In a recent post, Eric Segall criticized the Supreme Court for ignoring the Constitution’s text, and gave as a leading example the First Amendment. He argued:
The first amendment says the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches.
It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning.
I’m happy to criticize the Court for ignoring the text, but I think the concern here is overstated. Mostly (but not entirely) the reference to Congress is consistent with modern law, though explaining why is an interesting exercise.
(1) To begin, the concern about application to state and local entities is entirely misplaced. The First Amendment doesn’t apply directly to the states and no one thinks it does. On an originalist/textualist analysis, "the freedom of speech" (for example) applies to the states, if at all, through the privileges or immunities clause of the Fourteenth Amendment. (Modern law applies it through the due process clause but essentially no originalists agree; some originalists reject incorporation altogether, though most I think agree with the privileges or immunities approach.) The Fourteenth Amendment says that “No state shall make or enforce any law which shall abridge the privileges or immunities …”, so assuming that the freedom of speech is a privilege or immunity, the Amendment seems obviously to apply to all branches of the states’ governments, including the executive, the courts, and any local subdivisions exercising the delegated authority of the state.
(2) As applied to the federal government, there is a textual puzzle. One might say that “Congress” is actually a shorthand for all of the federal government, but that seems wrong. No other Bill of Rights amendment is written that way – most are written in the passive voice, so that they apply equally to all branches. For example, the Second Amendment: "the right of the people to keep and bear arms, shall not be infringed" – thus meaning, shall not be infringed by any part of the federal government. So I agree with Professor Segall that the First Amendment’s text inescapably applies only to Congress and not to the other branches of the federal government. But I think this has only limited implications that are mostly consistent with modern law.
(a) As to the courts, this indeed means that federal judges are not limited by the First Amendment when they act under independent power (that is, other than pursuant to a law passed by Congress). But judges only exercise the judicial power, and the judicial power does not contain much independent power to suppress speech. I think it likely that courts can impose restrictions (e.g., “gag orders”) to protect the judicial process in their courts as a historical aspect of the judicial power, but not much beyond this. And that would likely be true even if the First Amendment did apply to them – the historical practice would indicate an exception to the apparently categorical rule. So I don’t think this makes a great deal of difference.
(2) As to the federal executive branch, the same analysis would apply, but it is potentially more significant. Mostly, when the First Amendment is applied to the President, the President is acting under the authority of law. That law cannot authorize the President to abridge the freedom of speech, so if a President purporting to act under authority of law abridges speech that action is ultra vires and unconstitutional – not because the First Amendment applies to the President, but because the First Amendment applies to the authorizing law, which amounts to the same thing.
However, if the President is acting under independent authority, again I agree that textually the Amendment doesn’t apply. Critically, though, the President’s authority to act independently in a lawmaking capacity is sharply constrained by the Constitution’s separation of powers. By the direction of the vesting clauses, "all" legislative power of the federal government is vested in Congress; thus the President cannot exercise lawmaking power. (See my thoughts here on applying this principle to foreign affairs.) I think this is why the First Amendment is drafted the way it is. The framers understood that (with narrow exceptions) abridgements of the First Amendment rights would come from Congress, because only Congress has lawmaking authority.
There may be a few exceptions. The President’s commander in chief power likely includes power to set rules for the military (at least until Congress acts), so the President can restrict speech in the military. The President’s executive power likely includes power to set rules for executive branch personnel (at least until Congress acts), so the President would be less restricted there. (This is one place that the textual analysis might depart somewhat from modern law, which partly restricts the President’s authority over speech of executive personnel.)
More generally, in First Amendment challenges to executive action, it should be asked whether the President is claiming authority under statutory law or directly from the Constitution. The textual analysis would say the First Amendment only applies in the former case. But it would also say that, in the latter case, the executive action is often doubtful on separation of powers/vesting clause grounds.
It’s true that this point is not made in the Court’s doctrine, and perhaps that would sometimes matter. For example, Murthy v. Missouri, decided yesterday, involved a First Amendment challenge to executive action. The Court rejected the challenge on standing grounds, but if it had reached the merits, the text of the First Amendment indicates that it should have asked (1) whether the President was acting pursuant to delegated power (in which case the First Amendment would apply) or if the President claimed to be acting under independent power (in which case there would be a question about the source of that power). I’m not sure to what extent this might change the outcome on the merits.
(c) Finally, some commentary on this point invokes the treaty power; on this analysis, can treaties restrict speech (by, for example, prohibiting criticism of foreign governments)? One might say no, because treaties require Senate consent, and the Senate, as part of Congress, cannot make laws restricting the freedom of speech. But making treaties, in itself, does not require the action of “Congress” – only the Senate, which is not Congress. So perhaps the First Amendment does not limit treaties.
That might be a sharp and worrisome departure from modern law. But there is perhaps less to it than might appear. The framers likely assumed that treaties proscribing particular individual conduct would be addressed to Congress for implementation. That is, treaties would say – as modern treaties in fact typically do – something to the effect of: “The treaty parties agree to prohibit” a specified conduct. Treaties phrased this way would call for Congress to enact a specific prohibition (they would be, in modern terms, “non-self-executing” – see my discussion here.) And of course, the First Amendment would restrict Congress in enacting such a prohibition.
In sum, the First Amendment’s specific application only to “Congress” raises interesting textual questions, but in the end I think they mostly resolve in favor of current outcomes. Of the Court’s many departures from the text, this one is much less important than it at first appears.
Posted at 6:24 AM