United States v. Stevens, 599 U.S. 460, 470 (2010); see also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he First [Amendment] . . . is the very product of an interest balancing by the people.”).

1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 1:11 (2016).

See, e.g., Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent 15-30 (2016); Leonard W. Levy, Emergence of a Free Press 170-71 (1985); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 919 & n.39 (1993); Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275, 1289, 1292 (1998); Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. Rev. 177, 180, 204 (1984); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 Hastings L.J. 639, 640-41 (1975); Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Geo. L.J. 1057, 1079-83 (2009). The term “freedom of expression” was rarely used in the eighteenth century but is used here for simplicity. But see Answer of the Senate of Pennsylvania to Governor Mifflin’s Speech, Dunlap & Claypoole’s Am. Daily Advertiser (Philadelphia), Dec. 14, 1795, at 3 (“The communication of sentiment, with temper and decency, is a right which never should be impaired: Freedom of expression will only be abused by those who wish to conceal, or pervert, the truth.”).

See, e.g., Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 168 (2012); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 46-47 (1985); Richard A. Primus, The American Language of Rights 73 & n.44 (1999); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 292 (1996).

See, e.g., George Anastaplo, Reflections on Freedom of Speech and the First Amendment 66 (2007); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 34-37 (1960); Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 815 (1999).

David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455, 487 (1983); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century, 34 Wm. Mitchell L. Rev. 773, 793 (2008) (agreeing with Anderson); Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 17 (2011) (same).

Erwin Chemerinsky, Constitutional Law 1198 (4th ed. 2013); see also, e.g., Akhil Reed Amar, The Constitution Today: Timeless Lessons for the Issues of Our Era 7 (2016) (“The Sedition Act of 1798 was clearly unconstitutional . . . .”).

Scholars who emphasize the indeterminacy of original meaning typically highlight the clashing views over sedition. See, e.g., Smolla, supra note 2, at § 1:11. By contrast, those who take sides often argue that the opposing view was not prevalent until the late 1790s. Compare Levy, supra note 3, at xii (“[T]he theory of freedom of political expression remained quite narrow until 1798 . . . .”), with Anderson, supra note 6, at 521 (“The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers’ views.”). For other key works, see Bird, supra note 3; Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010); Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 Sup. Ct. Rev. 109; David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429 (1983); Hamburger, supra note 3; Philip B. Kurland, The Original Understanding of the Freedom of the Press Provision of the First Amendment, 55 Miss. L.J. 225 (1985); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Colum. L. Rev. 91 (1984); David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795 (1985); and Stephen A. Smith, The Origins of the Free Speech Clause, 29 Free Speech Y.B. 48 (1991).

Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches,” in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). For others who emphasize a lack of consensus at the Founding, see, for example, David L. Lange & H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment 210 (2009); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel 70 (1986); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 837; Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 22 (1971); Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism, 82 Fordham L. Rev. 721, 748-54 (2013); and Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism, 23 Yale J.L. & Human. 295, 326-34 (2011) [hereinafter Cornell, The People’s Constitution vs. The Lawyer’s Constitution].

Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation, 84 Fordham L. Rev. 935, 942 (2015).

4 William Blackstone, Commentaries *152.

See Wendell Bird, Liberties of Press and Speech: ‘Evidetestnce Does Not Exist To Contradict the . . . Blackstonian Sense’ in Late 18th Century England?, 36 Oxford J. Legal Stud. 1 (2016).

The intellectual foundation of this language was social-contract theory. See Jud Campbell, Republicanism and Natural Rights at the Founding, 32 Const. Comment. 85, 87 (2017) (reviewing Randy E. Barnett, Our Republican Constitution: Securing The Liberty And Sovereignty of We the People (2016)). Founding Era discussions of social-contract theory and natural rights were common. See, e.g., John Adams, A Defence of the Constitutions of Government of the United States of America 6 (Philadelphia, Hall & Sellers 1787); 1 William Blackstone, Commentaries *47; Alexander Hamilton, The Farmer Refuted (1775), reprinted in 1 The Papers of Alexander Hamilton 81, 88 (Harold C. Syrett ed., 1961); James Madison, Essay on Sovereignty (1835), in 9 The Writings of James Madison 568, 570 (Gaillard Hunt ed., 1910); Gouverneur Morris, Political Enquiries (1776), in To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris 5, 9 (J. Jackson Barlow ed., 2012); 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 16 (Windham, John Byrne 1795); Richard Wooddeson, Elements of Jurisprudence: Treated of in the Preliminary Part of a Course of Lectures on the Laws of England 22 (London, T. Payne & Son 1783).

See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress of the United States of America 811, 822 (Charlene Bangs Bickford et al. eds., 1992) [hereinafter Documentary History of the First Federal Congress]; Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson 131, 132 (Julian P. Boyd ed., 1971); An Old Whig IV, Indep. Gazetteer (Philadelphia), Oct. 27, 1787, reprinted in 13 The Documentary History of the Ratification of the Constitution 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Documentary History of the Ratification]. The Founders sometimes referred to positive rights as adventitious rights or social rights. See The Impartial Examiner 1, Va. Indep. Chron. (Richmond), Feb. 20, 1788, reprinted in 8 Documentary History of the Ratification, supra, at 387, 390 (1988); [George Logan], Letters Addressed to the Yeomanry of the United States . . . 39 (Philadelphia, Eleazer Oswald 1791); Philanthropos, Newport Herald, June 17, 1790, reprinted in 26 Documentary History of the Ratification, supra, at 1051, 1051 (John P. Kaminski et al. eds., 2013).

Common Sense [Thomas Paine], Candid and Critical Remarks on Letter 1, Signed Ludlow, Pa. J. & Wkly. Advertiser, June 4, 1777, at 1; see also 1 Thomas Rutherford, Institutes of Natural Law 36 (Cambridge, J. Bentham 1754) (“Another division of our rights is into natural and adventitious. Those are called natural rights, which belong to a man . . . originally, without the intervention of any human act.”); Hamburger, supra note 3, at 919 (“[Americans] understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government.”).

See Campbell, supra note 13, at 92-98.

See id. at 96-98.

See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 10 (1969); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 581 (2006).

See infra Section II.D.

See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 296-97, 306. As Cornell notes, “the conflict over legal interpretation . . . exist[ed] along a spectrum in which elite culture shaded gradually into a more popular plebian culture.” Id. at 309.

Id. at 306 (quoting [Benjamin Austin], Honestus, Observations on the Pernicious Practice of the Law 20 (Boston, Adams & Nourse 1786)).

Scholars have widely noted how methodological disagreements among the Founders can complicate efforts to recover original meanings. See, e.g., id. at 296-98; Larry Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol’y 907, 912-13 (2008); Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 555-56, 561, 571-73 (2003).

See, e.g., Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 13 (Vergennes, Samuel Chipman 1799) (arguing that sedition leads to the “greatest of all plagues, the corruption of public opinion”).

See, e.g., John Thomson, An Enquiry, Concerning the Liberty, and Licentiousness of the Press, and the Uncountroulable Nature of the Human Mind 83 (New York, Johnson & Stryker 1801) (describing the “laws of society”—akin to the proverbial marketplace of ideas—as “fully sufficient to the purpose” of handling malicious falsehoods); Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 170 (New York, George Forman 1800) (“Public prosecutions for libels are . . . more dangerous to Society than the misrepresentation which they are intended to punish.”). This view developed among English radicals, whose writings circulated in America. See, e.g., Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 25 (London, Barlow & Babcock 1784) (arguing that the “evils” of granting civil authority to regulate speech outweigh the benefits); James Burgh, Of the Liberty of Speech and Writing on Political Subjects, in 3 Political Disquisitions 246, 254 (London, Edward and Charles Dilly 1775) (“For if you punish the slanderer, you deter the fair inquirer.”).

Readers need not accept a general distinction between meanings and expected applications in order to recognize my point, which is simply that individuals could simultaneously agree that speaking, writing, and printing were natural rights regulable in the public interest and disagree about whether particular governmental restrictions of speaking and printing promoted the public good. For arguments in favor of a general distinction between meanings and expected applications, see Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 559 (2006); and Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 383 (2013).

See infra Section II.A.

See infra Section II.B.

See infra Section II.C.

See infra Section II.D.

See, e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 128 (1993) (Kennedy, J., concurring).

United States v. Stevens, 559 U.S. 460, 468-71 (2010).

Id. at 470; see also United States v. Alvarez, 132 S. Ct. 2537, 2544, 2547 (2012) (plurality opinion) (summarizing the same idea, with application to false statements).

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

Compare Zechariah Chafee Jr., Freedom of Speech 17-24 (1920) (insisting that the First Amendment was designed to bar seditious libel prosecutions), with Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 2-3 (1960) (arguing that historical evidence “points strongly in support” of the conclusion that the First Amendment “left the law of seditious libel in force”), and Rabban, supra note 8, at 796 (arguing that Levy’s focus on seditious libel led him to overlook genuine and growing support among the Founders for a greater degree of expressive freedom).

See, e.g., Vikram Amar, Introduction to The First Amendment Freedom of Speech: Its Constitutional History and the Contemporary Debate 13, 13 (Vikram David Amar ed., 2009); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2180-81 (2015); Marc Lendler, “Equally Proper at All Times and at All Times Necessary”: Civility, Bad Tendency, and the Sedition Act, 24 J. Early Republic 419, 426 n.28 (2004).

See Bird, supra note 3, at 77; Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 47-48 (1991); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539, 1556, 1567-71 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106, 1111-14 (1994); Mayton, supra note 8, at 97, 119.

See supra note 4 (collecting sources).

See supra notes 2 and 9 and accompanying text.

See Hamburger, supra note 3, at 908-11.

Hamburger’s only engagement with this issue is an unilluminating footnote:

[N]atural law was not necessarily the only indication of what was an abridgement of the constitutional right, because a constitution might enumerate a natural right but qualify or supplement its protection of the right. The First Amendment right of free speech and press, for example, was understood to preclude publication censorship . . . . [T]his preference for postpublication restraints was highly compatible with the notion of a physical natural right, but it was not claimed to be derived from natural rights analysis.

Id. at 954 n.130. In a similar vein, David Bogen shows that many Founders viewed the freedom of speech as a natural right, but he offers little account of what that meant. See Bogen, supra note 8, at 453 (“[N]atural rights theory . . . failed to mark the line between protected liberty and punishable license.”). Like Hamburger, Bogen does not explore the place of customary positive rights within a natural-rights framework. See id. at 450-53.

See, e.g., Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People, 16 S. Ill. U. L.J. 267, 278-79 (1992); see also Levy, supra note 3, at 225 (“The Framers believed that . . . no provision of the Constitution authorized the government to act on any natural rights.”); cf. Heyman, supra note 3, at 1282 (classifying freedom of thought as a right “not subject to legislative regulation for the public good . . . [but] nevertheless limited by the rights of others”). For others who interpret the First Amendment as a categorical ban on federal regulations of expression, see supra note 36 (collecting sources).

See infra notes 114-118 and accompanying text.

See infra notes 290-294 and accompanying text.

See, e.g., Patterson v. Colorado, 205 U.S. 454, 462 (1907) (providing that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare”). See generally Crowley v. Christensen, 137 U.S. 86, 89 (1890) (“[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”); Victoria F. Nourse, A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Calif. L. Rev. 751, 752 (2009) (“Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights.”).

See, e.g., N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette, Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (“The liberty of uttering our sentiments and giving publicity of our thoughts, might be supposed an evil were it not well guarded against by wholesome laws, which prevents any one man from injuring another.”).

See infra notes 188-189 and accompanying text.

Because of the evidence available, this Article relies on the views of Founding Era elites. References to the Founders, Americans, and so forth, should be read accordingly. Of course, this binary distinction between “elites” and “non-elites” is stylized. See Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29 Const. Comment. 383, 388 (2014).

Although “large numbers of Americans spoke about government, liberty and constitutional law on the basis of some shared assumptions about natural rights and the state of nature,” Hamburger, supra note 3, at 915, these speakers may not be representative of the entire Founding generation, see id. at 916.

Perhaps those unfamiliar with natural-rights reasoning would have understood the term as the practical freedom that speakers and publishers exercised at the time of the First Amendment’s ratification—a meaning that would prevent the government from instituting any new restrictions of speech or the press. Without evidence, one scholar posited this idea. See Leonard W. Levy, The Legacy Reexamined, 37 Stan. L. Rev. 767, 769 (1985); cf. James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of Pennsylvania, Claypoole’s Am. Daily Advertiser (Philadelphia), Apr. 11, 1799, reprinted in 3 The Documentary History of the Supreme Court of the United States, 1789-1800, at 332, 347 (Maeva Marcus et al. eds., 1990) [hereinafter Iredell] (“What might be deemed the Freedom of the Press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy.”). Or perhaps Americans unfamiliar with social-contract theory would have interpreted the First Amendment in light of the Speech and Debate Clause. Yet again, however, historical evidence does not support that view. See infra notes 275-281 and accompanying text.

See infra Part IV. For this reason, this Article cannot refute interpretive arguments based on other methodologies.

Readers may refer to any Supreme Court opinion that mentions history. To be sure, Justice Scalia once asserted that the Constitution’s original meaning “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. 570, 577 (2008). But the Court never demonstrates that elite sources reflect how “ordinary citizens” would have understood the Constitution’s words and phrases, and it regularly relies on highly technical legal sources that were surely unfamiliar to most ordinary citizens. Cf. Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 970 (2009) (offering an originalist perspective on the “public meaning” of terms of art). Of course, limiting the relevant public to voters might narrow the linguistic gap between the public and elites, see Mark Tushnet, Heller and the New Originalism, 69 Ohio St. L.J. 609, 611-12 (2008), but that limitation is unwarranted if the relevant public includes non-voting members of the body politic.

See, e.g., Larry D. Kramer, Madison’s Audience, 112 Harv. L. Rev. 611, 676 (1999); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990).

See, e.g., Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1767 nn. 6-8, 1768 (2004) (listing several theories).

See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 199 (1996) (“The First Amendment . . . cannot be applied to concrete cases except by assigning some overall point or purpose to the amendment’s abstract guarantee of ‘freedom of speech or of the press.’”).

See Meiklejohn, supra note 5; Cass R. Sunstein, Democracy and the Problem of Free Speech (1993); Ashutosh Bhagwat, The Democratic First Amendment, 110 Nw. U. L. Rev. 1097 (2016).

See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection, 97 Va. L. Rev. 595 (2011).

See Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593 (1982) (describing the “one true value” of free speech as “individual self-realization”).

In particular, many scholars have noted that preserving republican government was the primary objective for many proponents of speech and press freedoms. See Bhagwat, supra note 55, at 1102 (“[A] broad consensus has emerged over the past half-century regarding the fundamental reason why the Constitution protects free speech: to advance democratic self-governance.”). That account of the Founders’ motives is certainly true. But one goal of this Article is to show that the meanings of speech and press freedoms, as concepts, were not defined by or limited to concerns about preserving republican government.

Gordon S. Wood, The Creative Imagination of Bernard Bailyn, in The Transformation of Early American History: Society, Authority, and Ideology 16, 46 (James A. Henretta et al. eds., 1991).

See G. Edward White, Intellectual History and Constitutional Decision Making, 101 Va. L. Rev. 1165, 1176-77 (2015). American judges, for instance, unanimously upheld sedition prosecutions. See Blumberg, supra note 8, at 145. For twentieth-century developments, see, for example, Lakier, supra note 35; and G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 Mich. L. Rev. 299 (1996).

See infra notes 290-294 and accompanying text.

See Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1777 (2015); John O. McGinnis, The Duty of Clarity, 84 Geo. Wash. L. Rev. 843, 843 (2016).

Plenty of originalists value precedent. See, e.g., William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2358-59 (2015); see also infra note 307 (collecting sources).

491 U.S. 397 (1989).

530 U.S. 640 (2000).

558 U.S. 310 (2010).

562 U.S. 443 (2011).

See infra notes 188-189 and accompanying text.

See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 132-49, 255-71 (rev. ed. 2014). This view is ahistorical, see Campbell, supra note 13, at 105-08, but that does not make it “wrong.” Modern constitutional practice ultimately has to be based on normative grounds (or some other assessment of what counts as our law), which may call for only a limited form of historical inquiry. See Whittington, supra note 25, at 400-04 (discussing the relationship between originalism and judicial review).

See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 196-202 (1988).

For different formulations of this two-step process of constitutional adjudication, see, for example, Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1 (2004); Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54 (1997); and Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison 193, 194 (Charles F. Hobson & Robert A. Rutland eds., 1979).

Thomas Hayter, An Essay on the Liberty of the Press Chiefly as it Respects Personal Slander 18 (London, J. Raymond 1755); see also Freeman’s J.: or, The North-Am. Intelligencer (Philadelphia), Nov. 16, 1785, at 3 (reprinting this passage); Pa. Packet (Philadelphia), Nov. 12, 1785, at 2 (same); Va. Gazette (Williamsburg), May 18, 1776, at 1 (same). For other sources that identify speaking, writing, and publishing as retained natural rights, see, for example, 8 Annals of Cong. 2,148 (1798) (statement of Rep. Harrison Gray Otis) (mentioning the “liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party”); 4 Annals of Cong. 918 (1794) (statement of Rep. William Giles) (referring to the “the inalienable privilege of thinking, of speaking, of writing, and of printing”); Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress, supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995) (describing the freedom of speech as an “unalienable right”); id. at 340 (statement of Rep. John Vining) (“[N]o law can divest” individuals of the right “of speaking and writing their minds . . . .”); Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H. Cogan ed., 1997) [hereinafter Complete Bill of Rights] (“Speaking, writing and publishing” are among “certain natural rights which are retained”); Resolution of the Virginia House of Delegates, Va. Gazette, & Gen. Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural right of speaking and writing freely”); 2 Joseph Priestley, Lectures on History, and General Policy 47 (Philadelphia, P. Byrne 1803) (“[I]n a state of society, every man retain[s] his natural powers of speaking, writing, and publishing his sentiments on all subjects . . . .”); Freeborn American, Bos. Gazette & Country J., Mar. 9, 1767, reprinted in Freedom of the Press from Zenger to Jefferson 95, 95 (Leonard W. Levy ed., 1996) [hereinafter Freedom of the Press] (“Man, in a state of nature, has undoubtedly a right to speak and act without controul.”); Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958) (“[R]ights which it is useless to surrender to the government” include “the rights of thinking, and publishing our thoughts by speaking or writing . . . .”); and Letter from Thomas Paine to Thomas Jefferson (Mar. 1788), in 13 The Papers of Thomas Jefferson, supra note 14, at 4, 5 (1956) (“[N]atural rights” include “the rights of thinking, speaking, forming and giving opinions . . . .”). The understanding of speaking, writing, and publishing as natural rights was articulated in seminal discussions about speech and press freedoms during the Zenger controversy. See Argument of Andrew Hamilton, in Freedom of the Press, supra, at 43, 54 (“I beg Leave to insist, That the Right of complaining or remonstrating is natural; And the Restraint upon this natural Right is the Law only, and that those Restraints can only extend to what is false . . . .”); N.Y. Weekly J. (Nov. 1733), reprinted in Freedom of the Press, supra, at 30 (“No Nation Antient or Modern ever lost the Liberty of freely Speaking, Writing, or Publishing their Sentiments, but forthwith lost their Liberty in general and became Slaves.”).

For instance, one scholar insists that confining regulations of expression to lawful restraints would have been “nothing but a tautology.” Bird, supra note 3, at 11. But this reflects an anachronistic view of freedom. Confining any restraints of natural liberty to known laws passed with the consent of the people and in pursuit of the public good was, according to many eighteenth-century thinkers, the very essence of freedom. See John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty 38-39 (2005); see, e.g., The Democratic Society of the City of New-York, to Their Brethren the Citizens of the United States (Jan. 14, 1795), in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 192, 195 (Philip S. Foner ed., 1976) [hereinafter Democratic-Republican Societies] (“Civil Liberty is the right of the citizen freely to dispose of his actions subject only to the restraint of the laws . . . . Restraint commences . . . where the liberty of one individual is incompatible with the safety, or happiness of another—it is dictated by justice, and constitutes law.”).

See, e.g., A Citizen of New-York [John Jay], An Address to the People of the State of New York (Apr. 15, 1788), in 20 Documentary History of the Ratification, supra note 14, at 922, 933 (John P. Kaminski et al. eds., 2004).

See, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 24, 1788) (statement of James Iredell), reprinted in 4 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 10-11 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Debates in the Several State Conventions]; The Federalist No. 84 (Alexander Hamilton); Remarker, Indep. Chron., Dec. 27, 1787, reprinted in 5 Documentary History of the Ratification, supra note 14, at 527, 529-30 (John P. Kaminski et al. eds., 1998); see also Gordon S. Wood, The History of Rights in Early America, in The Nature of Rights at the American Founding and Beyond 233, 236-42 (Barry Alan Shain ed., 2007) [hereinafter The Nature of Rights] (describing the development of this view in England and America).

See Herbert J. Storing, What the Anti-Federalists Were For 69-70 (Murray Dry ed., 1981); Jack N. Rakove, The Dilemma of Declaring Rights, in The Nature of Rights, supra note 76, at 181, 193-94.

Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 72, at 350, 351 (Robert A. Rutland et al. eds., 1973).

Letter from Samuel Chase to Richard Henry Lee (May 16, 1789), in 15 Documentary History of the First Federal Congress, supra note 14, at 565, 565 (Charles Bangs Bickford et al. eds., 2004); see also The Massachusetts Convention (Jan. 23, 1788) (statement of Samuel Thompson), in 6 Documentary History of the Ratification, supra note 14, at 1312, 1317 (John P. Kaminski et al. eds., 2000) (“[W]here is the bill of rights which shall check the power of this Congress, which shall say, thus far shall ye come and no farther.”).

Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 659 (1958).

See Campbell, supra note 13, at 107-08; see also infra notes 290-294 and accompanying text.

Although not explored in this Article, other parts of the First Amendment also protected fundamental positive rights that furthered the natural right of expressive freedom. The ancient right to petition, for instance, was a procedural device through which individuals and groups could seek redress of grievances with accompanying “protect[ion] from formal political retaliation by governmental authorities.” Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition, 66 Fordham L. Rev. 2153, 2202 (1998). The right of peaceable assembly similarly barred prosecutions for peaceable public meetings, although its broader implications were contested. See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech, 84 Fordham L. Rev. 915, 928-30 (2015); see also John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 21-29 (2012) (discussing the history of the freedom of assembly in the Founding Era).

See Campbell, supra note 13, at 87.

Id. at 87-88.

See, e.g., Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 74-75 (1974); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 88-90 (1986); James Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of James Wilson 1053, 1055-56 (Kermit L. Hall & Mark David Hall eds., 2007).

When Federalists came under fire for not enumerating rights, however, they mercilessly mocked their Anti-Federalist opponents by pointing out the limitless breadth of natural liberty. See Philip A. Hamburger, Trivial Rights, 70 Notre Dame L. Rev. 1, 20-30 (1994).

See infra notes 275-281 and accompanying text.

Anderson, supra note 6, at 487 (citing Levy, supra note 34, at 5-6); accord Jay, supra note 6, at 793; Rosenthal, supra note 6, at 17.

See supra notes 14-15, 83-86 and accompanying text.

See supra note 73 and infra notes 93-98 (collecting sources).

Pa. Const. of 1776, art. 12; Vt. Const. of 1777, ch. 1, art. 14.

Proposal by Sherman to House Committee of Eleven, July 21-28, 1789, in Complete Bill of Rights, supra note 73, at 83.

Freeborn American, supra note 73, at 95.

Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the Other States in Answer to their Resolutions 44 (Philadelphia, Zachariah Poulson Jr. 1800).

John Taylor, An Inquiry into the Principles and Policy of the Government of the United States 473 (Fredericksburg, Green & Cady 1814).

Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 21-22 (London, T. Cadell 1784).

Eteocles, An Essay on the Freedom of Speech, Md. Gazette (Annapolis), Nov. 24, 1780, at 180.

Addison, supra note 23, at 4.

See, e.g., James Alexander, Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737, reprinted in Freedom of the Press, supra note 73, at 62, 66 (referencing “freedom of speech and liberty of the press” as “natural rights”).

Hayter, supra note 73, at 18; see also Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written, or printed, or by pictures or other signs.”); William Bollan, The Freedom of Speech and Writing upon Public Affairs, Considered 3-4 (London, S. Baker 1766) (discussing “speech and writing, or printing, a species of writing invented for the more expeditious multiplication of copies, both being modes of presenting to the eye what speech conveys to the ear”).

See, e.g., 8 Annals of Cong. 2147-48 (1798) (statement of Rep. Otis) (distinguishing “the liberty of writing, publishing, and speaking” from “the freedom of the press”).

See 12 The Oxford English Dictionary 411 (J.A. Simpson & E.S.C. Weiner eds., 2d. ed. 1989); see also James Sullivan, Dissertation upon the Constitutional Freedom of the Press in the United States 10 (Boston, Joseph Nancrede 1801) (“The conventions of the states, and the Congress of the United States, use the word press as descriptive of the free communication of ideas and sentiments, by the art of printing.”). See generally Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012).

See, e.g., 8 Annals of Cong. 2167-68 (1798) (statement of Rep. Harper) (decrying the “licentious abuse” of the liberty of the press, thus alluding to the natural-rights distinction between liberty and license—i.e., the abuse of liberty); Nathaniel Chipman, Sketches of the Principles of Government 152 (Rutland, Vt., J. Lyon 1793) (“Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.”).

The Craftsman No. 121, in 3 The Craftsman 274, 274 (Caleb D’Anvers ed., London, R. Francklin 1731) (emphasis omitted); see American Intelligence, Indep. Gazetteer (Philadelphia), Jan. 5, 1789, at 3 (“Freedom of speech, which is nothing more than the freedom of press, is the great bulwark of liberty . . . .”). Other authors treated the freedom of speech as synonymous with “the liberty of individuals to communicate their thoughts to the public.” Of the Liberty of the Press and Elections, London Evening Post, Oct. 29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518-19 (1754). As this passage illustrates, “liberty” and “freedom” were typically used interchangeably.

See Hamburger, supra note 3, at 922-30.

See id. at 930.

See David Hume, Of the Original Contract, in 2 Essays and Treatises on Several Subjects 287, 289-91 (London, A. Millar 1760); see also Rutherford, supra note 15, at 10 (“It is therefore the law of [man’s] nature, that he should live in society with others of his own species” and “should join with them in a common interest . . . as to labour with them for a general good.”).

Chipman, supra note 103, at 75.

Wilson, supra note 85, at 1056.

Id. at 1055-56 (emphasis added).

See Campbell, supra note 13, at 88; see, e.g., John Locke, Second Treatise of Government §§ 96-97 (1690), reprinted in Two Treatises of Government and a Letter Concerning Toleration 142 (Ian Shapiro ed., 2003); Theophilus Parsons, Essex Result, in Memoir of Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). Although typically cast in historical terms, the social contract was a theoretical idea used to frame the relationship between individuals and their government. See Campbell, supra note 13, at 87 n.10, 89 n.19.

Mass. Const. of 1780, pmbl.

See, e.g., Adams, supra note 13, at 6; 1 William Blackstone, Commentaries *52; Madison, supra note 13, at 570. In English and colonial thought, this agreement was often described as an “original contract” between the people and the monarch. See Reid, supra note 85, at 132-34. Founding Era writers sometimes merged the social contract and constitution. See Philip Hamburger, Law and Judicial Duty 98-99, 294 (2008); see, e.g., Sullivan, supra note 102, at 11 (“In the social compacts, which we denominate constitutions . . . .”). This conflation was common in the United States after independence, see Thad W. Tate, The Social Contract in America, 1774-1787: Revolutionary Theory as a Conservative Instrument, 22 Wm. & Mary Q. 375, 376 (1965), likely because the notion of an “original contract” between the people and a monarch became obsolete. But American constitutional theorists maintained the distinction between a social contract and a constitution. See, e.g., Adams, supra note 13, at 6; Madison, supra note 13, at 570; see also 3 John Phillip Reid, Constitutional History of the American Revolution 114 (1991) (“American Whigs, in contrast to later historians, seldom compound[ed] or confuse[d] the two contracts.”); Reid, supra note 85, at 133-34 (noting eighteenth-century political writers’ distinctions between the social contract and the original contract).

See Campbell, supra note 13, at 92-94; see, e.g., Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty 12-13 (2d ed., London, J. Johnson 1771) (“It must necessarily be understood, therefore, whether it be expressed or not, that all people live in society for their mutual advantage; so that the good and happiness of the members, that is the majority of the members of any state, is the great standard by which every thing relating to that state must finally be determined.”); John Witherspoon, Lectures on Moral Philosophy, in The Selected Writings of John Witherspoon 191 (Thomas P. Miller ed., 1990) (“[I]t is certain that the public good has always been the real aim of the people in general in forming and entering into any society.”). When Jefferson recommended five works on “the organization of society into civil government . . . according to the rights of nature,” Letter from Thomas Jefferson to John Norvell (June 11, 1807), in 5 The Writings of Thomas Jefferson 90, 90-91 (H. A. Washington ed., 1853), all of his recommendations prioritized the public good. See Chipman, supra note 103, at 174-75 (noting that retained natural rights “must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws”); John Locke, Second Treatise of Government § 130 (1690), reprinted in John Locke, supra note 111, at 156 (noting that individuals surrender “as much . . . natural Liberty . . . as the Good, Prosperity, and Safety of the Society shall require”); The Federalist No. 43, at 297 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he safety and happiness of society are the objects at which all political institutions aim.”); Priestley, supra, at 57 (“[A]ll claims of individuals inconsistent with the public good are absolutely null and void.”); Algernon Sidney, Discourses Concerning Government 255 (2d ed., London, J. Darby 1704) (stating that “the publick Good . . . is the end of all . . . Government”) (emphasis added).

The Federalist No. 43, supra note 114, at 297 (James Madison); see also supra note 114 and accompanying text (discussing the public good).

See, e.g., Alexander Hamilton, Opinion on the Constitutionality of the Bank, in 8 The Papers of Alexander Hamilton, supra note 13, at 91 (1965).

See, e.g., The Federalist No. 37, supra note 114, at 239 (James Madison) (noting “the necessity of sacrificing private opinions and partial interests to the public good”); James Wilson, Of Citizens and Aliens, in 2 Collected Works of James Wilson, supra note 85, at 1038, 1043 (“By the will and by the interest of the community, every private will and every private interest must be bound and overruled.”); see also Campbell, supra note 13, at 93 n.41 (collecting other sources).

Campbell, supra note 13, at 94 (emphasis removed).

1 William Blackstone, Commentaries *125 (emphasis added); see also Hamburger, supra note 3, at 931 n.70 (collecting sources).

1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 15 (New Haven, S. Converse 1822); see also New York Ratification Convention Debates (June 25, 1788) (statement of Melancton Smith), in 22 Documentary History of the Ratification, supra note 14, at 1877, 1879 (John P. Kaminski et al. eds., 2008) (“What is government itself, but a restraint upon the natural rights of the people?”).

Parsons, supra note 111, at 366 (emphasis added).

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton) (emphasis added); see also, e.g., Massachusetts Ratification Convention Debates (Jan. 23, 1788) (statement of Theophilus Parsons), in 6 Documentary History of the Ratification, supra note 14, at 1324 (John P. Kaminski et al. eds., 2000) (“[T]he people divest themselves of nothing.”).

This confusion is most apparent in the view that natural rights were categorical exclusions of regulatory authority. See sources cited supra note 41. For an illuminating effort to trace and unravel much of the confusion, see Dan Edelstein, Early-Modern Rights Regimes: A Genealogy of Revolutionary Rights, 3 Critical Analysis L. 221 (2016).

Chipman, supra note 103, at 117.

Letter from Thomas Jefferson to Francis W. Gilmer (June 7, 1816), in 15 Writings of Thomas Jefferson 23, 24 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).

Id.

For a discussion of how individuals could “retain” their natural rights in a social contract but consent to certain restrictions of those liberties under law, see Campbell, supra note 13, at 96-98.

Chipman, supra note 103, at 74.

Id. at 175 (emphasis added); see also Supplement to Max Farrand’s The Records of the Federal Convention of 1787, at 183 (James H. Hutson ed., 1987) (“[W]e are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society . . . .” (quoting Nathaniel Chipman)).

Chipman, supra note 103, at 175 (emphasis added).

James Wilson, On the History of Property, in 1 Collected Works of James Wilson, supra note 85, at 387.

Wilson, supra note 85, at 1056 (emphasis added).

See Addison, supra note 94, at 46 (“[T]he liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States.”); Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of the Residence Bill (July 15, 1790), in 17 The Papers of Thomas Jefferson, supra note 14, at 194, 195-97 (1965) (using the phrase “abridged or modified,” and treating “modified” as synonymous with “regulated in [its] exercise by law”). In the late 1790s, some Republicans elided the inherent limits on expressive freedom imposed by natural law and social obligation, thus leading to the view that any regulation of expression was an abridgment of the freedom of speech. See St. George Tucker, View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 91, 386 (1999).

See Campbell, supra note 13, at 92-98.

1 William Blackstone, Commentaries *125.

See Campbell, supra note 13, at 92-98.

See infra notes 290-294 and accompanying text.

Hayter, supra note 73, at 8, 18.

Freeborn American, supra note 73, at 95; see Tenax, To the People of Pennsylvania, The Freeman’s Journal: or, the North-American Intelligencer, Oct. 30, 1782, at 1; William Livingston, Of the Use, Abuse, and Liberty of the Press, The Indep. Reflector or Wkly. Essays on Sundry Important Subjects, Aug. 30, 1753, reprinted in Freedom of the Press, supra note 73, at 75, 79.

See, e.g., Jacob Rush, The Nature of an Oath Stated and Explained, in Charges, and Extracts of Charges, on Moral and Religious Subjects 33, 44 (Philadelphia, 1804) (defending bans on profane swearing because it “lessen[s] that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree, injurious to society”). Others recognized that disrupting the “peace and order of society” was grounds for restricting publications, even without directly violating the rights of others. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788); cf. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson, supra note 14, at 364, 367 (1958) (endorsing restrictions of speech “affecting the peace of the confederacy with foreign nations”). Occasionally, writers worried that a general declaration of press freedom might be construed to “extend to the justification of every possible publication.” America [Noah Webster], To the Dissenting Members of the Late Convention of Pennsylvania, N.Y. Daily Advertiser, Dec. 31, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 484, 487 (John P. Kaminski et al. eds., 2003); see also Hamburger, supra note 3, at 936 n.83; cf. N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette, Jan. 27, 1790, at 2 (statement of Rep. Samuel Jones) (“[H]e hoped that something might be done, if it were possible, to discriminate between the liberty and the licentiousness of the press. The amendment now proposed would be nugatory, as something similar thereto was already included in the constitution. Unless it went a little farther, it appeared to him as if this amendment would not leave it in the power of the legislature to make any law even to punish the injuries that might be done to individuals by the indiscriminate publication of libels.”). But these sources do not indicate that existing legal privileges actually extended that far or that the Founders wanted to extend them that far.

See Heather S. Nathans, Early American Theatre from the Revolution to Thomas Jefferson: Into the Hands of the People 37-70 (2003).

See, e.g., Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring); Bird, supra note 3, at 27, 112, 461.

Priestley, supra note 114, at 57. Priestley emphasized that this inquiry depended on empirical assessments, not purely abstract reasoning. Id. at 58.

Addison, supra note 23, at 10.

See, e.g., 10 Annals of Cong. 925 (1801) (statement of Rep. Samuel Dana) (“[T]hough upon general principles, truth may be said to be an antidote to falsehood, truth does not always make its appearance in time to prevent the evil intended by the evil-disposed.”).

Sullivan, supra note 102, at 21-22. Sullivan, despite being a Republican, defended the constitutionality of the Sedition Act. See id.

10 Annals of Cong. 931 (1801) (statement of Rep. John Rutledge Jr.); see, e.g., Addison, supra note 94, at 42-43.

E[lizabeth] P[riestley], On the Propriety and Expediency of Unlimited Enquiry, in Thomas Cooper, Political Essays 62, 62 (Thomas Cooper ed., Philadelphia, 2d ed. 1800). For a brief introduction to this essay, see Eugene Volokh, Elizabeth Ryland Priestley, Early American Author on Free Speech, 4 N.Y.U. J.L. & Liberty 382 (2009).

P[riestley], supra note 148, at 63.

Id. at 63-64; see also, e.g., 10 Annals of Cong. 928 (1801) (statement of Rep. Benjamin Huger) (“[S]o nice and delicate were the shades of distinction between the licentiousness of the press, and a necessary freedom of discussion, that it was upon the whole better perhaps . . . to leave the measures of Government and its Administration entirely open to investigation and animadversion, without attempting to repress the eccentricities and exuberances of public discussion by even an ideal restraint.”).

See, e.g., 10 Annals of Cong. 923 (1801) (statement of Rep. Joseph Nicholson).

To be sure, the doctrinal conclusions that Republicans reached were often categorical, but their pre-doctrinal understandings of expressive freedom usually were not. See, e.g., George Hay, An Essay on the Liberty of the Press 27-28 (Richmond, Samuel Pleasants, Jr. 1803) (concluding that publications on “matters of public concern” were immune from punishment because “the point at which freedom of enquiry ends and licentiousness begins, must remain forever unknown”). For a narrower interpretive argument that did take a categorical form, see infra Section II.B. Republicans in the late 1790s also wholly denied federal power over expression based on a novel interpretation of the First Amendment. See infra Section III.B; see also Jud Campbell, The Invention of First Amendment Federalism (Sept. 10, 2017) (unpublished draft) (on file with author).

Tenax, supra note 139, at 1, 2.

Id. Though unattributed, this language was drawn directly from Blackstone. See 4 William Blackstone, Commentaries *152 (“[T]he disseminating, or making public, of bad sentiments, destructive of the ends of society is the crime which society corrects.”).

Tenax, supra note 139, at 2; see also, e.g., Sullivan, supra note 102, at 12 (drawing the same distinction between oral and written communication).

Confusingly, the Founders sometimes referred to inalienable rights in an entirely different sense—namely, rights that could not be surrendered to the control of a monarch. See Campbell, supra note 13, at 96-98.

Chipman, supra note 103, at 174.

See N.H. Const. of 1784, pt. 1, art. IV; Parsons, supra note 111, at 366, 371; Witherspoon, supra note 114, at 405, 408; see also Jack N. Rakove, The Madisonian Theory of Rights, 31 Wm. & Mary L. Rev. 245, 260 (1990); Barry A. Shain, Rights Natural and Civil in the Declaration of Independence, in The Nature of Rights, supra note 76, at 116, 119.

See An Eastern Layman, To The Publick, Va. Gazette (Williamsburg), Aug. 14, 1779, at 1.

4 Annals of Cong. 934 (1794) (statement of Rep. James Madison); see also, e.g., Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson, supra note 14, at 545, 546 (1950) (noting that “the opinions of men are not the object of civil government, nor under its jurisdiction”); Oliver Ellsworth, A Landholder No. 7 (Dec. 17, 1787), reprinted in 14 Documentary History of the Ratification, supra note 14, at 448, 451 (John P. Kaminski et al. eds., 1983) (“Civil government has no business to meddle with the private opinions of the people.”); Resolutions Adopted Upholding Freedom of Speech, Writing, and Publishing, Dec. 17, 1794, reprinted in Democratic-Republican Societies, supra note 74, at 148, 148-49 (“[T]he freedom of opinion is a right inherent in nature, and never was intended to be surrendered to government.”).

See, e.g., Thomas Cooper, A Treatise on the Law of Libel, at ix-x, xxii-xxiii (1830); Thomson, supra note 24, at 11, 13-14, 18-19.

John Locke, An Essay Concerning Human Understanding 119 (A.D. Woozley ed., Meridian Books 1969) (1690).

Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue: In Two Treatises 185 (Knud Haakonssen ed., Liberty Fund 2004) (1726).

James Madison, Memorial and Remonstrance against Religious Assessments, reprinted in 8 The Papers of James Madison, supra note 72, at 295, 299 (Robert A. Rutland et al. eds., 1973).

The Founders thus referred interchangeably to the freedom to express “sentiments,” see, for example, Pa. Const. of 1776, ch. 1, § 12, and “thoughts and opinions,” Pa. Const. of 1790, art. IX, § 7. To the extent that statements of opinion received broader protection than statements of fact, it was because of a duty to tell the truth. See Rutherford, supra note 15, at 295 (“[U]nlawful lyes [include] . . . not only such falshoods, as will directly injure a man, or hinder his innocent benefit; but all such falshoods likewise, as are inconsistent with that tacit consent to tell him the truth.”).

See, e.g., Thomson, supra note 24, at 11-12 (“[M]en should be allowed to express those thoughts, with the same freedom that they arise. In other words—speak, or publish, whatever you believe to be truth.”); Albert Gallatin, The Speech of Albert Gallatin, a Representative from the County of Fayette, in the House of Representatives of the General Assembly of Pennsylvania, reprinted in 3 The Writings of Albert Gallatin 1, 6 (Henry Adams ed., 1879) (“Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.”). Alexander Addison drew a distinction between thought and speech, but he also, following Blackstone, limited his endorsement of speech restrictions to “bad sentiments.” See Addison, supra note 23, at 10 (“[L]iberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.”).

Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958); see also Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson, supra note 14, at 131, 132 (noting “an universal and almost uncontroverted position in the several states, [is] that the purposes of society do not require a surrender of all our [natural] rights”). Notably, Jefferson did not categorically reject governmental authority to punish malevolent expression. See Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 The Papers of Thomas Jefferson, supra note 14, at 440, 442 (1956) (“A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. John Vining), in 14 Documentary History of the First Federal Congress, supra note 14, at 340 (William Charles DiGiacomantonio et al. eds., 1995). This debate occurred before the First Amendment was formally ratified, but this fact evidently made little difference to the members of the First Congress. See also Congressional Debates (Feb. 11, 1790) (statement of Rep. Elias Boudinot), in 12 Documentary History of the First Federal Congress, supra note 14, at 288 (Helen E. Veit et al. eds., 1994) (“[I]t has been so lately contended, and settled, that the people have a right to assemble and petition for redress of grievances.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress, supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995).

Id. Vining and Ames were opposing a proposal to prevent tax collectors “from interfering, either directly, or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices.” Id. at 339 (statement of Rep. James Jackson). Some representatives enthusiastically supported the proposal, suggesting that it ought to be applied to other governmental officials, see id. at 340-41 (statement of Rep. Elbridge Gerry); id. at 341 (statement of Rep. John Laurance); id. at 342 (statement of Rep. Roger Sherman), thus protecting “the freedom of elections” from official interference, id. at 341 (statement of Rep. Michael Stone). The law did not prohibit speech, some proponents of the bill noted, because it merely placed a condition on office holding, see, e.g., id. at 340 (statement of Rep. Egbert Benson), although Roger Sherman advocated a broader ban on “the arts of electioneering,” id. at 339-40 (statement of Rep. Roger Sherman). The House ended up rejecting the measure.

Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788); see also Addison, supra note 94, at 50 (“If a man willfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offense.”); James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments, in 2 Collected Works of James Wilson, supra note 85, at 1087, 1090 (“The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event.”); Extract from a Charge . . . by the Honorable Thomas M’Kean, Chief Justice of the Supreme Court, with the unanimous approbation of the other Judges, in Pa. Packet (Philadelphia), Apr. 19, 1785, at 3 (“Men therefore have only to take care in their publications, that they are decent, candid and true, that they are for the purpose of reformation and not of defamation, and that they have an eye solely to the public good.”).

8 Annals of Cong. 2097 (1798) (statement of Rep. John Allen).

Id. at 2098; see also id. (mentioning “liberty of the press and of opinion”).

Id.

10 Annals of Cong. 917 (1801) (statement of Rep. Jonas Platt); see, e.g., H.R. Rep. No. 5-110, at 183 (1799); Addison, supra note 94, at 50; Iredell, supra note 49, at 348.

Stone, supra note 9, at 16. This point is widely recognized, though any effort to appreciate Federalist motives must at least grapple with the ongoing tumult in France. See Kathryn Preyer, United States v. Callender: Judge and Jury in a Republican Society, in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, at 173, 187 (Maeva Marcus ed., 1992) (“Only present-mindedness or lack of imagination leads us to dismiss casually [Federalist] fears as paranoia.”). The Federalist effort to reauthorize the Sedition Act in 1801 further complicates this standard historical account. For a penetrating review of Federalist thought, see Lendler, supra note 35, at 419-25.

The Dissent of the Minority of the House of Representatives of the Commonwealth of Pennsylvania, from the Address to the President of the United States, Adopted by Said House, December, 1798, at 4 (Philadelphia, 1799).

The Independant (Dec. 11, 1798), Times & Alexandria Advertiser, Dec. 15, 1798; see also 10 Annals of Cong. 922 (1801) (statement of Rep. Joseph Nicholson) (“It was and might be further urged, that the act was only aimed at false and malicious libels, tending to defame the Government. He granted it; but who were to be the judges?”).

Thomson, supra note 24, at 25. Later, Thomson made a broader argument against regulations of expression. See id. at 81-84; see also, e.g., John Page, An Address to the Freeholders of Gloucester County 15 (Richmond, John Dixon 1799) (describing the Sedition Act as “unjust as well as unconstitutional” because it applied to those who criticized the government “patriotically, and conscientiously, and constitutionally”).

To be sure, Federalists generally preferred deferential rather than populist politics, and they abhorred the Democratic-Republican societies in the mid-1790s that claimed to speak on behalf of the people. But contrary to some portrayals, see James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798, 66 U. Chi. L. Rev. 117, 134-35 (1999), these ideas did not come close to a view that individuals could or should be barred from discussing public affairs or criticizing the government in good faith, see Richard Buel Jr., Securing the Revolution: Ideology in American Politics, 1789-1815, at 93-112, 128-35, 244-61 (1972); Richard Buel Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820, in The Press and the American Revolution 59, 89 (Bernard Bailyn & John B. Hench eds., 1981).

Addison, supra note 94, at 42; see also 10 Annals of Cong. 933 (1801) (statement of Rep. John Rutledge, Jr.) (“[E]very man has the privilege of expressing unreservedly whatever he thinks on political subjects.”).

The Trial of the Seven Bishops (1688) (opinion of Richard Allibond), in 12 A Complete Collection of State Trials 183, 428 (London, T.B. Howell ed., 1816). For English statements against this view, see, for example, Jean Louis de Lolme, The Constitution of England, or An Account of the English Government 280 (London, T. Spilsbury 1775) (“[T]he English constitution . . . has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and . . . has thus delivered into the hands of the People at large, the exercise of the Censorial power.”); and [Thomas Gordon], Letter No. 15 (Feb. 4, 1720), in 1 John Trenchard & Thomas Gordon, Cato’s Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects 110, 111 (Ronald Hamowy ed., 1995) (“That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.”). For similar statements by Supreme Court justices, see John Blair’s Charge to the Grand Jury of the Circuit Court for the District of Delaware (Oct. 27, 1794), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49, at 485, 489 (Maeva Marcus ed., 1988) (“[W]hile men pay an external obedience to the laws, they have a right to think of them as they please, and even beyond this, to express their opinion decently, yet strongly, as a mean of obtaining an alteration . . . .”); Draft of John Jay’s Charge to the Grand Jury of the Circuit Court for the District of Virginia (before Apr. 22, 1793), in 2 Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49, at 359, 364 (Maeva Marcus et al. eds., 1990) (“As free Citizens we have a Right to think and speake our Sentiments . . . in Terms . . . explicit plain and decorous.”); and Wilson, supra note 85, at 1046 (stating that every “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures”). An enormous literature addresses the political controversies in the seventeenth and eighteenth centuries from which this freedom emerged. See, e.g., Bogen, supra note 8, at 442-44, 446; Mayton, supra note 8, at 102-08; Michael E. Stevens, Legislative Privilege in Post-Revolutionary South Carolina, 46 Wm. & Mary Q. 71, 71-73 (1989). See generally Fredrick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952).

For earlier discussions of the truth defense, see, for example, Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press, supra note 73, at 152, 153; Letter from John Marshall to Archibald Stuart (May 28, 1794), in 2 The Papers of John Marshall 267, 268 (Charles T. Cullen & Herbert A. Johnson eds., 1977). For a discussion of a famous controversy in New York over the truth defense, see Kate Elizabeth Brown, Rethinking People v. Croswell: Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic, 32 L. & Hist. Rev. 611 (2014). Some judges thought that “a defendant could establish the truth of the publication only to show that he lacked the requisite malicious intent.” David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence, 45 Am. J. Legal Hist. 154, 192 (2001); see, e.g., id. at 198-99 (describing the views of James Kent and Joseph Story).

H.R. Rep. No. 5-110, at 183 (1799); see 10 Annals of Cong. 920-21 (1801) (statement of Rep. Roger Griswold). Notably, some Federalists in January 1801 still held out hope that the presidential election would eventually swing their way after an impending deadlock between Jefferson and Burr. See James Roger Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance 139-41 (2010).

Lakier, supra note 35, at 2180; see sources cited supra note 35. The few scholars who have noted possible differences between speech and press rights either have yet to illuminate their relationship, see, e.g., Anderson, supra note 6, at 490 & n.211, or have insisted that the freedom of speech was derived from the legislative privilege of speech and debate, see sources cited supra note 4.

See, e.g., 8 Annals of Cong. 2148 (1798) (statement of Rep. Harrison Gray Otis) (“[T]he liberty of the press is merely an exemption from all previous restraints.”).

Id.

See, e.g., Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written or printed, or by pictures or other signs.”); see also Volokh, supra note 3, at 1059 (“The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning.”). The fact that expressive and non-expressive aspects of natural liberty were both subject to regulation in the promotion of the public good negated the need for a distinction between “speech” and “conduct.” Cf. Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899, 902-03 (1979) (“In order that the first amendment be applied effectively to carve out a category of activity for special protection, consideration must be given to the meaning of the word ‘speech’ . . . .”). Some Founders denounced theater bans, for instance, as obstructing “the natural right of every freeman to dispose of his time and money, according to his own taste and disposition, when not obnoxious to the real interests of society,” without any mention of the expressiveness of theater performance. To the Honorable the General Assembly of Pennsylvania, the Subscribers Being a Committee of the Dramatic Association . . . , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3. Moreover, theater supporters emphasized the permissibility of governmental regulation to promote the public good. See, e.g., Arguments in Favour of the Drama, Pa. Packet (Philadelphia), Feb. 17, 1789, at 3 (removing a ban on theater would still permit theaters to “be regulated,” because “every thing that has an immoral tendensy should be prohibited;—every exceptionable play, now extant, should be altered, or rejected, and none but those that have the good of mankind for their object, should be acted”). For an analysis of mid-1790s controversies about raising liberty poles, see Cornell, supra note 82, at 922-32.

See, e.g., Hutcheson, supra note 163, at 185 (asking “[i]f the Alienation be within our natural Power” and whether it “may serve some valuable Purpose”).

An Old Whig IV, Indep. Gazetteer (Philadelphia), Oct. 27, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Benjamin Rush lamented that combination, writing in 1777 that Pennsylvania’s “Bill of Rights has confounded natural and civil rights in such a manner as to produce endless confusion in society.” Benjamin Rush, Observations upon the Present Government of Pennsylvania, in Four Letters to the People of Pennsylvania 3 (Philadelphia, Styner & Cist 1777).

See Campbell, supra note 13, at 99.

Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 Papers of Thomas Jefferson, supra note 14, at 132.

Id. (listing “trial by jury, Habeas corpus laws, free presses” as positive rights); see also Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification, supra note 14, at 979, 983-84 (2004) (distinguishing natural rights from “constitutional or fundamental” rights); Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification, supra note 14, at 1051, 1059 (2004) (describing press freedom as a “fundamental right”). But see Heyman, supra note 3, at 1289 (citing Federal Farmer for the idea that press freedom is a natural right); McAffee, supra note 41, at 278-79 (same).

See sources cited supra note 3.

See supra Part II.

The Founders also often mentioned the freedom of the press as an obligation of printers to publish all items “conducive of general Utility,” without discrimination among writers. Livingston, supra note 139, at 81. See generally Robert W. T. Martin, The Free and Open Press: The Founding of Democratic Press Liberty, 1640-1800 (2001) (presenting a scholarly account of the development of the concept of the free press). This usage was prevalent, but it related to the public norms applicable to printers, not limitations on governmental power, and it seems to have had no direct relationship to original understandings of the First Amendment.

Pa. Const. of 1776, art. 12 (“[T]he people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”); see also Complete Bill of Rights, supra note 73, at 93 (presenting similar proposals of North Carolina, Rhode Island, Virginia, and the Pennsylvania minority). For a history of this provision, see Smith, supra note 8, at 58-63. Scholars have elided the distinct meanings of these clauses. See, e.g., Levy, supra note 3, at 204; Volokh, supra note 3, at 1080-81. Other states opted for a simple declaration in favor of the liberty of the press. See Anderson, supra note 6, at 464-65, 538-41. Vermont, which had asserted its independence from New York, was the only other state to invoke the freedom of speech in its constitution. See Vt. Const. of 1786; Vt. Const. of 1777, ch. 1, § 14. For John Adams’s earlier proposal of a nearly identical provision, see John Adams, The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts (Sept. 1, 1779), reprinted in 4 The Works of John Adams 219, 227 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851) (“The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.”). For a brief history of this proposal, see Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts 133-36 (1906).

4 William Blackstone, Commentaries *151, *152. Notably, Blackstone assumed that “the object of legal punishment” was harmful speech, “destructive of the ends of society.” Id. at *153.

De Lolme, supra note 182, at 283. Sedition was originally tried in the Star Chamber, without common-law procedural rights. See Mayton, supra note 8, at 105.

Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 455 (Merrill Jensen ed., 1976); see also, e.g., [Hugh Williamson], Speech at Edenton, N.C., N.Y. Daily Advertiser (Feb. 25, 1788), in 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (equating freedom of the press with freedom from “the restraint of any license”); N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette, Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (same).

To the Citizens of Virginia, Winchester Va. Gazette, Feb. 22, 1788, reprinted in 8 Documentary History of the Ratification, supra note 14, at 404-05 (1988); cf. Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press, supra note 73, at 152, 153 (“[I]f the jury found [the putatively libellous statements] true and that they were published for the Public good, they would readily acquit.”); Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163 (John P. Kaminski et al. eds., 2003) (warning that without a jury the government “will easily find pretexts” to restrain “what it may please them to call—the licentiousness of the press”).

See, e.g., Meyler, supra note 18, at 581.

See Hamburger, supra note 3, at 954. Inalienable natural rights, just like alienable natural rights, were circumscribed by natural law. Id. at 931-32, 954.

Wilson, supra note 131, at 509.

Id. at 514-18.

Id. at 522.

See R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 97-98 (2015).

Addison, supra note 94, at 29; see Helmholz, supra note 207, at 96 (mentioning English invocations of this idea); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 854 (1978) (describing the custom of the common law as “the most reliable evidence of the content of natural law”); see also Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court, 115 Harv. L. Rev. 5, 39-40 (2001) (noting that natural rights required political recognition before entering the customary constitution).

Wooddeson, supra note 13, at 28; see, e.g., 1 William Blackstone, Commentaries *74 (observing that the common law “probably was introduced by the voluntary consent of the people”); Sullivan, supra note 102, at 16 (“The common law, is a system of commonly received opinions, established by the common consent of the people, without acts of the legislature, and defined by practice in the courts of law.”); James Wilson, Of Municipal Law, in 1 Collected Works of James Wilson, supra note 85, at 549, 569 (“A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.”).

See Reid, supra note 74, at 22. Overlooking the Founders’ appreciation for the substantial indeterminacy of natural law, James Whitman asserts that their writings about custom and reason lacked coherence and intelligibility and were, instead, “a confused mélange.” James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U. Chi. L. Rev. 1321, 1323, 1367 (1991). This position leads Whitman to the bold conclusion that “[t]here is little point in trying to identify the underlying logic of American legal thinking in the revolutionary era,” and “[s]tudies that purport to explain the Founders’ conception of the Constitution are thus doomed to mislead.” Id. at 1366-67. In my view, Whitman gives inadequate attention both to the recognition of underdeterminacy in reason, which made it far easier to claim simultaneous fidelity to both reason and custom, and to the rational need for established legal rules, including customary rules. Locke and Blackstone, for instance, each insisted that human law must conform to natural law, that natural law is a highly underdeterminate source of law, and that reason dictates that governments must act pursuant to established rules. See 1 William Blackstone, Commentaries *42-55, *67-71; John Locke, Second Treatise of Government §§ 135-137 (1690), reprinted in John Locke, supra note 111, at 159-61.

See James Wilson, Of the Law of Nations, in 1 Collected Works of James Wilson, supra note 85, at 526, 529; see also, e.g., 1 William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other . . . . [N]o human laws are of any validity, if contrary to this.”).

Hamburger, supra note 113, at 38-39.

John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire 25 (2004) (quoting Dudley).

Hay, supra note 152, at 9.

Of course, the divide between lawyers and non-lawyers is stylized, just like my distinction between elites and non-elites. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 309.

See supra notes 200-201 and accompanying text.

Addison, supra note 94, at 48; see also, e.g., William Paterson, Second Draft Opinion on the Sedition Law of 1798, reprinted in Williamjames Hull Hoffer, William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law, 22 J. Sup. Ct. Hist. 36, 48 (1997) (“[T]he freedom of the press is a relative term; and refers to an existing rule. We must first know in what the freedom of the press consists . . . .The com. law gives the rule, which is well known to every part of the U. States.”). Federalist arguments about judicial power had drifted in some respects by the late 1790s. See Larry D. Kramer, Marbury and the Retreat from Judicial Supremacy, 20 Const. Comment. 205, 220-21 (2003). But struggles between lawyerly and non-lawyerly modes of constitutional interpretation were already prominent by the late 1780s. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 304-11.

James Madison, The Report of 1800 (Jan. 7, 1800), in 17 The Papers of James Madison 303, 309 (David B. Mattern et al. eds., 1991). The context of this passage was a defense of state interpretive authority, but Madison’s language nicely captures the essence of his attack on using the common law to delineate the scope of speech and press freedoms.

Id. at 336.

Id. at 338. This analysis came in the midst of Madison’s discussion of “the proper boundary between the liberty and licentiousness of the press,” id. at 337, and the degree to which states, as a matter of “wis[e] . . . policy,” id. at 338, had properly chosen to underenforce speech-restrictive rules. The Virginia Report of 1800 never took the broad, affirmative position that any restriction of political speech necessarily violates speech and press freedoms. Rather, it presented a narrower, negative argument that American protections for expressive freedom ought to be “greater” than in England, id. at 337, and were, in practice, “not . . . confined to the strict limits of the common law,” id. at 338.

Id. at 337. Relatedly, Republicans denied that judges were the exclusive or supreme arbiters of constitutional meaning. See Kramer, supra note 217, at 222.

Madison, supra note 218, at 337, 339.

See id. at 339 (“[The First Amendment] was meant as a positive denial to Congress, of any power whatever on the subject.”).

For the defeat of proposals to guarantee the freedom of the press, see 2 The Records of the Federal Convention of 1787, at 341, 587-88, 617 (Max Farrand ed., 1911). For a more detailed account, see Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity, 9 Sup. Ct. Rev. 301, 304-08 (1990).

See, e.g., George Mason, Objections to the Constitution of Government Formed by the Convention, in 8 Documentary History of the Ratification, supra note 14, at 43, 43 (John P. Kaminski & Gaspare J. Saladino eds., 1988). Anti-Federalists “were by no means a homogenous or cohesive group,” but “common themes run through many of their writings.” Wesley J. Campbell, Commandeering and Constitutional Change, 122 Yale L.J. 1104, 1127-28 (2013). For the leading treatment of Anti-Federalism, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). For a concise history of the Bill of Rights, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 435-68 (2010).

See, e.g., Pennsylvania Ratification Convention Debates (Nov. 28, 1787) (statement of Robert Whitehill), in 13 Documentary History of the Ratification, supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (stating that “from the nature of their power they must necessarily be the judges, what laws are necessary and proper”); Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The powers of Congress are unlimited and undefined. They will be the judges of what is necessary and proper.”); Virginia Ratification Convention Debates (June 10, 1788) (statement of James Monroe), in 9 Documentary History of the Ratification, supra note 14, at 1092, 1112 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (stating that Congress would be “not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect”).

Brutus II, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 154, 156 (John P. Kaminski et al. eds., 2003); see also, e.g., Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in id. at 160, 162 (“The conventions that made the state and the general constitutions, sprang from the same source, were delegated for the same purpose . . . .”).

An Officer of the Late Continental Army, Indep. Gazetteer (Philadelphia), Nov. 6, 1787, reprinted in 2 Documentary History of the Ratification, supra note 14, at 210, 211 (Merrill Jensen ed., 1976). The following year, Findley tied the “right of every man to publish his sentiments on public proceedings” to the requirement of a jury trial, but he did not suggest that publishers were constitutionally immune from prosecution even with a jury. Pennsylvania Assembly Debates (Sept. 1788) (statement of Rep. William Findley), in Respublica v. Teischer, 1 U.S. (1 Dall.) 335, 335-36 n.* (Pa. 1788). For other concerns about the manipulations of libel laws, see Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (noting that Congress might construe its powers to punish “any writer [who] should dare to stand forth and expose to the community at large, the abuses of those powers”); and Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The liberty of the press is not secured. Congress may license the press, and declare what shall be a libel.”). Others located a possible grounding for this power in the Speech and Debate Clause. See Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454, 454 (Merrill Jensen ed., 1976) (“The press is by this clause restrained; because the members shall not be questioned for speeches in any other place.”).

A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification, supra note 14, at 942, 961 (John P. Kaminski et al. eds., 2004); Federal Farmer No. 16 (Jan. 20, 1788), in id. at 1059.

See, e.g., Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454, 454 (Merrill Jensen ed., 1976) (stating that Congress, under the Copyright Clause, “may license the press, no doubt; and under licensing the press, they may suppress it”).

See, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 30, 1788) (statement of William Lenoir), in 4 Debates in the Several State Conventions, supra note 76, at 203 (“[Congress] have also an exclusive legislation in their ten miles square . . . . Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury.”); Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (“[C]ould they not . . . lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?”).

But see An Old Whig III, Indep. Gazetteer (Philadelphia), Oct. 20, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 425, 426-27 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (identifying the Supremacy Clause as a potential threat to the freedom of the press).

Cf. Address of the Minority of the Maryland Convention, Annapolis Md. Gazette, May 1, 1788, reprinted in 17 Documentary History of the Ratification, supra note 14, at 242, 244 (John P. Kaminski & Gaspare J. Saladino eds., 1995) (“In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable.”); Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163-64 (John P. Kaminski et al. eds., 2003) (describing press freedom as the “only” security “that will save any future printer from the fangs of power” because otherwise “the judges might put the verdict of a jury out of the question”).

An exception was the frequent Anti-Federalist inclusion of a “right to freedom of speech, and of writing and publishing their sentiments,” or similar phrases, in their lengthy lists of draft amendments. See Virginia Convention Amendments (June 27, 1788), in 18 Documentary History of the Ratification, supra note 14, at 199, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1995); see also Proposals from the State Conventions, in Complete Bill of Rights, supra note 73, at 93 (presenting similar proposals by North Carolina, Rhode Island, and the Pennsylvania minority); The Society of Western Gentlemen Revise the Constitution, Va. Indep. Chron. (Richmond), Apr. 30, 1788, reprinted in 9 Documentary History of the Ratification, supra note 14, at 769, 773 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (“That the people have a right to the freedom of speech, of writing, and publishing their sentiments; therefore printing presses shall not be subject to restraint, other than liableness to legal prosecution, for false facts printed and published.”). A decade earlier, some town returns in Massachusetts mentioned the omission of the freedom of speech (or speaking, writing, and publishing) in the state’s proposed constitution. See The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, at 682, 742, 749-50, 762, 789, 795, 856 (Oscar Handlin & Mary Handlin eds., 1966).

Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification, supra note 14, at 1051, 1057-58 (John P. Kaminski et al. eds., 2004); see also, e.g., A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification, supra note 14, at 942, 961-62 (John P. Kaminski et al. eds., 2004) (focusing on fundamental positive rights); Brutus II, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 154, 156-59 (John P. Kaminski et al. eds., 2003) (same); Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson, supra note 14, at 438, 440 (1955) (same). Many Anti-Federalists mentioned the freedom of conscience, which was an inalienable natural right that had assumed a place in the customary constitution (through the Toleration Act, for instance). McAffee asserts that Federal Farmer’s “same analysis applied to the rights that were considered natural and inalienable,” McAffee, supra note 41, at 278, but McAffee errs by concluding that Federal Farmer viewed press freedom as a retained natural right. See supra note 193.

See, e.g., Heyman, supra note 3, at 1289 (noting that the “most important” rights to Anti-Federalists included “freedom of speech and press”); cf. Mayton, supra note 8, at 118 (“[A]n understanding was reached at the convention and during the ratification process that the national government had no power over speech.”). But see Rosenthal, supra note 6, at 15 (“As for freedom of speech, anti-Federalists said virtually nothing about it.”); Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification, supra note 14, at 979, 985 (John P. Kaminski et al. eds., 2004) (mentioning only press freedom); Virginia Ratification Convention Debates (June 16, 1788) (statement of Patrick Henry), in 10 Documentary History of the Ratification, supra note 14, at 1328, 1332 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (same); Philanthropos [Tench Coxe], To the People of the United States, Pa. Gazette (Philadelphia), Jan. 16, 1788, reprinted in 15 Documentary History of the Ratification, supra note 14, at 391, 393 (John P. Kaminski & Gaspare J. Saladino eds., 1984) (noting that, outside of Pennsylvania, “the freedom of speech” was unmentioned by leading Anti-Federalists). Anti-Federalist references to freedom of expression usually related to the effect of press restraints on public discussion. See, e.g., An Old Whig I, Indep. Gazetteer (Philadelphia), Oct. 12, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 376, 378 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (mentioning, in a discussion of press freedom, “free communication . . . on political subjects”); [Samuel Bryan], Centinel II, Phila. Freeman’s J., Oct. 24, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 457, 460, 466 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (mentioning “the right of expressing and publishing . . . sentiments upon every public measure” but otherwise focusing solely on press freedom). Mentions of the longstanding English right of petition were similarly rare. See Mark, supra note 82, at 2206.

See Wood, supra note 18, at 295-96; Rakove, supra note 77, at 187; John Phillip Reid, The Authority of Rights at the American Founding, in The Nature of Rights, supra note 76, at 67, 97; Suzanna Sherry, Natural Law in the States, 61 U. Cin. L. Rev. 171, 171-72 (1992); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1157-58 (1987); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 502 (2005). Whether customary positive rights implicitly limited governmental authority continued to be a topic of heated discussion. Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 387-89 (1798) (opinion of Chase, J.) (concluding that certain fundamental positive rights were implicit limitations on governmental power), with id. at 398-99 (opinion of Iredell, J.) (confining judicial review to enumerated rights).

[Jay], supra note 75, at 933; see also, e.g., Uncus, Md. J. (Baltimore), Nov. 9, 1787, reprinted in 14 Documentary History of the Ratification, supra note 14, at 76, 78 (John P. Kaminski & Gaspare J. Saladino eds., 1983) (declaring that freedom of the press is “a privilege, with which every inhabitant is born;-a right . . . too sacred to require being mentioned”); Foederal Constitution, Pa. Gazette (Philadelphia), Oct. 10, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 362, 363 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[T]he Liberty of the Press would have been an inherent and political right, as long as nothing was said against it.”); South Carolina Ratification Convention Debates (Jan. 18, 1788) (statement of Charles Cotesworth Pinckney), in Complete Bill of Rights, supra note 73, at 98, 98 (“The general government . . . has no power to take away the liberty of the press.”).

See Virginia Ratification Convention Debates (June 25, 1788), in 10 Documentary History of the Ratification, supra note 14, at 1537-38 (John P. Kaminski & Gaspare J. Saladino eds., 1993); New York Declaration of Rights, Form of Ratification, and Recommendatory Amendments to the Constitution (July 26, 1788), in 23 Documentary History of the Ratification, supra note 14, at 2326, 2326-28 (John P. Kaminski et al. eds., 2009).

See Campbell, supra note 13, at 100.

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton); see also, e.g., A Native of Virginia: Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification, supra note 14, at 655, 691 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (“[A]s the Congress can claim the exercise of no right which is not expressly given them by this Constitution; they will have no power to restrain the press in any of the States; and therefore it would have been improper to have taken any notice of it.”); [Robert Sherman], A Citizen of New Haven, Conn. Courant (Hartford), Jan. 7, 1788, reprinted in 3 Documentary History of the Ratification, supra note 14, at 524, 525 (Merrill Jensen ed., 1978) (“The liberty of the press can be in no danger, because that is not put under the direction of the new government.”).

See James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification, supra note 14, at 337, 340 (John P. Kaminski & Gaspare J. Saladino eds., 1981); Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 454, 454-55 (Merrill Jensen ed., 1976); [James Iredell], Marcus No. 4, Norfolk & Portsmouth J., Mar. 12, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 379, 382 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (“[T]he future Congress will have no other authority over [the press] than to secure to authors for a limited time the exclusive privilege of publishing their works.”). But Federalists generally denied only federal power over the freedom of the press.

The Federalist No. 84, supra note 114, at 580 n.* (Alexander Hamilton). Other Federalists equated press freedom with freedom from “the restraint of any license.” Hugh Williamson, Speech at Edenton, N.C., N.Y. Daily Advertiser, Feb. 25, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986); see, e.g., Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 454, 455 (Merrill Jensen ed., 1976) (“[W]hat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”).

See infra notes 122-128 and accompanying text.

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton); see Shain, supra note 158, at 127; see, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 29, 1788) (statement of [Archibald] Maclaine), in 4 Debates in the Several State Conventions, supra note 76, at 160, 166-67; John De Witt No. 2, Am. Herald (Boston), Oct. 29, 1787, reprinted in 4 Documentary History of the Ratification, supra note 14, at 156, 158-59 (John P. Kaminski & Gaspare J. Saladino eds., 1997); see also Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent,” 15 Harv. J.L. & Pub. Pol’y 965, 988-97 (1992) (collecting dozens of examples).

See, e.g., Letter from George Washington to James Madison (ca. May 31, 1789), in 12 The Papers of James Madison, supra note 72, at 191, 191 (Charles F. Hobson et al. eds., 1979); Letter from David Ramsay to Benjamin Rush (Nov. 10, 1787), in 14 Documentary History of the Ratification, supra note 14, at 83, 83-84 (John P. Kaminski & Gaspare J. Saladino eds., 1983).

See Finkelman, supra note 224, at 336-37; see also Cornell, supra note 225, at 158-63 (explaining the modesty of the Bill of Rights); see also, e.g., Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 16 Documentary History of the First Federal Congress, supra note 14, at 748, 749 (Charlene Bangs Bickford et al. eds., 2004) (“Upon the whole, it may do some good towards quieting men who attend to sounds only, and may get the mover [James Madison] some popularity—which he wishes.”); Letter from Pierce Butler to James Iredell (Aug. 11, 1789), in 16 Documentary History of the First Federal Congress, supra, at 1288, 1289 (Charlene Bangs Bickford et al. eds., 2004) (“A few milk-and-water amendments have been proposed by Mr. M[adison], such as liberty of conscience, a free press, and one or two general things already well secured.”).

See Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 660 (1958) (“This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild [sic] submitted to them.”). Scholars have long disagreed about Madison’s private ambivalence about a bill of rights. See Stuart Leibiger, James Madison and Amendments to the Constitution, 1787-1789: “Parchment Barriers,” 59 J.S. Hist. 441, 441-42 (1993) (reviewing the scholarly debate).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress, supra note 14, at 818, 823 (Charlene Bangs Bickford et al., eds., 1992).

Id. at 823-24.

Id. at 823.

Id. at 825 (“[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights”). Scholars often misattribute to Madison the idea that enumerating a right in the Constitution was necessary and sufficient for its judicial enforceability against contrary legislation. See, e.g., Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1, 19-20 (2010). Both the wording and the context of Madison’s statement, however, indicate that “Madison was making a point about judicial psychology and judicial politics, not judicial duty.” Jud Campbell, Judicial Review and the Enumeration of Rights, 15 Geo. J.L. & Pub. Pol’y 569, 571 (2017). Madison, in other words, was addressing the same types of concerns that Alexander Hamilton mentioned in The Federalist regarding the “natural feebleness” of the judiciary, which Hamilton described as “in continual jeopardy of being overpowered, awed or influenced by [the] coordinate branches . . . .” The Federalist No. 78, supra note 114, at 523 (Alexander Hamilton).

Madison Resolution (June 8, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 9, 10 (Charlene Bangs Bickford & Helen E. Veit eds., 1986).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison, supra note 72, at 193, 194 (Charles F. Hobson et al. eds., 1979) (“natural rights, retained—as Speech, Con[science]”).

Madison also singled out the freedom of the press in a set of three rights that would apply against state governments, again suggesting an intent to treat speech and press freedoms differently. See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress, supra note 14, at 818, 826 (Charlene Bangs Bickford et al. eds., 1992).

Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in Complete Bill of Rights, supra note 73, at 83, 83.

Id. at 84.

House Committee of Eleven Report (July 28, 1789), in Complete Bill of Rights, supra note 73, at 84, 84. For a slightly longer discussion of the Amendment’s drafting history, see Rosenthal, supra note 6, at 15-17.

U.S. Const. amend. I.

See generally A. P. Martinich, Four Senses of ‘Meaning’ in the History of Ideas: Quentin Skinner’s Theory of Historical Interpretation, 3 J. Phil. Hist. 225 (2009) (classifying the four types of “meaning” in the history of ideas); Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111 (2015) (examining the role of intellectual history in constitutional theory). Prompted by critics, see, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 215-16 (1980), contemporary originalism scholarship focuses largely on the original “meanings” of constitutional provisions rather than the Framers’ intentions. The distinction between intentions and meanings is somewhat porous, however, considering that Madison—a native speaker of the language of eighteenth-century American constitutionalism—tried to draft a provision with the meaning that he intended. See Gienapp, supra note 10, at 938 & n.15; Solum, supra, at 1134-36.

See supra note 22 (collecting sources that discuss Founding Era disagreements about methods of constitutional interpretation).

See supra Section II.A.

For an introduction to “equitable” interpretation, see Hamburger, supra note 113, at 344-57; McConnell, supra note 252, at 20-21; and Michael W. McConnell, The Ninth Amendment in Light of Text and History, 2009 Cato Sup. Ct. Rev. 13.

See supra notes 124-136 and accompanying text.

Hortensius [George Hay], An Essay on the Liberty of the Press 38 (Philadelphia, Aurora Office 1799).

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton).

Id. at 580; see also Cooper v. Telfair, 4 U.S. (4. Dall.) 14, 18 (1800) (opinion of Chase, J.) (“The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory . . . .”); 3 Documentary History of the Ratification, supra note 14, at 471, 472-73 (Merrill Jensen ed., 1978) (making a similar point); [Webster], supra note 140, at 484, 490 (“[A]ny restriction of [Congressional] power by a general indefinite expression, is a nullity—mere formal nonsense.”). In The Federalist, Hamilton expressed contradictory views, stating both that without judicial protection “the reservations of particular rights or privileges would amount to nothing,” The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton), and that placing “the whole power of the proposed government . . . in the hands of the representatives of the people . . . is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society,” The Federalist No. 28, supra note 114, at 178 (Alexander Hamilton).

Parsons, supra note 111, at 367; see also, e.g., Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 78, at 350, 351 (Robert A. Rutland et al. eds., 1973) (describing bills of rights as providing “exceptions” to legislative authority); The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton) (describing constitutional rights like the rule against “ex-post-facto laws” as “certain specified exceptions to the legislative authority” that are enforceable in court).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress, supra note 14, at 818, 823 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added).

Id. at 824.

See supra Section II.C.

See supra Section II.B.

Addison, supra note 94, at 48. That stance, however, may be less revealing of original meaning than of the emergent Federalist quest for judicial supremacy, which sought to separate constitutional interpretation from matters of policy. Cf. Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 307 (“Elite legal culture in the Founding Era, particularly among Federalists, was designed to shore up a basic distinction between law and politics . . . . Proponents of popular constitutionalism generally sought to eliminate this distinction . . . .”); Iredell, supra note 49, at 344 (distinguishing “considerations of policy” from “questions of law”).

This account of the “original meaning” of the First Amendment is subject to the caveats mentioned in Part I regarding elite sources.

See sources cited supra note 4.

See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 87-90 (2007); Bogen, supra note 8, at 431-35; Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1120-40 (1973).

Bogen, supra note 8, at 436.

Amar, supra note 5, at 815; see sources cited supra note 5.

As one scholar observes, “The tie between legislative privilege and the first amendment was asserted as early as 1799 by George Hay.” Bogen, supra note 8, at 435 (citing [Hay], supra note 265). True, but Hay was defining the meaning of the word “freedom,” not the provenance of the term “freedom of speech.” [Hay], supra note 265, at 42 (“[T]he meaning of the word freedom, is precisely and unequivocally established by the constitution itself.”). Hay argued that this “freedom” was secured through “a total exemption from the control of any law, or the jurisdiction of any court.” Id. John Thomson also analogized to legislative privilege without suggesting that it was the originating concept for the freedom of speech. See Thomson, supra note 24, at 19-20, 76-77.

Amar, supra note 5, at 790; cf. William Michael Treanor, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 Mich. L. Rev. 487, 494 (2007) (criticizing Amar’s “assumption that careful reading of the text consistently reveals original meaning”).

See, e.g., Pa. Const. of 1790, art. IX, § 7 (declaring the right to speak on “any subject”); 3 Joseph Story, Commentaries on the Constitution of the United States § 1874 (1833) (recognizing “a right to speak, write, and print his opinions upon any subject whatsoever”); Tucker, supra note 133, at 376 (“Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . .”); Wilson, supra note 85, at 1055-56 (stating that natural liberty existed for man to accomplish “those purposes . . . as his inclination and judgment shall direct”); Letter from William Cushing to John Adams (Feb. 18, 1789), in Freedom of the Press, supra note 73, at 147, 150 (“[D]oes [press freedom] not comprehend a liberty to treat all subjects and characters freely, within the bounds of truth?”). A polity could, of course, choose to reaffirm only a portion of this natural liberty in its declaration of rights. See, e.g., Vt. Const. of 1786, ch. I, § V (“That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government . . . .”). Again, my focus is the meanings of the Speech and Press Clauses, not the motives for enacting them. See supra note 58 (explaining my approach).

Heyman, supra note 3, at 1282; see supra note 48 (discussing Philip Hamburger’s views).

Individuals, by contrast, had natural rights—and particularly the right of reputation—that could be abridged even through well-intentioned statements, thus placing a natural-law qualification on the inalienable right to make well-intentioned statements.

See sources cited supra note 182.

Examples include profane swearing bans, blasphemy laws, restrictions on advertising, restrictions on theater performances, and rules against making certain agreements on Sundays. See 8 Annals of Cong. 2148-49 (1798) (statement of Rep. Harrison Gray Otis) (recounting many extant legal restrictions on speech); Constitution and Laws of the State of New Hampshire; Together with the Constitution of the United States 339 (1805) (prohibiting lotteries and any advertising thereof); 3 Laws of the Commonwealth of Pennsylvania, 1700-1810, at 177-78 (1810) (forbidding “any worldly employment or business whatsoever” on Sunday, as well as profanity and swearing at all times).

See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173, 196; Rakove, supra note 77, at 193. Indeed, the Ninth Amendment may reject “the necessity or superiority of enumeration.” Kurt T. Lash, The Lost History of the Ninth Amendment 82 (2009). Some people suggested that enumeration would facilitate the judicial enforcement of rights, see, e.g., An Old Whig II, Indep. Gazetteer (Philadelphia), Oct. 17, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[W]ho can overrule [Congress’s] pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements.”), but these claims surely referred to legal rights and did not intimate that judges would assume the position of deciding which restrictions of natural liberty promoted the public good, see supra notes 232-236 and accompanying text.

Congressional Debates (Aug. 15, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress, supra note 14, at 1259, 1259 (Charlene Bangs Bickford et al. eds., 1992); see Rakove, supra note 4, at 324.

Federalists made this point over and over in the Sedition Act debates. See, e.g., H.R. Rep. No. 5-110, at 183 (1799) (contending that press freedom had never extended, “according to the laws of any State . . . to the publication of false, scandalous, and malicious writings against the Government”); Iredell, supra note 49, at 348 (arguing that state constitutions and bills of rights were the “strongest proof . . . that the freedom of the press does not require that libellers shall be protected from punishment”).

See supra notes 124-136 and accompanying text.

But see Bogen, supra note 8, at 458 (“At a minimum, the freedom of speech meant that restrictions on speech are impermissible unless necessary to accomplish a legitimate function of government, and that the courts rather than the legislature should ultimately determine that necessity.”).

Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.). The limited nature of Founding Era judicial review is well known. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 140-42 (1893); see also Christopher R. Green, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review, 57 S. Tex. L. Rev. 169, 172-83 (2015) (documenting the strong presumption of constitutionality evident in early state court decisions); McGinnis, supra note 62, at 880-904 (explaining that early judges would find unconstitutionality only when constitutional meaning was “clear”)Notably, the clarity of constitutional law did not depend solely on text but “drew on well-established principles of the customary constitution as well.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 99 (2004).

Calder, 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.).

See, e.g., Campbell, supra note 13, at 99-104.

Consequently, Founding Era judges repeatedly upheld narrowly drawn sedition laws. See Blumberg, supra note 8, at 1-6. Wendell Bird argues that some Federalist judges rejected the constitutionality of sedition laws. See Bird, supra note 3, at 474. Bird’s research is prodigious, but his evidence merely shows that Federalist judges accepted the freedom of opinion, not that they rejected the constitutionality of narrowly drawn sedition laws. See supra notes 166-187 and accompanying text. Bird, like Leonard Levy before him, “fails to recognize that it was possible for the framers of the first amendment [among other Founders], influenced by republican political theory, to expand the protection for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conception of seditious libel.” Rabban, supra note 8, at 796.

But see supra notes 36 & 41 and accompanying text. To be sure, if viewed in isolation from its context, the First Amendment’s text could be stretched to eliminate federal power to regulate speech. All that a reader would have to do, after all, is disregard the limits on expressive freedom imposed by natural law and social obligation, leading to a view that the First Amendment categorically prohibited any interference with expression. See Tucker, supra note 133, at 386.

See Campbell, supra note 152. Although Republicans prevailed in their inventive interpretation of the First Amendment, an understanding of speech freedom as a natural right remained prominent in the nineteenth century. See, e.g., Cooper, supra note 161, at 41; 1 Benjamin L. Oliver, The Rights of An American Citizen 222 (1832).

[Hay], supra note 265, at 39.

See, e.g., Leonard W. Levy, Introduction to Freedom of the Press, supra note 73, at xix, lvi-lvii; Jay, supra note 6, at 791.

See, e.g., The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 12 (1799); Addison, supra note 94, at 44; Paterson, supra note 217, at 48; cf. The Federalist No. 84, supra note 114, at 575, 579 (Alexander Hamilton) (expressing concern that bills of rights could be “dangerous” because they could “afford a colourable pretext to claim more [governmental powers] than were granted”).

House Resolution and Articles of Amendment (Aug. 24, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 35, 36, 39 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) (emphasis added).

See Anderson, supra note 6, at 493, 502, 508; Bogen, supra note 8, at 458 n.143. Even strict textualists might accept this argument. Cf. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 737 n.272 (1997) (“[T]extualist judges . . . do not categorically exclude a statute’s drafting evolution from their consideration of statutory context.”); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 361 (2005) (“[M]any textualists use records of a bill’s drafting history . . . .”).

See supra note 52 and accompanying text.

See Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. Rev. 1784, 1796 (2008).

376 U.S. 254 (1964).

See, e.g., Wortman, supra note 24, at 259 (stating that public officials can sue for libel “upon the same footing with a private individual,” given that “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy”); Tucker, supra note 133, at 237-38 (same); cf. Thomson, supra note 24, at 81-84 (calling for unimpeded public debate about public figures).

See supra notes 188-189 and accompanying text.

See, e.g., John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 181-85 (2013); Baude, supra note 63, at 2358-61; McConnell, supra note 62, at 1765; Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 861-64 (2015).

See generally Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 420-31 (2013) (arguing that originalism can exert a “gravitational force” on doctrine, even when original meaning does not explicitly form the basis of judicial decisions).

See infra note 328.

For instance, robust judicial management of the Speech Clause might stem from a broader project of judicial engagement, see, e.g., Barnett, supra note 69, at 132-49, 255-71, or process-based concerns about regulations of expression, see, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105-16 (1980).

See, e.g., Kagan, supra note 70, at 414; Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725, 736-44 (1998); Strauss, supra note 70, at 196-202. See generally Richard H. Fallon, Jr., Implementing the Constitution 89-95 (2001) (discussing motive tests).

See Ronald Dworkin, Taking Rights Seriously, at xi (1977) (defining rights as “political trumps held by individuals”); Pildes, supra note 311, at 728 (identifying “the view of rights as immunities” as “the prevailing view among rights philosophers”). Modern doctrine permits regulation of speech for good reasons. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 Mich. L. Rev. 1, 19-26 (1998); Pildes, supra, at 736-44.

Pildes, supra note 311, at 729.

Id.

See generally United States v. Eichman, 496 U.S. 310 (1990) (invalidating a federal law that criminalized flag burning); Texas v. Johnson, 491 U.S. 397 (1989) (holding that flag burning is protected expression under the First Amendment); John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975) (analyzing flag-desecration cases). Similarly, the government can impose criminal penalties on “fighting words”—i.e., speech likely to provoke violence—but it cannot target a more limited set of fighting words that the government finds especially objectionable. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

An important qualification is that the government generally cannot justify speech-suppressing laws based on communicative harms. This principle finds no historical support unless one supposes that its adoption, in the aggregate, promotes the public good.

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

See, e.g., Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding a content-based regulation of speech in the context of judicial elections).

The same pattern has been true of press freedoms. In the early twentieth century, the scope of the rule against prior restraints expanded beyond just bans on licensing regimes. See Near v. Minnesota, 283 U.S. 697 (1931). At the same time, the Court recognized that countervailing governmental interests can sometimes justify prior restraints. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases). Similarly, procedural due process rights have vastly expanded in scope (covering “new property,” for instance), while now providing only a “flexible” degree of “procedural protections as the particular situation demands,” Matthews v. Eldridge, 424 U.S. 319, 321 (1976), rather than an inflexible set of common-law procedural rules. One could make a similar argument about many other rights.

See, e.g., Hugo Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 874 (1960); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245 (arguing that the First Amendment is absolute within the domain of self-governance).

See generally Ely, supra note 310.

See supra note 311 and accompanying text.

Some proponents of more robust speech doctrine in the early twentieth century took this approach, emphasizing the aggregate social benefits of speech-protective doctrines. See White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, supra note 60, at 316-21. But a weakness in this approach was the indeterminacy of questions about the public good and doubts about why judges were better situated than legislators to make these types of assessments. Id. at 322.

Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 93 (2016).

District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

United States v. Stevens, 559 U.S. 460, 470 (2010).

Id.; see also, e.g., United States v. Alvarez, 567 U.S. 709, 717-18, 722-23 (2012) (plurality opinion) (summarizing the same idea and applying it to false statements).

See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015). The issue in Reed was how to identify “content-based” speech restrictions—a concept aptly described as “the keystone of First Amendment law.” Kagan, supra note 70, at 443; see also Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. Pa. J. Const. L. 1261, 1263 n.2 (2014) (collecting sources). Opting for a broader, more speech-protective definition, the Court declared that the First Amendment “expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” Reed, 135 S. Ct. at 2229 (alteration in original) (quoting U.S. Const. amend. I). Historically, however, the mere “operation” of a speech restriction did not present a judicially cognizable First Amendment problem unless it abridged either a common-law right or the inalienable liberty to express one’s thoughts. See supra notes 260-274 and accompanying text.

1 William Blackstone, Commentaries *125.

St. George Tucker, On the State of Slavery in Virginia (1796), reprinted in View of the Constitution of the United States with Selected Writings, supra note 133, at 402, 407.

Jack M. Balkin, Living Originalism 32 (2011); see also id. at 42 (identifying “abstract or vague phrases of the Constitution,” including “cruel and unreasonable punishments” and “freedom of speech”); id. at 350 n.12 (making the same point with respect to “the Fourth Amendment’s standard of ‘unreasonable’ searches and seizures and the First Amendment’s principle of ‘freedom of speech’”); Dworkin, supra note 54, at 199 (“The First Amendment, like the other great clauses of the Bill of Rights, is very abstract.”).

Cf. Dworkin, supra note 54, at 272 (“The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim.”).

Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1192 (2016); see also id. at 1270-71 (“That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal.”).

Id. at 1192.

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1743, 1745 (2008).

Id. at 1745.

By overwhelmingly relying on Founding Era legal elites, Donohue and Stinneford implicitly accept their sources’ belief that ostensibly abstract terms like “unreasonable” and “unusual” should be read as legal terms of art. Stinneford discounts a contrary statement by Samuel Livermore during the First Congress because “Livermore . . . does not appear to have been within the mainstream of eighteenth-century thought regarding the usefulness of common law precedent generally.” Stinneford, supra note 335, at 1809. But while Stinneford is surely correct that Livermore was outside the mainstream of constitutional thought among legal elites, his view nonetheless reflected an important current in American constitutional thought.

Hay, supra note 152, at 9.

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue and Stinneford positions undisturbed. But that choice, it is worth noting, would require accepting Federalist views of the First Amendment, too, thus undermining any plausible originalist basis for modern speech law.