Wisdom of Originalist Interpretation   Leave a comment

Generally, we learn what is wise by watching what is stupid. This is as true in viewing the Supreme Court’s decisions as in almost everything else. The Supreme Court hardly has a history of making profoundly wise decisions. We all remember Dred Scott v Sanford (1857) and Plessy v Ferguson (1896), but hardly anyone remembers the that Civil War and Reconstruction occurred between and yet different justices ruled very similarly in both cases because they were politically influenced. We now look back on these two decisions and shake our heads, wondering how our constitutional republic could have allowed the practices the Supreme Court said were okay. There are many other SCOTUS cases where the decision was stupidly influenced by politics (or fear of the president) and later had to be reversed.

Image result for image of shouting fire in a crowded theaterIn a case that would define the limits of the 1st Amendment’s protection of the right to free speech, the Supreme Court decided the early 20th-century case of Schenck v. United States.

Shortly after the United States entered World War I, Congress passed the Espionage Act of 1917, meant to prohibit interference with military operations or recruitment, prevent insubordination in the military, and prevent the support of hostile enemies during wartime.

Charles Schenck was an important Philadelphia socialist, general secretary of the Socialist Party of America, and opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section 1 of the 13th Amendment, which outlaws slavery and involuntary servitude (unless you’re a felon, in which case it doesn’t apply to you). Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet told conscripts that, “if you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and fellow socialist Elizabeth Baer were both convicted following a jury trial and sentenced to six months in prison. They appealed appealed their convictions to the Supreme Court where they argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the 1st Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the 1st Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s 1st Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

The Court found that context was the most important factor in alleged violation of the 1st Amendment. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech.

Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded  theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

Only a year later, Holmes attempted to redefine the standard in Abrams v. United States (1919). Justice Holmes reversed his position and dissented, questioning the government’s ability to limit free speech. He didn’t believe the Court was applying the “clear and present danger” standard appropriately in the Abrams case, so he changed its phrasing, writing that a stricter standard should apply, that the state can only restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

The “clear and present danger” standard would last for another 50 years, until the Court finally replaced it with the “imminent lawless action” test inn Brandenburg v. Ohio (1969). This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

So what does this hundred year old case have to do with us in 2017? People are still being charged under the Espionage Act of 1917. Since the decision in Schenck v. United States, those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Bradley Manning and Edward Snowden have also been charged under the Act.

My base point here is that when people insist that the Supreme Court must be free to interpret the Constitution in light of their personal feelings about it rather than the words written in the Constitution, I balk because I know history and I know the Supreme Court justices have been wrong in the past and will be wrong in the future. That’s why I value originalists like Antonin Scalia and Clarence Thomas. They assuage flavor-of-the-decade politics to rule based on what the Constitution says rather than what’s trending on Twitter this week. And, that is what the Supreme Court was supposed to do originally. James Madison, the principle framer of the Constitution, objected strongly to it being subverted to other purposes and we should bear that in mind.

There is an appropriate way to change the rules upon which our nation is based. It’s called “amendment.” It’s not an easy process. It requires agreement by two-thirds of both houses of Congress and three-fourths of both legislative chambers in each state. This assures that there is broad consensus across the entire country that we feel it is time to make a change rather than that a tiny minority has decided to bludgeon everyone else in the direction the minority thinks they know is best.

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