 |
|
Vincent Blasi: “This is all
about checking—that's
what the First Amendment is really all about.” |
Posted March 5, 2004
First
Amendment Author James Madison “Belated” in Discovering
Its Importance
James Madison didn't understand the importance of the First
Amendment until 10 years after he authored it, said Vincent
Blasi,
who gave a lecture March 2 honoring his appointment as the James
Madison Distinguished Professor of Law. Madison's experience
challenging the Sedition Act, which sought to quiet Jeffersonian
newspapers during the final years of the Adams administration,
led him to believe that freedom of the press is a crucial component
in preserving the liberty of individuals from a possibly tyrannous
minority.
“He was belated in appreciating the importance of the First
Amendment and possibly even its potential meaning,” Blasi explained.
While many observers thought his shift in opinion was ad hoc
in response to circumstances, Blasi asserted, “the change had
been in process for most of the decade of the 1790s.”
Madison thought freedom of the press would be useful against
an oppressive monarchy as a means of mobilizing popular resistance.
He did not envision a comparable role for a free press in a republic
because in that form of government the most common oppressor
is a majority of the people themselves. “He believed that [in
a republic] the key to preserving stability and the rights of
the minority is intelligent institutional design” informed by
the object lessons of history, Blasi said. Madison doubted the
effectiveness of an eloquent declaration of rights, which he
dismissively labeled a “parchment barrier.” The principal safeguards,
as he viewed the matter, were devices to prevent the concentration
and consolidation of governmental authority. These included the
separation of powers, federalism, and what he termed the “extended
sphere,” by which Madison meant a territorial jurisdiction large
enough to encompass a multiplicity of interests, passions, and
ideologies that would keep each other in check. The conventional
wisdom of his day held that smaller units of government provide
a greater safeguard for minority rights. Madison thought the
reverse: that smaller units of government allow a cohesive oppressive
majority to form. In Madison's extended sphere, internal controls
such as checks and balances were more important than external
controls such as popular opinion or elections, although he did
envision a periodic checking role for an electorate devoted to
choosing virtuous, independent, and incorruptible representatives.
Madison's view of how to preserve liberty began to shift during
the first Washington administration as he witnessed with dismay
how Treasury Secretary Alexander Hamilton implemented a complex
system of public finance that permitted him to consolidate power
in the national government in such a way as to overwhelm Madison's
carefully designed system of checks and balances. Hamilton had
studied with admiration the role that innovative public finance
had played in the building of the British Empire. He developed
a plan for the federal government to assume Revolutionary War
debts, establish a national bank, and subsidize fledgling industries—all
undertakings that offered members of Congress and leaders of
the financial community handsome opportunities for windfall profits.
This policy created a group of influential leaders who were indebted
to Hamilton and who possessed a personal stake in the flourishing
of the federal government, Blasi said. Hamilton's plan “also
made the federal government dependent on customs revenues from
imports, and most of those imports came from England.” Madison
was concerned that too many officers of the U.S. government
had financial incentives to favor England over France in the
ongoing war between those countries, making it impossible for
his country to steer a neutral course.
Madison decided that new checks were necessary. “At this point
he changes his views about political parties. He begins to see
the possible role of political parties as sources of potent organized
opposition,” Blasi said. Madison and others knew from history
that within a legislature political parties were unavoidable.
The big change for him was to imagine how in a republic the preservation
of liberty might be served by national organizations dedicated
to influencing public opinion and winning elections. “Public
opinion sets bounds to every government, and it is the real sovereign
of every free one,” Madison wrote in the wake of Hamilton's
coup in consolidating power in the “extended sphere” of the United
States. “Now he's trying to keep the sphere closer,” Blasi observed,
and thinks that newspapers protected by freedom of the press
and close contact between representatives and their constituents
is the way to accomplish that.
The experience of these years led Madison to emphasize external
checks rather than the internal checks which had more or less
failed. “The success of Hamilton indicated to Madison that there
is more of a risk of minority factions coming to be oppressive
than he had previously thought,” Blasi said. In the Federalist
Papers, Madison had said that majority factions were the real
problem. But with the emergence of a threat from a well-organized
and financially motivated minority faction—as he viewed Hamilton's
supporters to be—Madison began to perceive a role for public
opinion in the system of checks and balances, and began to consider
how the freedoms of speech and press could be important safeguards
assisting in the mobilization of oppositional opinion.
By 1798, the concept of organized political opposition had taken
hold, Blasi said. At the same time, however, the unfolding of
the French Revolution and the ensuing war between France and
England stirred up cultural and ideological antipathies in the
United States that posed a new kind of threat to political stability
and respect for rights. Madison feared for how the external checks
of public opinion and free elections would fare with the prospect
of a war against France on the horizon. “He thought the prospect
of war—and even more broadly when national politics turns mostly
toward foreign relations—would activate a dynamic he most feared,
which was the concentration of power in the most dangerous branch”—the
executive branch, which he viewed as dangerously prone to war.
His fears appeared valid when the Adams administration used its
power to control the selective release of information, such as
dispatches from ambassadors and instructions to treaty negotiators,
to exacerbate public hostility toward France.
His concern about unchecked political power reached a climax
when in the lead-up to the presidential election of 1800 the
Federalist Party, which controlled all three branches of the
federal government, attempted to rein in or shut down the major
Jeffersonian newspapers by passing the Sedition Act of 1798.
The Act made it a crime to publish any false, scandalous, and
malicious writing against the government of the United States, the President, or either house of Congress—but not against
the Vice-President (Jefferson).
“Lest there could be any doubt about the political motivation,
there was an expiration date set—the last day of the Adams administration,” Blasi
noted.
Blasi read samples of the writings for which persons were convicted
under the Act. Mathew Lyon, a Jeffersonian congressman from Vermont, had said: “Under Adams every consideration of public welfare
is swallowed up in a continual grasp for power and an unbounded
thirst for ridiculous pomp and foolish adulation and selfish
avarice. The Senate treats Adams with more servility than ever
George III experienced from either house of Parliament.” For
this polemic Lyon spent four months in jail and paid a $1,000
fine; he was reelected from prison. Blasi said that a gap in
Jefferson's and Madison's correspondence during this period is
considered by some to show that they were communicating in secret
so as to avoid being prosecuted under the Act.
Madison believed that under the circumstances the only place
to organize resistance against the Alien and Sedition Acts was
in state legislatures. He authored the Virginia Resolutions,
which were passed by the Virginia legislature, asserting the
unconstitutionality of the federal laws. Jefferson drafted a
comparable set of resolutions for adoption by the Kentucky legislature.
Defenders of the Sedition Act claimed that it was less oppressive
than the common law crime of seditious libel in that it permitted
the affirmative defense of truth. But Madison pointed out in
his Report on the Virginia Resolutions that truth is hard to
prove, especially before a judge and jury that is hostile to
the defendant's political beliefs. Furthermore, most persons
convicted under the Act—Congressman Lyon for example—had
been prosecuted for subjective opinions, characterizations, and
conjectures rather than statements of hard facts that could be
established in court. Defenders of the Act also noted that only
malicious speech was subject to punishment. Madison responded
that legitimate political criticism often can be characterized
as “malicious” because
when officers of government are accused of breaching the public
trust, the natural and appropriate consequence is to engender
feelings of contempt and even hatred in citizens who have been
thus betrayed.
Because the exposure of abuses of office is designed to damage
the reputations of transgressing public officials, Madison thought,
the very concept of seditious libel is problematic in a system
of government based on the consent of the governed. He noted
that the tasks of overthrowing British colonial rule and later
replacing the inadequate Articles of Confederation had been undertaken
with heavy reliance on sharp challenges to the legitimacy of
the preexisting regimes—in effect, with “seditious” speech. Unlike
in England, sovereignty in the United States resides with “the
great body of the people” and not with the officers of the government,
Madison observed. In such a system, there is no place for the
concept of seditious libel.
Madison's detailed case against the constitutionality of the
Sedition Act, spelled out in his Virginia Report, did not assert
a right to free speech as such. Rather, the right that Madison
emphasized was “the right of freely examining public characters
and measures.” Moreover, he linked this right to the right of
election as part of the overall system of public accountability.. “He thinks that the First Amendment in fact is part of the
system of checks and balances,” Blasi said. “It's about breaches
of the public trust and remedies for the breach of public trust.” For
Madison, the First Amendment is not about self-expression, the
search for truth as an end in itself, or even the opportunity
for political participation as a means of self-fulfillment—it
is about checking abuses of power.
So how has Madison's understanding of the First Amendment figured
in modern adjudication? In New York Times v. Sullivan (1964)
the lawyer for the Times, Herbert Wechsler, claimed that a libel
verdict against the newspaper violated the First Amendment. In
making this claim he had to confront the fact that ever since
the beginning of the republic libel had been considered not a
matter of First Amendment concern. But Wechsler ingeniously chose
to fight history with history. He argued that a libel action
brought by a public official for criticism of his conduct in
office is analogous to a prosecution for seditious libel in its
potential effect on public accountability. In the rejection of
the Sedition Act of 1798, Wechsler maintained, citing Madison, lies the key to understanding the First Amendment. The Supreme
Court embraced this view, stating in its opinion that the controversy
over the Sedition Act “first crystallized a national awareness
of the central meaning of the First Amendment.”
This was an inspiring moment in the history of First Amendment
interpretation, said Blasi. Yet, “in the years since, the Court
has made very little use of this idea.” He speculated about what
opinions would have looked like in some major First Amendment
cases had Madison's understanding been more fully exploited.
For example, the provocative gesture of burning the American
flag cannot be considered a form of rational deliberation. It
constitutes a gesture of defiance designed to offend the people
who witness it. Nevertheless, the sheer drama of such defiance
is an element in a process both of discrediting the government
and mobilizing resistance to its policies. The fact that flag
burning is not part of a discussion with give-and-take and possible
compromise is less important from a Madisonian perspective than
it would be under a view of the First Amendment that emphasized
the search for truth or collective understanding. Moreover, one
reason a protestor may burn the flag is to weaken the strength
of the patriotic symbol that the government employs to advance
its own ideas. In that sense, such burning can be considered
a variety of seditious speech, and for that very reason protected
by the First Amendment.
A view of the First Amendment informed by Madison's thought
would also support the Court's controversial decision in Buckley
v. Valeo (1976) to strike down limitations on how much
money can be spent in a political campaign. The proper inquiry,
however, would be empirical: nothing that Madison ever said about
the First Amendment leads to the view, adopted by the Court in Buckley,
that citizens and candidates have a fundamental personal right
to spend whatever they wish on elections without regard to the
consequences of such spending on the electoral process. The pertinent
empirical question is whether spending limits in actual effect
strengthen or weaken the process of exposing abuses of the public
trust by incumbents. Some students of campaign finance claim
that challengers have to outspend incumbents in order to be competitive.
If this were true, the net effect of spending limits could be
to insulate many officeholders, including those who have abused
their trust, from meaningful electoral accountability. On the
other hand, on average incumbents outspend their challengers
by a margin of almost three to one in Senate races and almost
two to one in elections for the House of Representatives. In
most contests, spending caps would operate to the advantage of
challengers who otherwise would face much better financed incumbent
opponents. The issue is close, but the dominant consideration
in Madisonian terms should be to ensure that the misdeeds of
an incumbent seeking reelection achieve sufficient public scrutiny
for the electoral check to work. For that purpose, any restriction
on what a challenger can spend must be considered problematic
under the First Amendment, even if the consequence is a continuation
of the modern pattern of incumbents significantly outspending
their opponents. A realistic assumption behind this judgment
is that once exposed, serious misdeeds by officials can seldom
be explained away or marginalized by unlimited campaign spending
by a miscreant incumbent. There is evidence, moreover, that additional
increments of spending by challengers have a greater impact on
voters than do comparable sums expended by incumbents, suggesting
the peculiar importance of unrestricted spending by challengers.
On balance, Madison's
characterization of elections as remedies for the breach of trust
rather than as measures of collective policy preferences or opportunities
for equal political participation favors the result in Buckley, Blasi
said.
In the Pentagon Papers litigation (New York Times v. United
States, 1971), the question was whether the First Amendment
protects either the press or private citizens in publishing
classified government information. Blasi concluded that Madison's argument supports the view that the dissemination of information—even
classified information—about possible abuses of government
power “is not only a legitimate First Amendment activity, it's
a preferred First Amendment activity.” That does not mean that
publishing government secrets is protected in all circumstances,
but the government must have very strong, specific, well-supported
reasons to limit this quintessential First Amendment activity.
In the Pentagon Papers case, the government failed to establish
the strength of its asserted regulatory interest. Subsequent
memoirs by various actors in the controversy indicate that
the Nixon Administration's principal motivation for attempting
to enjoin publication of the Papers was not a concern about
any specific revelation but rather the desire to maintain general
credibility in international diplomacy. Such a justification
grounded in the reputational interests of the government is
reminiscent of the rationale for seditious libel, Blasi observed,
and cannot serve as the basis for restricting a core First
Amendment activity. In contrast, some legitimate government
activities require secrecy for practical reasons unrelated
to the protection of official reputation. One example is the
use of undercover intelligence agents. A law making it a crime
to expose the identity of such an undercover agent—such a statute
has been on the books since 1982—should not be considered a
violation of the First Amendment, even under Madison's checking
rationale.
Blasi concluded his lecture by quoting Justice Hugo Black's
opinion in the Pentagon Papers case, the last opinion ever written
by the Justice, whose place in history has much to do with his
reading of the First Amendment. After making several references
to Madison, whom he had studied for most of his life, Justice
Black said: “The Government's power to censor the press was abolished
so that the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained
press can effectively expose deception in government. And paramount
among the duties of a free press is the duty to prevent any part
of the government from deceiving the people and sending them
off to distant lands to die of foreign fevers and foreign shot
and shell.” Blasi added, “If any result, if any opinion, if any
paragraph deserves the encomium ‘Madisonian,' that's the one.”