ORIGINALISTS ON THE SUPREME COURT IN THE 21ST CENTURY
In mid-2012, two self-identified originalists sit on the Supreme Court of the United States: Justices Antonin Scalia and Justice Clarence Thomas. Justice Scalia is by far the more vocal of the two, prompting commentary by Jeffrey Rosen in The New York Times early in 2011, “If Scalia Had His Way: What the United States might look like under an originalist interpretation of the Constitution.” Rosen, a law professor at George Washington University, wrote:22
Justice Scalia believes that the Constitution should be interpreted in light of the original understanding of its 18th-and 19th-century framers and ratifiers. That, he has stressed in recent speeches, would change our constitutional universe dramatically.
Rosen wrote, “For starters, Justice Scalia said a return to the founders’ vision means states could impose the death penalty on anyone – including juveniles or the mentally retarded, for example, and there would be no abortion rights or rights of assisted suicide for the terminally ill.” Professor Rosen noted that conservative Justices including Clarence Thomas and Samuel A. Alito “ . . . disagree among themselves about what the founders would have thought about technologies that didn’t exist when the Constitution was written.”23
Rosen quoted liberal University of Chicago law professor David Strauss: “’If you took the originalists at their word, you could punish people for criticizing the government, the federal government could discriminate against anyone it wanted to, and there’s a real argument that the interstate highway system is unconstitutional. The federal prison system and criminal law would be in serious question.” But maybe what the originalists say is more politics than scholarship. A conservative constitutional historian, Michael McConnell of Stanford Law School, says originalists sometimes show “ . . . a distinct lack of interest in following the original understanding when it becomes inconvenient.”24
A respected U.S. Court of Appeals Judge J. Harvie Wilkinson had harsh words for originalism, which he declared “ . . .offers only ambiguous historical evidence if any at all. The result is a theory with such loose analytical boundaries that it can be used to support a variety of outcomes on thorny constitutional disputes.”25 Somehow, it is not comforting to guess what the originalists on the Court might do to lessen support for freedom of speech and and of the press in the 21st century when the nation seems to be perpetually at war
After all, it was just seven years after the First Amendment was ratified in 1791 that Congress passed the Alien and Sedition Acts of 1798, making it a crime to criticize government. Those measures were passed by a Federalist Congress, and signed into law by a Federalist President, John Adams. In 1798, the Federalists feared that war would begin with France or that another revolution would divide the country. Under the Sedition Act, 14 anti-government speakers or newspapermen were procecuted and all were convicted. For example, Anthony Haswell, editor of the (Bennington) Vermont Gazette published a complaint about the jailing of another newspaper printer, Representative Matthew “Ragged Matt the Democrat” Lyon in jail for four months. That member of Congress had published a letter in a newspaper claiming that President Adams showed “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” Haswell was fined $200 (perhaps the equivalent of three or four years’ wages then) for supporting Matthew Lyon.26
Does this seem like mere ancient history? Then consider the USA PATRIOT ACT of 2001. [The name of the act is an acronym for Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.] Passed by Congress within weeks after the 9/11/01 terrorist attacks on the United States in which Al Quaida airplane highjackers killed more than 3,000 persons when they flew three airlines, two into the twin towers of the World Trade Center, and one into the Pentagon in Washington, D.C. A fourth airliner never made it to the highjackers’ target, the Capitol in Washington. The Patriot Act loosened FBI restrictions on infiltrating civic and church groups, looking for terrorists. Across the country, thousands of FBI visits were made to public and university libraries, inquiring about library usage by patrons. The Patriot Act ended the rule that the FBI get a subpoena before checking library use by individuals.27 And an Army intelligence agent went to the University of Texas School of Law to get information from an academic conference underway there. The agent demanded a videotape so he could check on “suspicious remarks” made by three “Middle Eastern Men” to army lawyers attending the seminar.28 Those are just a few references to the war hysteria and encroachments on privacy that have affected the United States since 9/11/2001. But such hysteria when a nation is under threat is nothing new. As the legal historian Fredrick S. Siebert wrote in his classic study, Freedom of the Press in England, 1476-1776, the area of freedom tends to contract as stresses on government and the structure of society increase.29
22 Jeffrey Rosen, “If Scalia Had His Way: What the United States might look like under an originalist interpretation of the Constitution,” The New York Times, “Week in Review” section, Sunday, January 9, 2011, p. 1.
23 Ibid., p. 7.
25 J. Harvie Wilkinson III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (New York: Oxford University Press, 2012), pp. 46-47.
26 James Morton Smith, Freedom’s Fetters (Ithaca,New York: Cornell University Press, 1956), Chapter 6 and p. 185. This is the leading history of the Alien and Sedition Acts of 1798-1800.
27 Anna Radelat, “Some Chafe Under Government’s Expanded Snooping Powers,” Gannett News Service, Aug. 14, 2002.
28 Robert Block and Gary Fields, “Is military creeping into domestic spying and enforcement?” The Wall Street Journal, March 9, 2004.
29 Fredrick S. Siebert, Freedom of the Press in England, 1476-1776 (Urbana: University of Illinois Press, 1954), p.11.