Wednesday, June 29, 2005

Originalism and the Sedition Act: A Cautionary Note

It's hard for us in our time to even conceive of such a blatantly unconstitutional affront as the 1798 Sedition Act being passed by Congress. Apparently the legal view of the press was different then. As Jeff Pasley relates, in the early republic, truth was not a "complete defense" against libel as it is today, but instead a printer could be successfully sued for printing defamatory charges against someone even if they were true and especially if they were a leader in government or society. (The thinking was that the defamation was harmful to the good order of society.) While certainly Charles Holt and some of his contemporaries saw the Sedition Act as a constitutional affront (Holt was confident that the bill would not pass), this view was not shared by a majority in the Congress that passed it. (See my review of Jeff Pasley's book on early American newspaper politics.)

This should be a cautionary note for those who promote an "originalist" interpretation of the Constitution. For one thing, the "original" Americans, including the original drafters of the Constitution, were not all of one mind on the subject of whether criminalizing criticism of the government violated the freedom of the press. How can "original intent" be an arbiter of Constitutional interpretation if the original "intenders" were not all in agreement? Moreover, insofar as the original intent of the First Amendment might have accommodated such a repugnant restriction on a free press, it should be clear to us now that such original intent can in some cases be flat out wrong.

1 comment:

KipEsquire said...

Good post. Originalism and textualism are so often on the same side of the fight (i.e., against consequentialism) that poeple too easily forget that they are not the same thing and that originalism can be just as susceptible to subjective interpretation as consequentialism. Pure textualism is far less manipulable for nefarious purposes.