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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.”
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