were people thinking? How did they understand the First Amendment at that time? And if we look at the founding era, there is simply no effort, no record of any type of limit to enforce just general limits on spending in campaigns or general limits on contributions to groups of people that were engaging in campaigns.

James Madison, so influential in the creation and passage of the Constitution, later the draftsman of the First Amendment, lost his first campaign for office in 1777 because he thought it was inappropriate to spend money in a campaign.

He never made that mistake again. For the rest of his career, he was quite happy to spend quite a bit of money and his experience indicates, demonstrates the surprisingly expensive nature of politics even during the colonial era. Note that Madison’s first run was, I guess after the Declaration of Independence, but before that Independence was really effectuated, it was in 1777. And it indicates that people, candidates were expected to incur considerable financial costs to show that they were serious about the position, and that they had the funds and the inclination to take the job seriously.

Now, shortly later in the Constitution, as the Constitution comes up, Madison and his colleague Hamilton and their publisher, Archibald McLean, spent enormous sums in the terms of the day from their personal fortunes to distribute copies of The Federalist.

To quote historian Anthony Gaughan, “From the very beginning of American politics, Madison, Hamilton and the Constitution’s other framers understood that money was essential to disseminating political speech. Indeed, without it, the Constitution itself might never have been ratified in the first place.” He also notes that the parties did not have a level playing field, and nobody tried to claim that they did. The federalists really had pretty much all of the advantages, a clear advantage in the financial battle, which didn’t seem to perturb Madison and Hamilton one bit. Their conscious wasn’t bothered by the fact that they had enormous resource advantages over their anti-federalist opponents.

Now, later, as the schism developed between Hamilton and Madison that ultimately led to our two-party system, both sides spent lavishly on elections, which in that day mainly meant subsidizing partisan newspapers and providing for pamphlets and tracks, and so on to be circulated through the public. Lacking the business support that the federalists had, the Democratic Republican Party of Madison and Jefferson turned to wealthy individuals such as James Swanwick to essentially finance their campaign.

Swanwick, I mentioned because he financed almost their entire campaign in the whole state of Pennsylvania by himself. He was the Elon Musk of campaigning in his day, one might say. And they praised those who responded.

In 1799, as he prepared for a rematch with John Adams for the presidency, Jefferson wrote to a colleague, “Every man must lay his purse under contribution.” Meaning, “Put your money down, folks. We need it if we’re going to win this race.” And again, note that the Democratic Republican Party had these wealthy benefactors, but it was seriously outgunned in terms of social prestige, the levers of power, business control, and so on. And the truth is that very, very few ordinary Americans at that time had the wherewithal to contribute to political campaigns. Far fewer had disposable money for political campaigns than would have that today. We often say, “Well, not many people can afford to give, but it’s much easier for people to give today than it was then.” Many Americans were still essentially fighting for survival on the frontier, and so on.

Up until about 1790, candidates were expected to fund their own campaigns, but by 1800, big spending was underway as Madison and Jefferson’s Democratic Republican Party sought to dislodge the incumbent Federalist Party, and almost all of their funds came from a handful of people in extremely large contributions. Now, it’s true, as Larry mentions, that the Federalists sought to limit speech with the Sedition Acts of 1798, and one might say, “Well, that shows that there was some sense that Congress could limit this kind of speech.”

But note that the Sedition Acts were rebuked soundly in the election of 1800. The very passage of the Sedition Acts was one of the reasons that Jefferson won in 1800. So it may be true that the federalists already doomed to be a minority party desperately tried to hang on to power by regulating this political speech of their opponents or regulating political speech generally, but note two things.

First, it wasn’t even then a general limitation on your ability to put your money where your mouth is to support your political views. It was a limitation on sedition, on the content of the speech that was viewed to be perhaps within a common law exception to the concept of free speech, not just a generic, you can’t spend money. And note further, again, it was largely rebuked by the American public by within a decade of passage, the Alien and Sedition Acts were like bad, bad things that nobody wanted to talk about or pretend had ever occurred. Okay? So I think that the Alien and Sedition acts actually show how out of line with the common understanding of the First Amendment, the position that you can regulate political speech is.

Now, Professor Lessig attempts to get around this in what I consider to be sort of a curious way.

He goes to Buckley’s definition or Buckley’s statement that corruption might be a valid government interest to get around the First Amendment, at least in some circumstances. And then he suggests that we should take this modern term that the court says, “These are the circumstances where we think maybe we’re going to let the government regulate, and we’re going to label it corruption.” That’s our word. That’s our Buckley court word. It’s not a word that appears anywhere in the Constitution.

Professor Lessig then says, “Let’s take that 20th century word, transport it back to the 18th century, and see what people thought it meant then. Then let’s take it and bring it back up to the 20th century, and say, ‘Now it must mean not what you meant it to mean when you wrote it, but what someone else meant it to mean when they wrote it.’” It would be like if you had a law regulating sedans, and somebody said, “Well, in 1780, a sedan was a horse-drawn carriage.” Now, let’s bring that back up to the 20th century. This only regulates safety standards for horse-drawn carriages. Nobody would think that. We would understand that that’s not the way that it sort of works.

Corruption is merely Buckley’s way of describing what it considers to be a legitimate government interest, or we should say the prevention of corruption.

It is not a word that appears in the Constitution, and it did not purport to be interpreting a word used in the Constitution. It was rather interpreting what the court thought was a constitutional principle, and I think correctly, that the First Amendment did not allow general regulation of political speech, general efforts to limit the amount of political speech. And note that the court does this all the time.

For example, in Helvering vs. Davis and Stewart Machine Company vs. Davis, these are the laws that upheld the Social Security Act. The court didn’t say, “Well, what did Social Security, what did those words mean back in 1789?” Try to define them in those terms and then import them back up to the 1930s to decide whether or not you could have a Social Security Act. Rather, they said, “What are the principles of commerce, and so on, of the commerce clause and other provisions of the Constitution? Do they allow the US government to have this kind of social insurance?”

And you might think they got it right, you might think they got it wrong, but their reasoning wasn’t to try to take some word from the 20th century, take it back to the 18th century, and then transport it back up into the 20th century with some new meaning that Congress nor the courts meant when they wrote about it. Now, of course, the founders were concerned about corruption. There’s no doubt about that. And they did define it broadly. They included even the general promotion of private ends at the expense of the public good. They considered that corruption, and I think most people would today, at least abstractly. And the Constitution contains anti-corruption provisions. It has an Emoluments Clause. It has the power of impeachment. It has structural provisions that limit government and hence limit the power of people in government to use it for corrupt purposes, most notably perhaps the enumerated powers provisions, and the general welfare clause intended to limit spending to things for the general welfare as opposed for specific benefits to some people.

Many of those clauses, we have gutted, or they’ve largely been gutted by many of the same people who now turn and argue, “Well, now we have to limit political spending because we’ve taken away these other protections against corruption. We need to limit political spending.”

But again, at the Constitution, they did not use the term corruption in the Constitution, and there’s no indication that the framers or the public understood the First Amendment to allow restrictions on the amount of political speech. That is just not there. They were concerned about corruption, but there’s no free floating corruption principle in the Constitution that overrides the plain language of the First Amendment, and there was certainly no such principle recognized at the time of adoption.

Indeed, the term corruption was specifically deleted from an early draft of the impeachment clause because they thought this is too broad a term. We leave that in there. It can justify almost any kind of basis for impeachment. They didn’t like the idea that corruption would be a constitutional term that would give Congress this broad power to regulate anything it thought was corrupt. Quite the opposite. They wanted to avoid giving Congress that kind of broad power to regulate anything that it thought was corrupt.

So, Professor Lessig is essentially asking us to embrace corruption as the key concept espoused by the framers of the Constitution and the subsequent Bill of Rights, but remember that when the framers had a chance, in fact, they had many chances to include this in the bill in the Constitution, they did not do so. And in fact, they specifically took it out. Buckley later uses the term corruption in a narrow fashion to describe, and perhaps they’re incorrect on this, that the First Amendment cannot be justification to allow some regulation, but generally the First Amendment cannot be justification for ignoring the plain language of the amendment.

Bradley Smith:
… Might be justification for ignoring the plain language of the amendment. Now, as a final point here, I would note that one of those anti-corruption measures that was there in the original Constitution was the First Amendment and the ability to spend private resources to publish exposes of the wrongdoing of government and to publish reasons why government should be voted out of office or perhaps even impeached or something along those lines. In other words, the First Amendment itself is an anti-corruption measure and if you eviscerate that by simply limiting how much people can spend, you’ve eviscerated an anti-corruption measure using the broad definition that they would’ve had in the 1790s and in the 1780s. So I think that it goes exactly backwards to suggest that we should do otherwise.

And remember, by the way, the Federal Election Campaign Act that Buckley overturned portions of, limited political spending by groups such as Planned Parenthood, the NAACP, the ACLU, the NRA, Right to Life, the Chamber of Commerce, whatever it is, to $1,000 relative to, that’s a quote, a candidate. Whatever relative to a candidate means. I think it’s anything mentioning a candidate, talking about a candidate’s issues. It would’ve essentially squelched virtually all citizen participation in the act of political campaigns.

Okay. So I want to go on … Well, I note that Professor Lessig then suggests that the judiciary has too much power. I’ll just say that this obviously seems to run contrary to Marbury versus Madison, to our understanding of judicial power over a lengthy period of time. And I think it is simply not true to say that this is totally untethered to anything in the Constitution because there is something in the Constitution in which this is tethered, something that the people adopted. It says, “Congress shall make no law bridging freedom of speech.” That seems about as tethered as you can get to the idea of what they thought should go on.

Now I want to close, I’m going to run a touch long, but I’m going to beg some indulgement and I’ll be real quiet during the conversation after to just talk a little bit more about the question of whether Congress has the power to regulate campaigns at all.

Bradley Smith:

I would suggest to you that Congress does not have that power even before we get to the First Amendment. We have a government of enumerated powers. Where does it get the power to regulate campaign speech?

Bradley Smith:
Well, one possibility might be commerce, another might be what? General police power somehow given to the federal government.

I think clearly either of those apply broadly to just speaking about politics would eviscerate the First Amendment. It would just be gone because almost everything you could say okay, we can regulate all your political speech if that power is there. In fact, the source seems to be the times, place and manner clause, which gives government the power of, the federal government, to regulate the time, place, and manner of elections for members of the House. All right? It does not, by the way, note, there’s no manners clause in the election of the president, for example. Only time and place.

And I suggest to you that therefore, if we’re going to regulate, well, regulating campaign speech isn’t regulating the time of the election. It’s not regulating the place of the election, so it would have to be regulating the manner of the election. But if we look back to the meaning of that term at the time of the adoption, manner did not include speaking about candidates or speaking about elections. In fact, it very clearly was limited to the mechanics of voting. That is maintenance of voter list, setting the polling hours, determining the polling places, counting the ballots. It did not include just talking about candidates.

The idea that there’s a cabined off period that we can say is a campaign and that somehow we can regulate that as just a license to regulate all political speech. There is no kind of cabined off period like that. And that period is not an election. It is not an election any more than sex is a child. I mean, sex is necessary to have a child, right? But they are not the same thing. They are different things. One may be the predicate for the other, but they are not the same. And therefore, I suggest that Congress lacks any power to regulate in this area.

And we should recognize the effect on precedent that would happen if in fact we were to adopt, if we were to these constraints that Buckley at least placed on this, it would jeopardize dozens of precedents that many of us would recognize, I think, as originalist positions. It would jeopardize Tornillo versus Miami Herald, which struck down a law that purported to give candidates for office opportunity to respond to charges made by a newspaper in that newspaper itself.

It would eviscerate Mills versus Alabama, which limited the ability of newspapers to write editorials endorsing candidates close to an election. It would do away with New York Times versus Sullivan. Let’s assume that New York Times versus Sullivan is wrong along the lines that Justice Thomas presents, that there should be no special sort of tougher standard for a defamation claim by a public official. Okay, that’s fine. Who cares? If you’re the public officials in New York Times versus Sullivan, you just pass a law saying you can’t pool your money in order to run ads about concerning public affairs and spending more than $1,000, which people in fact did. Okay? That’s what that case was ultimately about.

So in the end, the consequences would be far-reaching contrary to almost everything that exists in our Constitution, and I think totally unsupported by any originalist standard of Constitutional interpretation. The Constitution is full of values and anti-corruption may be one of those, but those values are represented and fostered and protected by specific provisions of the Constitution, such as the Emoluments Clause, such as the First Amendment. And when we get away from that, we are not engaging in originalism, but we’re making it up as we go along. Thank you.

Joel Alicea:
Pressor Morley.

Professor Morley:
Thank you very much. It’s a privilege to be here. I’d like to thank AEI for inviting me, and it’s a particular pleasure to be on a panel with such distinguished friends and colleagues. I’ll start by using campaign finance law as a case study in the practical application of originalist approaches to constitutional interpretation, and then turn more broadly to the court’s decidedly non-originalist opinion in Buckley v. Valeo, or we might perhaps instead call it an A originalist opinion, not that it’s necessarily irreconcilable with originalism, but simply the court did not make any effort to do so.

So with originalism, in some respects, it’s challenging to talk about what originalism can tell us about campaign finance law, because originalism is not a particular theory of interpretation, but rather a family of theories. Depending on what particular type of originalist you wish to be, you might focus on the framer’s original intent, what Fred the Framer’s intended particular constitutional provisions to mean. This approach requires us to privilege the writings and the understandings of delegates to the Constitutional Convention or perhaps the ratifiers at the various state conventions.

Or instead, you might look for the original expected application of particular provisions where we would ask how the framers themselves, whether that again, be delegates to the convention, delegates to ratifying conventions, how they themselves would have resolved particular constitutional questions, and then adopt those answers as baked into the Constitution. Or we might take later variations of originalism and look for original understanding, original public meaning. What would a reasonable member of the American public in 1789 or 1791 have understood particular words to mean? This type of approach often allows us to take definitions and understandings from the founding era, but then apply them ourselves to a particular question in order to resolve a constitutional issue.

Or if you’re really in the academic weeds, you might be an original methods originalist where you would ask how a judge or a lawyer in the founding era would have went about resolving a particular constitutional issue, which may very well involve considerations beyond the text of the Constitution or what it happens to me at a particular point in time. And so right off the bat, different approaches to originalism can lead to very different answers about what the Constitution and the First Amendment in particular says about campaign finance law and different variations of originalism can likewise lead to different expectations about how far originalism can take you in answering a particular constitutional question.

But regardless of which of these theories you pick, most of them are going to run into some of the same types of challenges, particularly in the campaign finance context. I would suggest that originalism is often most helpful if you want to know the meaning of particular terms in the Constitution. Originalism is going to be your best bet for determining what a letter of market reprisal is and whether your HOA has sent you one, what a bill of attainer is, what an exposed facto law is.

But I would suggest that’s not the type of challenge we face in the campaign finance context. There generally isn’t a dispute over what the term speech means, even if the modern era offers more technological alternatives that weren’t available for engaging in political speech than the framers enjoyed. Now, of course, critics of Buckley, one of the bumper sticker slogans attacking Buckley is money isn’t speech. But of course, the Buckley Court never claimed that money was literally speech. Rather, the court said in our society, the fact that people have to pay money in order to receive speech by buying books or newspapers, or that people have to pay money in order to engage in certain forms of speech, such as by purchasing advertisements or flyers or mailers, doesn’t reduce or eliminate the constitutional protection to which that underlying political speech is entitled.

So whichever side of that particular debate you find yourself on, the fact remains the two sides aren’t actually arguing over whether books, newspapers, advertisements, mailers are speech, or for that matter, even whether the money involved in purchasing them are speech, but rather what constitutional implications, if any, flow from the fact that speech isn’t free in the financial sense at least. So we’re left deciding how the First Amendment should apply in the context of campaign finance law. And here, I would suggest that originalism, at least most variations of originalism, can become somewhat indeterminate.

Brad shared one anecdote. I have an even earlier one. James Madison was not the only loser.

Professor Morley:

George Washington lost his first election for the Virginia House of Burgesses because he didn’t buy voters liquor and he didn’t spend money on entertaining the voters at the polling place. What one source calls, “Swilling the planters with bumbo.” That was a mistake he was sure to rectify in the election of 1758, which he went on to win.

Professor Morley:
The point being campaign practice elections were conducted very differently from what we expect today. Campaign practices were different from what we expect today. With regard to presidential elections, overtly campaigning for office was not something that most credible candidates to do. As Aaron Burr would learn in 1800, the very last person who most founding era voters would trust with executive power was someone who went around telling everyone how much they wanted it.

In terms of the First Amendment, on the one hand, several states insisted upon it as a fundamental freedom as a condition for ratifying the Constitution. Many newspapers were outright mouthpieces for either the Federalist Party or later on the Democratic Republican Party, and their editors had very close relationships to prominent politicians and were more than willing to allow their newspapers to be used as a vehicle for publicizing these office holders and these candidates’ messages.

So as originalists, what lesson do we take from that? Does that tell us that coordination between candidates and private parties, private entities concerning political speech is constitutionally protected? Or instead that the First Amendment demands a media exception? Or that this wasn’t a constitutional issue at all at the time because no one was trying to prohibit it. That this was, if anything, simply a policy question that doesn’t allow us to draw any particular constitutional conclusions, which is all to say it can be very hard, even when you have originalist evidence, it can be hard to draw the correct originalist inferences.

And on the other hand, of course, some scholars contend that the original understanding of the First Amendment was that it was primarily a constraint on prior restraints of speech and did not prohibit after the fact punishments or other remedies for prohibited speech. One reason why New York Times versus Sullivan is such an important precedent is precisely because the court didn’t adopt that interpretation of the First Amendment and it wasn’t generally accepted until the 20th century.

As Brad reminded us before, the Federalist Congress under President John Adams passed the Sedition Acts and a dozen or two of his political opponents were prosecuted and imprisoned for uttering false, scandalous and malicious statements against the government with intent to defame. It appeared to be hard to claim strong originalist First Amendment protections against that backdrop, but of course the acts ended in 1801, President Jefferson pardoned everyone who was convicted and their fines were refunded precisely because under the Democratic Republican’s view, these laws were blatantly unconstitutional and the Sullivan Court in the 20th century would go on to contend that the court of history, whatever its subject matter jurisdiction may be, had held them unconstitutional as well.

Nevertheless, they reflected the considered constitutional judgment of both the president and the majority of both chambers in Congress in a year closer to the founding than the Jefferson administration and more than a century closer to the founding than Sullivan itself. All of these challenges arise, I would suggest from a common cause. The framers were a they, right? The framers were comprised of different people, members of different parties who didn’t necessarily share the same view, even on some very important, even on some very fundamental questions. And in fact, one of the reasons they were often able to reach a compromise on constitutional provisions was precisely because they avoided resolving some of the hard problems, right? The Madisonian compromise is a good example of that. Do we have to have lower federal courts? One side says yes, one side says no. The Constitution says maybe. Let Congress decide.

Professor Morley:

Vague language, indeterminate language, under specified language were some of the tools that allowed the Constitution to be adopted.

Professor Morley:
And so in attempting to go back from a 20th century perch and insist that there is one consensus originalist position for some of these issues, raises challenging difficulties, particularly for modern questions for which most framers didn’t have or certainly didn’t express any thoughts. Adding on top of that, as Gordon Woods teaches, concepts of republicanism, concepts of what counted as corruption changed fundamentally from the time of the Declaration of Independence to the time of the Constitution and throughout the federal era and beyond.

Another important question, of course, is just because the framers did something, just because we can point to a precedent from the founding era, does that necessarily make it unconstitutional? You think Secretary of State Marco Rubio has a lot of jobs, Secretary of State John Marshall at the same time served as Chief Justice of the United States Supreme Court. So if John Roberts were to happen to retire, would it be constitutionally permissible to have Secretary Rubio added onto the court as well simply because it happened once?

And this is an issue that arises with regard to the Supreme Court’s interpretation even in the early 1790s saying that Congress got it wrong. Several justices of the Supreme Court rise sitting as circuit judges declared that one of the first laws that Congress passed with regard to pensions for revolutionary war veterans was unconstitutional because it undermined the finality of federal court rulings. And so here again, we have Congress, we have the president adopting one view of the Constitution, we have several Supreme Court justices adopting a different view of the Constitution. From an originalist perspective, who’s right? Of course, when this happened in the context of state sovereign immunity, the seminal tribe tells us the American public rose up to say the Supreme Court got it wrong and immediately amended the Constitution to adopt the 11th Amendment, which didn’t actually protect the full scope of state sovereign immunity that the modern court says the American public was demanding.

So where does this leave us? With originalism, I think it is a firm, normatively desirable starting point for constitutional analysis, but not necessarily a guaranteed ending point in every case. I think originalism can, for lack of a better phrase, run out. It can answer certain types of questions. In other cases, it can narrow down the range of potential answers, but when a general consensus from the founding era doesn’t objectively exist on a particular issue, it’s not always the right approach to squint harder at Ferrand or try to look for another letter from Madison. Originalism can sometimes be more of a mood for constitutional interpretation, to borrow a phrase from the literature, counseling caution, humility and deference. It’s in large part a warning against incorporating our personal, subjective, moral modern views into a 230-year-old document.

Looping back to Buckley, I generally sit right next to the dead armadillo in the middle of the road as thinking it’s actually got it right. I find Buckley’s distinction between election speech and issue advocacy, even as narrowed by McConnell v. FEC, which might not deserve a 50-year anniversary, persuasive. I find Buckley’s distinction between contributions and independent expenditures for Constitutional purposes generally persuasive. I do think contributions pose a greater risk of a corruption than expenditures. Expenditures involve paying to engage in pure political speech. The First Amendment is properly read as barring the government from deciding that someone engaged in too much speech. And especially today, I think we’re past the notion that the campaign finance system decisively advantages either political party. I think we have more than enough wealthy people on both sides of the political spectrum supporting their respective candidates, supporting their respective policies, that we’re not having voices shut out of the political system.

My main objection to Buckley is that the court declares as a legislative fact that independent expenditures are inherently less corrupting than contributions. In American Tradition Partnership versus Bullock, the court refused to even consider what Montana claimed was evidence that independent expenditures in the particular political context of that state actually did pose a risk of corruption, actually did lead to corruption in the constitutionally relevant sense. Which is why I would say the court’s holding that restrictions on independent expenditures trigger strict scrutiny should not rest on the potentially falsifiable legislative fact that there is no risk of corruption from expenditures. I think instead that the court can acknowledge that a risk exists, but instead hold, there are less restrictive alternatives for dealing with it under strict scrutiny than an outright ban or a limit. Contribution limits in contrast are permissible since they’re subject only to intermediate or exacting scrutiny pursuant to Buckley, and so the existence of less restrictive alternatives is not sufficient to invalidate them.

Finally, in response to the points that Professor Lessig made, yeah, completely accurate. Fighting corruption, concerns about corruption permeates the founding era debates, was one of the main driving forces underlying many of the provisions in the Constitution. I would like to throw out, for purposes of discussion, this isn’t something I’ve written about yet, so this is a tentative hypothesis. One of the other fundamental themes, one of the other concerns that permeates particularly the Constitutional Convention is ending what state legislatures were doing with regard to populist impulses to undermine property. Legislatures were responding to poor farmers. They were responding to debtors by not enforcing contracts, not allowing mortgages to be foreclosed, devaluing money, refusing to enforce debts. And so one of the reasons many of these issues were raised up to the national level was in order to prevent some of those extreme approaches to financial and economic issues.

Of course, many of the constitutional protections such as the Contracts Clause, limits on redistribution, limits on federal authority have been read out of the Constitution particularly over the course of the 20th century. And so one potential understanding of why independent expenditures are constitutionally protected could potentially be as a self-defense mechanism. That people who are potentially subject to being targeted in a democratic system at least have the opportunity to present their side of the issue to voters, to try to convince voters don’t vote for the self-declared socialist, don’t vote for people wanting to impose a retroactive wealth tax, and here’s why. So in the face of virtually universal adult citizen suffrage, having the opportunity when you are likely to be the target of these sorts of statutes to at least make your case to the general public at least may arguably be a way of achieving the constitutional values of ensuring the nation is able to exist over the long haul in a way the framers feared many of the states were not. Thank you very much.

Joel Alicea:
Thank you, Professor Morley. I wanted to give all three of you a chance to respond to anything that was said by your co-panelists. There was some direct engagement with each other’s remarks up there. So I want to make sure that you all have a chance, especially you, Professor Lessig, since you went first.

Lawrence Lessig:
Yeah, great. I’m really grateful for the essays and the comments. Let me start with Michael because I feel like I almost agree with everything you said. Although I guess I would frame the ultimate question to be what follows from the uncertainty. I feel like I want to express a kind of Therian originalism, which is, okay, if we’re not certain in the face of the originalism, then we should step back when there’s a democratic branch that’s acting in a way that is questionable from an originalist perspective. And so from that vantage point, all of these questions I think you nicely raise would still lead to the position that we would have more discretion to be regulating in the context than otherwise the court would give us.

Maybe surprisingly, I actually would more strongly defend the conclusion about independent expenditures than I think you were suggesting because I think that we’ve simplified the description of the protection for independent expenditures. The reason Buckley and then Citizens United protected independent expenditures is that they said they were, “There was not coordination.” And the coordination rules, whether they’re enforced effectively or not, are basically a regulation to say, so long as you’re not engaging in a certain way, then you’re allowed to speak in an unlimited way. And if it turns out that Elon Musk was coordinating with the president in an independent expenditure, then he’s subject to penalties for that coordination.

So I think that mechanism of regulation is the reason why it’s not just theoretically independent, it’s practically independent in a way that, at least if there’s an effective enforcement mechanism, distinguishes it from contributions. Because I don’t think there’s any similar parallel in the context of contributions. Brad, so we’ve been arguing since many of you were even cognizant of what was going on, and I have come to love the way in which our relationship has matured to the point where we’re not fighting physically anymore or filing lawsuits against each other. But I do want to make sure that one point’s clear because it feels like in your response, I hadn’t made myself clear.

So when I’m trying to understand the meaning of the word corruption, what I’m starting with is saying, let’s assume we’re going to embrace the Buckley framework. So start with what we both concede as a non-originalist opinion. And then the question is, how do you minimize the judicial discretion in the context of this non-originalist opinion? And if it’s going to frame everything around corruption, all that I’m saying is we ought to at least have a corruption that’s resonating with the kind of concern that is the concern across history, but especially at the framing. I think Michael said this in a way that I completely agree with. I think the framing is filled, not just with particular clauses in the Constitution, but with an obsession on the ways in which governments become corrupted. And to the extent that the rise and fall of the Roman Empire is published at exactly the period of this time, it’s the convincing like the cultural obsession with this concern that the institutions of governance would develop in a way that would lead to corruption.

So I don’t think we can minimize the significance. It’s not like saying we have an Apple Macintosh and what’s the equivalent in 1787, and then how do we bring that back? No, we’re both talking about exactly a similar concern, and I think they were more aggressive in trying to think about how to address it. I think the problem though, the challenge though, is teed up by the Bruen framework precisely. Because in the Bruen framework, I think in its most mature understanding, step one is to ask whether the plain meaning of the right, and of course what we’ve got to mean is the plain meaning they would have given to the right is affected. And then the second step is to look for parallel regulations.

There’s been lots of commentary about the sort of underdetermined character of that way of framing it, especially from the perspective that I’ve started with, which is this kind of Therian originalism because let’s start with the first one. I mean, as Steve commented, the fundamental distinction we’re arguing about in the litigation is the distinction between contributions and expenditures. Our case has nothing to do with expenditures. I’m totally fine conceding the Citizens United point about expenditures. The only question here is contributions to a committee that would make expenditures. And as I think Steve’s comment made, it’s not obvious that that’s exactly within the scope of what the First Amendment right would have been about.

Okay. So we have to get over that point and then we move to stage two and ask what’s the equivalent regulation? Well, what’s clear is they have a wide range of regulation at the time to address the challenge of keeping confidence in a government to make sure that its perception is not that there’s corruption inside of the government. Washington doesn’t treat, but there’s tons of regulations against treating. There’s all sorts of different ways in which the regulatory architecture shifts around at the period.

And the challenge with Bruen is to say, when we move ahead 230 years from that period and the context is radically different, can we point to the fact that they didn’t regulate in the way that we are today wanting to regulate and conclude therefore we are constitutionally prohibited from regulating in that way? Or should we step back from it and say, they had a bunch of regulations aiming to maintain confidence in the integrity of government and they had different contours to them. And are these regulations translations of those? Are they the equivalent of those today?

And again, I don’t think that’s an easy inquiry. It’s easier if you have a Therian perspective to it, but it’s not an easier inquiry if you’re trying to say precisely what the right kind of translation between the two is. And so yes, they didn’t limit contributions to independent committees in 1787, but the idea that they were not concerned to assure they could represent to the public that the right reasons were driving a decision as opposed to a corrupt reason, I don’t think is a fair characterization of where they were.

Joel Alicea:
Professor Smith.

Bradley Smith:
So real quick, if the Buckley court frames it as corruption. So he says, “Well, let’s tether that to some better meaning of corruption back at what were they thinking about corruption at the time?” The Buckley court was thinking of quid pro quo exchanges. They could have said quid pro quo exchanges. They chose a broader term, corruption. I just don’t think that there’s any reason. If you told them, “Well, what we’re going to do then is whatever term you use, we’re going to take it back to the 18th century,” then they wouldn’t have chosen corruption because that’s not what they meant. They meant a narrow category of quid pro quo was problematic.

And so you can start then, as Larry then kind of I think shifts to what were the values at the time. And we should consider that in considering whether you can now do new types of regulation. And I suggest, as I said in my talk, I think the answer to that is no. I think the Constitution embodies a great many values, all kinds of values, right? But it expresses how we are going to protect those through certain provisions.

For example, Justice Breyer has said in some of his opinions on campaign finance when he was on the court, he said, “Well, there’s First Amendment values on both sides, so we shouldn’t be too quick to say that Congress can’t limit these things.” And my response is always, “Well, yeah, we should be really quick to do that because the Constitution says, here’s how we’re going to implement those values. Congress can’t pass any laws in this area. We’re looking for similar things.” So we’re not saying under the Second Amendment they covered flintlocks in 1789, so it only applies to flintlocks now. The Constitution is updated in terms of the meaning of the concepts, the conceptual approaches, but those conceptual approaches don’t change in their fundamental nature. And at the time, the idea that you could just limit political speech was totally off the table.

Joel Alicea:
I have a few specific questions, but Professor Morley, anything that you want to add?

Professor Morley:
No. I agree. I agree with both of you, and I think that’s one of the challenges here. The Constitution embodies multiple values. The Constitution, and again, the purpose, the reasoning behind many of the provisions was anti-corruption. You’ll find plenty of evidence for that throughout the journals and the ratification debates. On the other hand, another purpose of the Constitution was democratic responsiveness. And you see this, and I’m going to skip ahead a decade if you’ll let me. But if you look at the debates over the 12th Amendment, and Ned Foley wrote a whole book on this about how it’s all about ensuring that government officials reflect the will of the majority, that the majority gets to have their will. It really wasn’t, in my view, as framed in expressly majoritarian terms, but more following the will of the people if you look at the founding era debates.

But the point being, you could just as easily say that a constitutional value is ensuring that elected representatives are doing what their constituents want or doing what the people who elected them want, rather than being particularly responsive to certain wealthy individuals that doesn’t necessarily reflect the will of the people, that have their own agendas, that have their own interests. And that’s one of the reasons why purposivist arguments in general are so mushy and subjective, precisely because once you start talking about values, oftentimes there are multiple values in play and oftentimes you can extrapolate from those values to reach different conclusions, which is exactly what I think it leads to the indeterminacy here.

Joel Alicea:
Professor Smith… I have a specific question for each of you, and then we’ll go to the Q&A. But I wonder if your argument that there were no rules, campaign finance regulations at the founding, whether that really just implicates a level of generality issue, which is ubiquitous in constitutional law. But when it comes to historical practices, I think that can be a particular problem. Because it seems like you agree, and Professor Morley agrees, broadly with something that Professor Lessick said, which is there’s a real concern about corruption in general at the founding. There’s a real concern about the political process becoming hijacked, right? That’s a concern at the founding, okay?

They might have done all sorts of things to regulate and prevent that. Apparently they didn’t do campaign finance regulation. Okay. But, and this goes back to our first panel where Professor Campbell, in his historical account of the free speech clause, I think might say, well, but if there’s a general authority to regulate for various legitimate purposes, and one of them was corruption, like fighting corruption. Then the mere fact that they chose not to enact campaign finance regulations at the time can’t be a statement that they didn’t think they had the authority to regulate it because they did have the authority to regulate corruption, to prevent corruption.

And so, why wouldn’t that principle be the relevant principle for thinking through this question from an originalist point of view?

Bradley Smith:
Right. I think about the question. The fact that they didn’t do some type of regulation doesn’t mean they didn’t think they could, they just didn’t see a need for it at the time or just weren’t creative enough. Never occurred to anybody, “Oh, well, why would you stop them from speaking about politics at all, or limit their amount severely, or shorten it way down?” Certainly, that’s true, but then I go back to the fundamental language of the Constitution, which says, “Congress shall make no law abridging the freedom of speech.” Now, again, we know I think that they anticipated exceptions for the traditional common law, exceptions like defamation. Right?

But there’s no evidence that they anticipated anything else. And the fact that they didn’t pass laws and didn’t think about generally saying, “We’re just going to limit the amount of political speech,” suggests it’s evidence that they weren’t favorite. If you’ve got countervailing evidence, great. But if your countervailing evidence consists of nothing more than, “Well, yeah, sure you got evidence, but it’s not 100% conclusive.” Maybe they did think that. I just don’t find that very convincing is what it comes down to. I think we have to look at the evidence that we have and say, “What’s the best interpretation of the Constitution?” And I just don’t think there’s much there that suggests that anybody thought that you could regulate political speech that was not, again, libelous, that was not false advertising, that was not seditious. Even the Alien Sedition Act said, “Got to be seditious.” It didn’t just say any speech about politicians can be limited in its amount.

Joel Alicea:
Professor Lessig, feel free to jump in on that point, but I wanted to put to you an argument that Professor Smith made that I guess I have not heard before, even though it might be very current in campaign finance scholarship. This point that he made about, well, maybe the relevant question here isn’t the free speech clause. Maybe the relevant question here is the time, place, and manner clause, the elections clause. Because if manner means what he says it meant originally, and if this is a provision explicitly about federal ability to regulate elections, then wouldn’t you draw a negative implication that Congress doesn’t have the power to enact campaign finance laws, and so we never even get to the free speech clause issue? What’s your response to that argument?

Lawrence Lessig:
One particular context where that has contrary precedent is in the electors clause cases, which I lost nine to zero in the Supreme Court, where the scope of the state’s power was tied to that same language and that didn’t seem to limit the court from its willingness to see the states having much more power over electors than they otherwise would. I do think that it is true that we have for many years wondered, where does the power, especially to regulate the presidential elections come from given the presidential electors are state structured systems? And why does the federal government have anything power to do that? Why does it have power to regulate voter fraud? Why does it have power to regulate that range of activity?

And so, one might start, and against the earlier comment, the earlier intervention from the first panel suggests, maybe we want to start by just saying you have no power to do anything in this space. I don’t think that the way of reading federal power not to include the ability to protect the institution of representative democracy is compelling. I don’t think that originally it would have been compelling, that they wouldn’t have had any power to protect the integrity of representative democracy. And I think that remains now. And so, to the extent you’re regulating this entity that never really existed before, these things like super PACS. Because you’re concerned about the integrity of representative democracy, I think that fits more in the description you were saying before that this is a kind of thing they have the power to regulate to advance. They didn’t do this particular one because this particular thing never existed before.

Joel Alicea:
And of course, just to add to your point, even if Professor Smith’s argument were right and taken as true for purpose of Congress’s power, you couldn’t avoid the free speech issue entirely because then that would just mean that the states might just step in and start regulating campaign finance for the federal level, federal officers. And the question is, does that violate the future? The Montana case being an example of that.

Professor Morley, I didn’t plan for this, but I thought it was great that we ended up with two views that Buckley has got serious problems, or if not should be done away with but for very different reasons. And then you saying Buckley’s actually fine. It’s great. But what about the challenge to Buckley? Maybe this is a… Let me set this up better. Bruin, this Second Amendment case says there’s a problem with courts analyzing whether the ends that the government is trying to achieve are sufficiently compelling and whether the means are sufficiently tailored. This really does seem illegitimate. It seems like the judges are deciding whether this is an important enough interest for the government. And that does seem at odds with campaign finance laws structure right now, right?

You said you thought that they had basically got it right in Buckley, and it seems like it was because you agree with the analysis about which is more likely to infringe on the freedom of speech, which kind of regulation might be more likely to lead to corruption or not corruption. That’s exactly the kind of reasoning that you see in McCutcheon and Citizens United, and it’s exactly the kind of reason that it seems Bruin doesn’t like. Given that this panel’s about originalism and campaign finance, how do you reconcile this approach to thinking about campaign finance with the concerns expressed in cases like Bruin, if you can at all?

Professor Morley:
I guess I have two responses. The first is with the strong proviso, I am by no means a Second Amendment scholar. My general impression of lower court Second Amendment cases is that Bruin hasn’t been working out very well. That the whole history and tradition approach has led to just as much disagreement, just as much subjectivity, just as much debating over whether particular examples are relevant or not, or close or not. That to the extent this is supposed to provide that external objective discretion limiting standard. At least, again, my impression as not a subject matter expert on it, is that it doesn’t necessarily seem to be doing that great of a job there.

My other bigger picture responses, current constitutional doctrine is a mess, right? Every single provision of the Constitution is interpreted differently. You have some originalist provisions, you have some very non-originalist provisions. You have some provisions where the court says, “We’re going to apply the text very carefully.” You have other provisions where the court says, “We don’t care what the text says. We want to effectuate the underlying purposes beneath the text.” In part, because this is like a chain novel where it’s written at very different points in time by very different justices, applying very different theories. And so, on the one hand, taking one opinion like Buckley v. Vallejo and saying, “Well, this isn’t originalist, and so let’s get rid of it. Let’s hold it to the standard that certain other opinions are.” You wind up with this almost Frankensteinian system then where, well, maybe because you haven’t used originalist reasoning for certain parts of the Constitution, you have to adopt a second-best approach then to other parts to offset it and to keep the system running that maybe your first best solution would be originalism across the board.

Although, I would say particularly, I see possibly some law students in the audience, right?

Professor Morley:

Your constitutional law book is 1,600 pages long, probably cost you $300. If it were a Thayerian constitutional law book, it’d be 20 pages long and it cost you five bucks. None of constitutional law would exist, or at least very, very little of it would exist if we were truly in good faith applying an objectively Thayerian approach.

Professor Morley:
The sort of deference where it’s the legislature’s job to say what the public interest is, it’s Congress’s job to say what’s in the public interest. We are only going to enforce a clear objective. Some states actually report to apply the standard. Some states Supreme Courts say we’re only going to invalidate something under the state constitution if beyond a reasonable doubt, which is a factual standard, not illegal. But putting that aside, if beyond a reasonable doubt, we’re convinced of a violation there.

There’s certainly a big picture conversation to be had about, how should the constitution as a whole be interpreted? But I also think then there’s a real world conversation to be had about, given that we don’t have that best Constitution, are there circumstances where a second-best approach, what might even be an inaccurate approach in the ideal world, should nevertheless be implemented?

Joel Alicea:
Yeah, for sure. When we’re dealing with the topic of free speech originalism, second best is going to loom large in that kind of discussion. Okay, let’s go to questions from the audience. I will ask you to do three things, as I said in the first panel. One, wait for the microphone to get to you. Number two, say your name. And number three, ask a concise question. I will cut you off if you go too long. So, questions. Professor Sachs.

Professor Sachs:
Steve Sachs, with apologies for taking up additional airtime. My question is, what is the role of associational rights here, and where do those come from? Because it seems like a lot of the questions are not about individual expenditures. It’s not Elon Musk literally printing up his own pamphlets and handing them out. But it’s, when can a group of people get together and pool their money in some relevant way? And it seems like that could create the same kinds of concerns. And the First Amendment doesn’t… The assembly right, maybe, John and Ozzie has argued. But I’m just curious of where rights for things like NAACP versus Alabama, or other cases where we’ve recognized the right of people to act in groups together would be understood. It’s coming from.

Lawrence Lessig:
Yeah. I would say the presumption is we could see them as exactly parallel, the associational rights and the free speech rights. And we should see the corruption concern. Now I want to, again, double down on Morley’s, there’s nothing wrong with the basic framework of Buckley’s claim. The same analysis that Buckley would give to the question of whether there’s a corruption interest to be regulated. In the context of ACL Alabama, there’s not a corruption concern there because they’re associating, but not in a way that’s going to underline the integrity of the governmental process. But in the context of super PACS, you might be worried that the association there in the context of creating a dependency inside of an election raises a corruption concern because there’s no non-coordination obligation inside those super PACs the way there is a non-coordination obligation for the independent expenditure.

Whereas the independent expenditure committee can tell its staff, “Do not talk to the campaign. Here’s what you’re not allowed to do to the campaign. This is what we do to make sure we are independent.” When they receive a $10 million check from somebody, they have no way to know exactly how that check related to candidates or campaigns. Right? That’s raising the corruption concern that can be significant enough to override the presumptive First Amendment associational interest.

Bradley Smith:
I wasn’t initially going to say anything here, but then Larry said something that makes me have to say something. Of course there’s a corruption concern in NAACP versus Alabama. The state was extremely concerned that these out of staters were coming in and spending a lot of money to stir up all kinds of trouble and make it impossible to govern their state. The whole problem with this idea of a free floating, anti-broad corruption principle that’s untethered to any language of the Constitution is exactly that. That you’re telling the legislature, whatever you think is corruption, even plausibly, go for it. Especially if we’re not going to allow judicial review of it or truncated judicial review.

Today, I think that most, probably all of us in this room, would not agree with the idea that there was a great fear of corruption in Alabama. But I think the Alabama legislature in 1957, ‘56, and their attorney general truly thought so, that they would have define that the NAACP was corrupt. The NAACP, by the way, was clearly not complying with state corporate law. The NAACP themselves admitted that in the case. This is why I think that, in the bigger picture, it is all part of the same book. And again, we don’t want to be focused on general values. We want to say, what did the Constitution actually say we should do to accomplish the ends and the values that are reflected in the Constitution?

Lawrence Lessig:
Yeah. You’re demonstrating, by using the word corruption in this completely undisciplined way, the point you’re trying to make that corruption can be used in a completely undisciplined way. But I would suggest that Buckley was pretty disciplined about its conception of what it meant by corruption. It meant using money to distort a political process to force politicians to be making decisions on the basis of the money as opposed to on something else. And when they talk about the appearance of corruption, the concern is people look at the system and they can’t help but believe that the reason the decision is being made is the money, not the merits of the decision. That’s what they were talking about in corruption. NAACP doesn’t raise that concern.

Because whatever else you thought was going on in Alabama because of what they were doing, they might have been causing lots of trouble. They might be like trying to lead to create violence maybe. Nobody was suggesting that they were in some way buying off the legislature of Alabama, that’s just not the kind of corruption that they were addressing.

Professor Morley:
Can I push back a little bit on that? I read Buckley differently. I read Buckley as embodying a narrow view of corruption. The court’s explanation, again, as to why independent expenditures in its view don’t raise the risk of corruption, is because if an expenditure is truly independent, then by definition, there’s no interaction with the candidate, there’s no opportunity for a quid pro quo. So, I read Buckley as embodying a quid pro quo conception of corruption.

Having said that, by the time you get to 2003 then, McConnell versus FCC, it is not purporting to overrule Buckley, but it is embracing a much, much broader conception of corruption. Which then, seven years later in Citizens United, the court says ingratiation and access are not corruption. We are going back to Buckley, we’re going to pull out the quid pro quo language from Buckley, and we’re saying constitutionally the only type of cor… And there were other rulings, the National Conservative PAC ruling they were able to draw on as well. But they were saying the only type of corruption that Congress has constitutional authority to target is this quid pro quo corruption.

And so, I think a lot of the debate that you guys are having is pretty much the fight between McConnell, the case, and Citizens United over how broad or narrow is this constitutionalized version of corruption? And as you were talking, the thought that came to my mind is, the whole reason we have a constitutional requirement that congressional districts need to be the same size, right? It would make a lot of sense to me if that came out of the equal protection clause, like one person, one vote, everybody. That’s not where that lives constitutionally. The story the Supreme Court told as to why one person, one vote applies to congressional districts is Article one, Section two. And the court said a story, the House shall be chosen by the people. And therefore, the court read into that this notion that the people should have equal votes, the representatives should be responsible to the people.

They basically baked the concept of fair elections and representativeness into this Article one, Section two concept. And so, again, this goes back to the different provisions of the Constitution have been read in different ways. If you can squeeze equal population districts out of Article one, Section two, then I certainly think you can squeeze fair elections and not being beholden to rich donors out of Article one, Section two. But that just begs the question, how much law do you think is wrong?

Bradley Smith:
And none of those purport to be originalist decisions.

Joel Alicea:
Just very quickly on this before we go to the next question. It does strike me, Professor Sachs, that there’s a similar dynamic here on associational rights as there is on the role of money and speech, right? That money is regulated in a way that affects speech because it is a prerequisite to much speech. And that’s what implicates the free speech clause for campaign finance purposes, going back to Buckley, right? And associational rights, the justification the Supreme Court gives us very similar. It’s a prerequisite to a lot of expression to be able to associate with other people. There’s a Law Review article that has to be written about this at some point about all these things across domains of constitutional law that are not themselves the right, but are prerequisites to the expression of the right.

I think I saw a question back here. Yes.

Audience Member 3:
My name’s Dan Greenberg, I’m from the Cato Institute. I’d like to ask you about an unusual feature of Buckley that I think might be relevant here. When the court issued that decision, it rewrote or remolded the law slightly so as to comport with the Constitution. For example, express advocacy really comes from Buckley rather than coming from the statute that it examined. And sometimes the court has decided that it gets to choose between remolding the law a little bit and just striking the whole thing down.

Another example of this is somewhat famously NFIB versus Sebelius. And what I want to ask you is, does this kind of unusual circumstance and this unusual judicial role cut against the force of originalism in these kinds of cases? Because originalism is supposed to get rid of certain kinds of discretion or discourage certain kinds of discretion. But it looks like Buckley and NFIB really allow for a kind of legitimate judicial discretion, which is not really legitimate generally.

I wonder, does this mean that an originalist critique of Buckley by its nature has relatively little force as compared to other kinds of areas in the law where originalism seems stronger?

Lawrence Lessig:
Well, I think you’re right that there’s a bending recognizing that if they had just thrown the whole thing out it would have been quite dramatic, given what had led to that law being passed initially. But I don’t take the framework of an originalist critique of Buckley to be an originalist critique of a decision that thought of itself as an originalist opinion. An originalist critique of Heller would be a critique of the originalism in Heller. And obviously many people have written extensively about that kind of critique, but Heller thought of itself as an originalist opinion.

As I think Michael said, and I was asserting, they certainly… And this is the one thing all three of us I think are agreeing. They certainly didn’t think of themselves as engaged in that kind of enterprise, because in 1976 nobody really was engaged in that enterprise. Bork had written in ‘71 to tee this thing up, but it still hadn’t become anything. They were running a different enterprise, like Roe versus Wade was running a different enterprise. And then, later cases come along and they say, “Okay, now we’re embracing a certain discipline called originalism, and we are going to evaluate these earlier cases with that discipline in mind.”

I think that’s a fair method, and you’ve got to be committed to originalism to engage in it. But if you’re committed to originalism and you engage in it, it’s a critique of the result, not an originalist critique of the internal structure of what that opinion is.

Joel Alicea:
Well, thank you all for coming to this conference. And please join me in thanking our panelists.

First Amendment Originalism Transcript

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