Thursday, August 6, 2009

Originalism and Symbolic Speech
Mike Rappaport

One of the things about being an originalist in constitution law is that it affects one's ability to opine about the Constitution.  When I am asked about the meaning of a particular constitutional provision, I am often forced to say, "I don't really know.  I haven't done the history."  By contrast, nonoriginalists who rely on policy analysis have a much easier time.  They can, by considering Supreme Court precedent and their policy views on the matter, often come up with a quick answer.  They seem to know more, but the way to put it is that for them there is less to know.

But there is another feature of originalism that compensates for the above downside. Because originalists believe that the meaning of terms depends on the historical meaning of the language, one can often change people's minds about issues.  The answer is more objective, depending less on people's policy views.  One does not have to convince someone to abandon their preferred policies, one need only show them that the evidence cuts against their view of the original meaning.

Exactly this aspect of originalism is raised for me by Eugene Volokh's recent paper about symbolic speech.  Eugene may not remember it, but we once had a conversation about symbolic speech, such as flag burning.  I argued that flag burning did not seem like speech to me, but conduct -- expressive conduct, if you will -- and the First Amendment only protected freedom of speech.  Eugene countered that it made much more policy sense to protect expressive conduct and I should assume the Framers were reasonable.  But I replied that expressive conduct raised additional problems -- since the conduct could cause much more harm -- and I didn't think one could impute to the Framers this policy view when they had used the words "freedom of speech."  I said to Eugene I might be convinced if he had evidence from the time that freedom of speech included expressive conduct, but until then I was skeptical. 

Well, Eugene has now supplied some of that evidence.  In a recent article and op ed piece, he has argued that the Framers' generation generally treated verbal expression and symbolic expression in the same way.   He writes:

The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.

Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior.

In a 1795 Pennsylvania case, the prosecution and defense agreed that erecting a liberty pole was the sort of thing to which constitutional free speech principles might apply. These tall poles, usually surmounted with a flag or a liberty cap, were originally a symbol of opposition to English government, but by the 1790s they had became a symbol expressing opposition to perceived domestic tyranny as well.

Evidence of this type is powerful.  While I haven't carefully studied his article or researched the area, my reading of his article convinces me to change my tentative view.  Previously, I assumed "speech" meant "verbal expression."  I now will assume, until I have evidence to the contrary, that it includes "symbolic expression." 

Originalism is a methodology that actually lets you change people's minds.

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Mike Rappaport


But where does it stop? What isn't capable of being construed as symbolic speech?

Posted by: dearieme | Aug 6, 2009 5:47:48 AM

Very simple, actually. Does the symbolic speech have a content-neutral effect which which the law may propertly control? Obviously, burning a flag in a crowded theater could be risking a catastrophe, under certain circumstances.

When you say that once you held that "expressive conduct raised additional problems because the conduct could cause much more harm," I hope that you had meant harm as conduct, and not harm as expression, for that would imply that the Founders had intended to allow only the least effective expression, while permitting Congress to abridge the more effective.

As always, we should examine our words, rectify the names, as Confucious put it. "Symbolic speech"--is not speech itself a symbol system?

Posted by: Lou Gots | Aug 6, 2009 6:55:44 AM

You can only change your mind if you, upon further research, discover that you had come to an incorrect conclusion to start with - one you would not have come to had the more comprehensive/competent research been intitally done.

I don't see how "expressive conduct" could not be deemed speech for 1st Amendment purposes - but do see where the conduct aspect (apart from the content of the expression) could be regulated - such as prohibiting flag burning within close proximity to the gasoline pumps.

Posted by: krome | Aug 6, 2009 12:37:24 PM

To Lou: yes I meant the conduct could cause more harm.

To Krome: I held my previous view based on limited evidence from the meaning of speech. I changed it when some more evidence suggested speech included symbolic speech. I think that agrees with your first point.

Posted by: Mike Rappaport | Aug 7, 2009 7:19:04 PM

Yes my name is actually Mike Rappeport, although as you can see I spell it slightly differently. And interestingly enough I also have a Yale post-grad degree, albeit mine is in engineering.
As to substance - In my view your post begins to clarify the real problem with originalism. Suppose for arguments sake I found one or two instances where the founders generation had not considered expressive conduct as speech. How would I then decide? Do I add up the number of cases on each side and go with the larger number? Or do I weight the instances, and if so does a comment by Hamilton or Madison for instance at the Constitutional Convention, or in the later debates over ratification, count for more or less than a case discussed in Blackstone?
Now with regard to expressive conduct perhaps there are no counter instances to Volokh's (although I wonder what evidence you had before his later communication) , but for instance surely when it comes to the definition of a militia, and the second amendment in general, there are all kinds of conflicting examples. Which brings us right back where originalism is supposed to get us away from; namely making personal choices as to what counts and what doesn't in our policy preferences.

Posted by: Mike Rappeport | Aug 8, 2009 7:34:36 PM

Mike: these are fairly standard problems. But the short answer is that one looks to the evidence and makes a judgment. Some cases are close; some cases are not close. The argument against symbolic conduct being protected was that speech meant speech. Eugene's article comes up with a host of arguments and evidence to show that the meaning of freedom of speech included expressive conduct.

If there was evidence on both sides, then that might make the issue difficult. But that does not justify looking at it as a matter of subjective policy preferences. An honest originalist uses the same methodology in all cases. And an honest originalist would have to argue that the case was close, however he came out.

Posted by: Mike Rappaport | Aug 8, 2009 9:04:24 PM

I don't think I've ever heard it suggested before that the problem with, say, "living document" constitutional interpretation is that its adherents are too unwilling to change their minds. If anything, "living document" constitutionalists are far more likely than just about anybody else to shift their views over time, as political expediency dictates. And either way, I don't see why the fact that adherents can be persuaded to change their views is a particularly attractive feature of a constitutional methodology. Interpretation based on the reading of entrails, for instance, doesn't become more compelling if the entrail-readers are willing to adjust their judgments based on their analysis of more animals' insides.

Perhaps what you were getting at was the introduction of an objective element to the interpretation process: originalism offers an objective measure of the legitimacy of an interpretation, based on its fidelity to the interpretations found in the historical record. Again, though, objectivity, while desirable, is not in itself sufficient to justify a methodology. The reading of animal entrails, for instance, does not become a more legitimate method for interpreting the constitution if the entrails-reading procedure is codified with perfect scientific rigor.

And that's the underlying problem with all the defenses of originalism I've seen: they all focus on the integrity of the methodology--how cleanly and rigorously one can discern the original meanings of the Constitution's clauses--without explaining *why* modern Americans should consider the common meanings of the Constitution's clauses to be binding on today's government. Instead, originalists tend to justify originalism itself by default: all the other schools of interpretation are mere stalking horses for political agendas, inextricably entwined with ideological dogmas, or insufficiently rigorous to avoid the taint of bias.

Well, as a constitutional minimalist--I consider Constitutions to be frameworks for structuring and preserving democratic government, not for constraining or overruling it--I consider originalism to be every bit as tainted by a political agenda as its competitors. I have yet to hear a single originalist say, for instance, "all things considered, the understandings of the Constitution current in the late eighteenth century, if followed, produce a government far inferior to the one we have today, but we are nonetheless bound as a nation to follow those understandings, and suffer the consequences."

We constitutional minimalists, on the other hand, can say with confidence that our views don't support any political agenda that couldn't as easily be undermined by our minimalism in short order, should the winds of public opinion change. To me, that's a much finer badge of integrity than any claim of historical objectivity or methodological purity.

Posted by: Dan Simon | Aug 8, 2009 9:35:44 PM

On the original meaning of the Second Amendtment, I invite Mike Rappeport's attention to the opinion of the Court in Heller concerning the lack of significance of the prefatory words of the Amendment.

It has been a shame and a rebuke to the academy and to much of the legal profession that the fundamentals of consruction had been disregarded for so long with respect to the RKBA.

Posted by: Lou Gots | Aug 9, 2009 6:17:05 AM

I would suggest every case of interest is close in the sense that there were proponents of both sides in the late 1700's. For instance, there was hardly much agreement over what constituted protected speech let alone the legitimacy of expressive conduct

The Sedition Act (officially An Act for the Punishment of Certain Crimes against the United States; ch. 74, 1 Stat. 596) made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials. It was enacted July 14, 1798, (Wikipedia)

You said, in a close case, "on looks to the evidence and makes a judgment". My question is simply, Aside from your own preferences, what is the basis of that judgment?

Posted by: Mike Rappeport | Aug 9, 2009 6:35:33 AM

Dan, you have misunderstood my post. Two points:

First, I was not arguing that the objectivity of originalism was the primary benefit of this methodology. It was just a feature of originalism. And nonoriginalists might change their views, but they do so for their own policy reasons, not because you convince them they were wrong.

Second, I do argue that we are better off following the 18th century constitution. In fact, I have written several articles to that effect and am publishing a book on it. For a brief discussion of the argument, see

Posted by: Mike Rappaport | Aug 9, 2009 12:24:45 PM

Mike: My response will have to be brief. In my view, one looks to the original meaning of the words as they would have been understood at the time. That involves original word meanings as well as the interpretive rules that would have been used at the time. One also looks to how people at the time interpreted provisions, as some evidence of what they meant. In the end, one weighs the strength of the evidence on both sides.

The Sedition Act was a difficult case in some ways, but resolving it does not depend on political preferences. It is my view that in many respects the Sedition Act was probably constitutional. Now, my political preferences are opposed to that position. I think allowing such statutes is a bad policy idea. But I believe, based on the historical evidence at the time of word meanings, etc, that much of the statute was probably constitutional.

Posted by: Mike Rappaport | Aug 9, 2009 12:52:10 PM

Mike, I'm not sure what you think your second point is supposed to prove. Surely you're aware that non-originalists routinely expound at length on why their approach to constitutional interpretation is pragmatically as well as theoretically superior to the alternatives. Yet that doesn't prevent you (or me) from suspecting that they're mere partisan hacks who "change their views...for their own policy reasons, not because you convince them they were wrong."

So why should I react any differently when you hold up your own set of pragmatic as well as theoretical arguments for the superiority of your originalist approach to constitutional interpretation--which happens to align with your libertarian policy preferences every bit as neatly as non-originalists' theories of interpretation align with *their* policy preferences?

Posted by: Dan Simon | Aug 9, 2009 10:22:14 PM

Dan: You asked for a reason and I gave you one. I am a little baffled by your response. In any event, originalism does not always line up with my views. See, e.g. my comment above about the Sedition Act.

Posted by: Mike Rappaport | Aug 10, 2009 12:11:31 PM

Yes, Mike, I understand--originalist methodology allowed Eugene Volokh to persuade you to be even more libertarian than you used to be. Again, from an outsider's point of view, this is no different from a leftist's gushing testimonial that Lani Guinier's legal writings opened her eyes to the possibilities offered by even more radical racial preferences.

If you want to brag that "[o]riginalism is a methodology that actually lets you change people's minds", while "nonoriginalists...change their views...for their own policy reasons, not because you convince them they were wrong", it might work better to choose an example that doesn't reinforce the image of originalism as mere legal window dressing for dogmatic libertarianism.

Posted by: Dan Simon | Aug 10, 2009 10:26:46 PM

Exactly this aspect of originalism is raised for me by Eugene Volokh's recent paper about symbolic speech.
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