Vincent Blasi: “This is all about checking—that's what the First Amendment is really all about.”
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.”