In response to my post on originalist approaches to the Supreme Court's pending free speech cases, Tom Bell writes:
A quick reply to your question, "If you don’t like the originalist approach, is there any way to deal with Golan and Alvarez other than by asking whether the restrictions are good as a policy matter . . . ?" Yes. We should interpret the Constitution according to its plain, present, public meaning, and construct it so as to favor of individual rights over government powers.
Both time-tested principles come from the common law of contracts, applied by extension, and together they generate objective and relatively clear answers to constitutional questions. Just to get the process started, I note that the First Amendment speaks categorically of "no law," a requirement that, while certainly subject to quibbling, suggests very, very broad protections for our freedoms of expression. As for Golan [v. Holder, the pending copyright case], the copyright clause, properly construed, limits the grant of exclusive rights to the service of promoting progress of the useful arts and sciences. It does not give lawmakers carte blanche to hand out goodies at the expense of public rights to engage in unoriginal speech.
I don't think Tom and I are all that far apart here, on Golan anyway. I've noted that in many cases the modern meaning of language is similar to the founding-era meaning; I think in the free speech area that's plausibly true, and the constitutional language appears on its face to be absolute, so that the burden should be on those defending the government action to show founding-era practice in support. That probably produces parallel results to Tom's approach in many cases (including Golan). But unless Tom wants to protect all speech (and I bet he doesn't), I'm not sure how he is going to draw the line (even if Golan and Alvarez aren't close to it).
Also on Golan, Nicholas Rosenkranz writes to point out that while the government had initially appeared to defend the law as necessary to implement a treaty (see here), the government seemed to back off from that claim in oral argument:
JUSTICE SCALIA: General Verrilli, I do not find that an appealing argument. It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. I mean, this is either okay under the copyright clause or it isn't.
GENERAL VERRILLI: We completely -
JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government -
GENERAL VERRILLI: We completely agreement [sic] with that, Justice Scalia. There is no textual limit in the Copyright Clause that would preclude Congress from enacting this statute.
Note that Scalia's comment appears to go beyond the immediate case and call into question the holding in Missouri v. Holland that Congress can implement a treaty on matters otherwise not within Congress' enumerated powers.
I say that Scalia's comment goes beyond the immediate case because Golan (unlike Missouri v. Holland) also involves a specific prohibition on Congress: the First Amendment. Even if Missouri v. Holland is correct that Congress can go beyond its other enumerated powers to implement a treaty, surely Congress can't disregard specific constitutional prohibitions ("Congress shall make no law…") to implement a treaty. Otherwise, the treaty would in effect amend the Constitution. But in the comment quoted above Scalia doesn't seem focused on the First Amendment; he's focused on Congress' enumerated powers. That suggests he's contemplating a frontal assault on Missouri v. Holland (a point raised a while back in this post).
Posted at 11:27 PM