Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.”  But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it.

Consider, for example, the Court’s latest First Amendment case.  The Court utterly disregarded the true meaning of that amendment, and instead applied a rule almost entirely unrelated to it.

The case was Snyder v. Phelps.  The father of a deceased U.S. Marine brought a suit under state common law against some members of the notorious Westboro Baptist Church.  As you may have learned from news sources, the Westboro Baptist Church is a tiny congregation with extreme anti-homosexual views.  The members regularly picket the funerals of soldiers, displaying signs that attack the military, the United States, and the innocent deceased.

Church members did so in this case, parading hateful signs on public property near the funeral.  They also launched unfounded personal attacks against the deceased both at the funeral and over the Internet. The serviceman’s father was so devastated emotionally that he sued them for damages, relying on claims for intentional infliction of emotional distress and for several other common law torts (civil wrongs).  The jury found that the father had been deliberately injured, and awarded him damages.

The church members demanded that the verdict be set aside.  They argued that the First Amendment Free Speech Clause protected them from liability.

Now whatever you think about Westboro Baptist or the father’s lawsuit, the fact is that the First Amendment, properly understood, was simply irrelevant to the case.  The issue should have been a slam dunk for the Court.

The text of the Free Speech Clause reads, “Congress shall make no law . . . abridging the freedom of speech.”  That is, the Amendment restricts actions of Congress.  Unlike other parts of the Bill of Rights, it applies only to the federal legislature, not to other branches of government.  It does not affect the common law, a system of case-by-case precedent built up by judges and juries over the years—a system expressly recognized as legitimate in other parts of the Constitution and Bill of Rights.

Moreover, the First Amendment says absolutely nothing about the states—and, in fact, during the 19th century the Court correctly held that the federal Bill of Rights controls only the federal government.  (States are bound by their own constitutions’ bills of rights.) True, some scholars argue that the later-adopted Fourteenth Amendment applied the First Amendment to the states, although others argue the contrary.  But the Supreme Court has never persuasively explained why it thinks the Fourteenth Amendment imposed the First on the states.  And even it did, that would bind only their legislatures, the state analogues of “Congress.”  It would not affect the common law.

There’s more: Although you would never know it to read Supreme Court First Amendment decisions, the Founders actually meant something by the phrases “freedom of speech” and “freedom of the press.” Those phrases had specific content.  What they meant is explained more fully in my book, The Original Constitution.  But what is important here is that they did not prevent civil lawsuits by innocents for harm inflicted by irresponsible people. Among those saying so during the debates over whether to ratify the Constitution was James Wilson, one of the greatest of the Founders.  (Wilson was a Framer, a leading Ratifier, and a distinguished lawyer whom George Washington later appointed to the Supreme Court.)

And as if that were not enough, during those debates the document’s supporters represented that tort and contact cases generally remained outside the federal sphere and were reserved exclusively to the states.

Yet in the teeth of text, law, and history, the Court held that the First Amendment prevented the serviceman’s father from collecting a dime.

How could this be?

During the Twentieth Century, “progressive” justices, ignoring text, law, and history, invented new First Amendment rules out of thin air.  In the 1960s and ‘70s, over the strenuous objections of moderate justices (there were no conservatives then on the bench), progressives largely re-wrote the defamation law that states had applied for two centuries.  In the course of their activity, they virtually destroyed the cause of action family members previously could use against those who maliciously “blackened the memory” of the deceased.  That may be why the family in this case resorted to claims such as intentional infliction of emotional distress.

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If we had any consistently originalist justices on the Court today, they would have voted to overrule the 1960s/70s decisions as a form of usurpation.  In other words, they would have applied the Constitution as the people adopted it.  Instead, in Snyder v. Phelps all the justices applied the 1960s/70s decisions.  There was only one dissenter, Justice Alito, but he merely disagreed as to how to apply them.

Last year when the Left was outraged because the Court struck down some restrictions on corporate participation in politics, I pointed out that the Court was just following the rules that “progressive” activists had invented throughout the Twentieth Century.

That’s what the justices did in the Snyder case, also. Far from the Court being conservative, the fact is that today there is not a single sitting Supreme Court justice who is a consistent originalist—not one.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Here are some quick comments on the Supreme Court’s opinion in Citizens United v. FEC:

* The Court voided a federal law insofar as the law banned independent election expenses by corporations and labor unions on behalf of a candidate. Direct corporate or union contributions to a candidate’s campaign were not at issue. Justice Kennedy wrote the opinion.

* The court split 5-4 on this point, with the justices of the so-called “liberal wing” dissenting. The dissent was written by Justice Stevens and joined by Ginsburg, Breyer and Sotomayor.

* On other hand, the Court upheld legal disclosure and disclaimer requirements as applied to corporations and unions. The court split 8-1 on this, with Justice Thomas dissenting. Justice Thomas reiterated the argument (accepted by the Court just a few years ago) that the First Amendment includes a right to anonymity, and he recited recent cases in which public officials and private groups had used campaign disclosure information to identify, harass, and injure donors with whom they disagreed.

* Both the Court and the dissent focused on whether the federal law at issue violated the First Amendment. No one addressed what I consider a more fundamental question – one the Court has never adequately examined: Is the Constitution’s grant to Congress of power to “regulate” the “Manner of holding Elections” broad enough to include this sort of campaign finance legislation at all? There is considerable Founding-Era evidence that the answer is “NO.” If that is the case, the law should have been struck down without even reaching the First Amendment question.

* Justice Stevens had an “original understanding” argument that, in my view, bordered on the frivolous. It was that the Founding Generation distrusted corporations and imposed extensive regulations on them, so the Founders would not have thought that corporations had any freedom of speech. However, the regulations in question were economic; Justice Stevens could point to no instance of a Founder suggesting that corporations were without freedom of speech. It is true that the Founders acknowledged the propriety of all sorts of economic regulations — and not just on corporations. But they singled out speech for special protection.

* The majority overruled the 1990 case of Austin v. Michigan Chamber of Commerce, which held that independent corporate and union expenditures on behalf of candidates could be banned. There was much discussion about stare decisis — the principle that case precedent should be respected. The majority and dissent analyzed the issue at some length, as did Chief Justice Roberts in a concurring opinion joined by Justice Alito.

* There is a special irony in the fact that the “liberal wing” of the Court voted to uphold this congressional regulation on speech. During the twentieth century, Supreme Courts with liberal majorities vastly increased the scope of the Free Speech Clause — (1) applying it against the states and in court proceedings, even though the wording of the First Amendment specifically says that it applies only to “Congress” and (2) extending “free speech” protection to such marginal activities as pornography and nude dancing. Now comes a case in which the very entity restricted by the First Amendment (Congress) tried to suppress speech at the core of the First Amendment (political speech) — but the liberal wing wanted to uphold the law.

* Montana Code Annotated Section 13-35-227 reads in part:

“Prohibited contributions from corporations. (1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.

“(2) A person, candidate, or political committee may not accept or receive a corporate contribution described in subsection (1). . . .”

It seems likely that this section will have to be narrowed so it is limited to a ban on direct corporate contributions to candidates.

* Most memorable quote from the case:

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”  — Justice Kennedy

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EDITOR’S NOTE: This article was originally published at the Electric City Weblog, and is  reposted here with the permission of both Rob Natelson and Electric City.  Thank you.
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Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment at the University of Montana School of Law. He is a recognized national expert on the framing and adoption of the United States Constitution. His opinions are his own, and should not be attributed to any other person or institution.

There is an on-going debate about the extent to the First Amendment bars congressional campaign finance limits. That debate is important, but it doesn’t address a more fundamental question: What empowers Congress to regulate congressional campaign finance at all?

Remember that the Constitution gives Congress only the powers the Constitution lists. All other powers are reserved to the states and people by the Ninth and Tenth amendments.

Regulation of campaign finance is said to be part of Congress’s power to govern the “Manner” of congressional elections under the Time, Manner, and Place Clause (Article I, Section 4, Clause 1).  That provision says the states shall prescribe “the Manner of holding Elections for Senators and Representatives,” but that Congress may (with one restriction) “make or alter such Regulations.”

This past summer, I investigated to find out what the Founders meant by the “Manner of holding Elections.” I found a lot of evidence, most of it unexamined by prior researchers. Interestingly, almost all the evidence suggests Congress was not given power to regulate campaign finance. That was a power reserved to the states and the people.

State regulations of the “Manner of holding Elections” were already quite common when the Constitution was adopted. Although the precise scope of the phrase “Manner of holding Elections” varied somewhat, its widest meaning was not broad enough to include campaign finance laws. And the Constitution’s use of the phrase was narrower than the widest meaning.

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As the Constitution used the phrase, it meant to regulate the voting: that is, to specify what officer was to oversee elections, who was to do the counting, how results were to be recorded, whether open or secret ballots were used, whether the winner needed a majority or only a plurality, and the like.

That’s not all.

During the ratification fight, advocates of the Constitution were insistent in assuring the public that this power of Congress was quite narrow. They explained that the power would be exercised rarely, and only to correct serious state abuses, and that its principal purpose was to enable the federal government to preserve itself if one or more states refused to hold federal elections.

To my knowledge, the Supreme Court has never reached a direct conclusion about this evidence one way or another.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.