The Invention of First Amendment Federalism

54 Pages Posted: 13 Aug 2018 Last revised: 20 Feb 2019

See all articles by Jud Campbell

Jud Campbell

University of Richmond School of Law

Date Written: July 27, 2018

Abstract

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, and never analyzed as a central feature of the opposition to the Sedition Act, the problem of partisan jury selection drove the shift in Republican thought. As originally understood, speech and press freedoms put juries primarily in charge of administering governmental limitations of expression. Following the development of political parties, however, Republicans perceived that the guarantee of a jury trial was nearly meaningless when federal jurors were hand selected by partisan federal marshals. In response, Republicans promoted a new reading of the First Amendment. Deeply suspicious of abuse by federal judges and juries, Republicans insisted that the First Amendment deprived the federal government of any authority to regulate speech or the press, even though analogous speech and press clauses at the state level left considerable room for states to regulate harmful expression.

This episode reveals a latent tension in eighteenth-century constitutionalism. Some threads of Founding Era thought embraced the notion of a document with fixed meaning, but other features encouraged constitutional evolution as conditions changed. Rather than seeking a principled resolution of this tension, however, Republicans developed entirely new arguments and then cast them in historical terms. The invention of First Amendment federalism also raises the possibility of a different path for modern speech doctrine, guided less by a particular theory of why speech is special and more by practical concerns about political entrenchment and politically biased enforcement.

Keywords: Freedom of Speech, Freedom of the Press, First Amendment, Federalism, Sedition Act, Originalism

JEL Classification: K10

Suggested Citation

Campbell, Wesley, The Invention of First Amendment Federalism (July 27, 2018). 97 Tex. L. Rev. 517 (2019). Available at SSRN: https://ssrn.com/abstract=3221500

Wesley Campbell (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
104
rank
253,831
Abstract Views
473
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information