S8E4: Jonathan Gienapp

This is Larry Lessig. This is episode 4 of the podcast Another Way, season 8. We've been covering the litigation, uh, will eventually end super PACs, started in an initiative in Maine in 2024 when 74.9% of Mainers passed that initiative to end super PACs in Maine. That's being litigated right now, and it is to be heard in the First Circuit Court of Appeals at the end of July. Now, one of the core arguments that is being made in this case, really for the first time ever in a campaign finance case, is an argument grounded in a theory called originalism. Originalism is the theory that conservatives have brought to the interpretation of the Constitution. I clerked for Justice Scalia way back in the day, uh, and he— I was his token liberal clerk in the days when he had token liberal clerks. Um, but Justice Scalia is perhaps the most prominent and famous originalist, and he began a movement which now claims 6 justices on the Supreme Court who say that their job in interpreting the Constitution is to interpret it according to the original meaning of the Constitution. Well, what is that? When we think about the First Amendment, what's the original meaning of the First Amendment? Because the most striking fact about the core case that created campaign finance jurisprudence, the case called Buckley v. Valeo, decided in January 1976, is that that case doesn't even deign to explain what the original meaning of the Constitution was. Didn't even think it was important. Instead, that case comes from a time when the court didn't feel constrained to link their opinions to the original meaning of the Constitution, and so now we live in a different time. And in our time, the question we're gonna talk to Jonathan Ginepp about is whether the original meaning of the First Amendment would give the people of Maine or Congress of the United States the freedom to limit the size of contributions to independent political action committees. Stay tuned. Okay, so Jonathan, let's start by you helping us understand how the framers would've meant their Bill of Rights to constrain the acts of government? I mean, why did they pass, insist on passing in many contexts, a set of rights if those rights don't actually stop government from doing something?

Yeah. So I think we can't really understand what they were up to unless we start by taking a step back and making sense of how they understood the concept of liberty more generally. So the big issue here, the reason why this takes a good deal of thought and work is the founding generation thought differently than we did about core constitutional concepts. None more importantly, I think, than liberty. By and large, speaking in sort of broad generalizations here, modern constitutional law presupposes what's often referred to as the liberal theory of liberty. Which understands liberty essentially as non-interference. You are free as an agent in the world if things external to you do not prevent you from doing stuff. And I think that has a lot of intuitive appeal to people. I'm free to walk through that door unless something coerces me and prevents me from doing so. Um, this understanding of liberty tends to view the relationship between government regulation and individual liberty in zero-sum terms. You increase one, you decrease the other, because everything's based on measuring government coercion in regulating your conduct. In the 18th century, and the founding generation was not unique in this regard, that is not how they conceptualized liberty by and large. They didn't see it as non-interference. They saw it as instead non-domination, by which was meant The key question was not, are you being interfered with? The key question is, who is doing the interfering and with what legitimacy? And the crucial idea here was those who were free were those who regulated themselves through self-government, and those who were not free were subject to an alien will, the coercive power of somebody who could act utterly independent of their input. So for the founding generation, what really mattered is not how much regulating or coercing is— are the political institutions doing, but do they in a meaningful sense represent the people? Because if they represent the people, then you are regulating yourself. So you're, you're in a position of political freedom. Um, so you can have a situation where a representative government engages in a lot of regulation, and that's— then that's a state of freedom. And a monarchical government doesn't actually coerce you at all but has the potential to, and you're a political slave. So it's not about the measure of coercion, it's about whether or not the government is truly representative or not, whether those making laws that bind you are an extension of you. When they said no taxation without representation, the slogan that became the basis of the protest that leads to the American Revolution, they didn't say no taxation. They said no taxation without representation. They thought the kind of taxation being levied against them was entirely appropriate if administered and issued by the colonial legislatures because they were represented there. The problem was not that Parliament was interfering in their lives. The problem was Parliament didn't represent them. So we have to start from that baseline. We have to understand that liberty was not understood in terms of non-interference. It was not a measurement of coercion. It was instead a way of thinking about whether or not the laws that governed you were meaningfully an extension of your own consent. And that ultimately drew the line between state of freedom and a state of non-freedom. So when we talk about adding bills of rights to constitutions, be it at the state level or the federal level, we cannot understand what effect they have, what they're trying to accomplish, what they're about, unless we start with that different understanding of liberty.

Okay, so they have a conception of liberty which is about representative government defining the a world of freedom they would have, not about rights that would be used against a government. That's, that's the essential point here. So I love this way of linking it to the slogan, no taxation without representation. The expression of liberty was, we participate in the creation of any scheme of taxation. That's part of our role as citizens. It's not that We don't want to have taxation, even though I'm sure many people don't want to have taxation. Now, importantly though, your writing and the writing of others like Judd Campbell or Jamal Greene have emphasized the difference between the different kind of rights that get created in our Constitution originally and why some of them might be different in the way that they constrain government. So help us understand what, what that difference looks like in the context of the Bill of Rights?

This is extremely important because rights were not rights were not rights. You need to be very mindful of what kind of right people are conceptualizing and is being referred to in the Bill of Rights or any other constitutional text. So as people in the 18th century thought about what does it mean to be free, they also thought about where do fundamental rights come from? What is their basis? Uh, and this grew out of what was the standard sort of dominant move among those who were pushing back against non-consensual government in the early modern period, especially in Europe, uh, which led to what was often referred to as the social contract tradition. This idea of saying, how do we imagine the basis of legitimate government being predicated on consent rather than force. Okay, well, where does government come from? And this, this, um, fueled a thought experiment of sort of a hypothetical understanding of if all people are born free and equal in the state of nature, how do we get from there to legitimate rather than illegitimate government? Since most government was illegitimate, it was somebody claimed it by birthright and did what they pleased. Okay, um, and the idea was, well, you start in a condition of natural liberty, with a series of what you might call natural rights, things you can freely do in the state of nature. These were different kinds of liberty. The right to self-defense, the right to say whatever you wish, the right to move around from point A to point B as you wished were different than the kinds of liberties that could only exist in a state of civil society, like a right to a jury trial or, um, you know, a right to not be imprisoned without charges being brought against you. Those, those are not things that happened in the state of nature. Those are things that happened in civil society. So they drew a distinction between, well, what are our natural rights, things we can exercise completely independent of society, as opposed to civil liberties, or things that really emerge once we've established society. And this jived nicely with how they thought about the steps that led from the state of nature to legitimate government. And they always spoke in terms of two steps, which was really important. First step is a group of people leave the state of nature and form a political society, a polity, a community, a we, you know, a group that says this is going to be, um, the community that we live in. And they called that the social compact. And then second, people within that social compact set up an institution of government or a constitution. So there were sort of two binding agreements that became the basis in the sort of hypothetical thought experiment of legitimate government. And along the way, essential fundamental rights were protected, some of which were those natural rights I spoke to, some of which were those civil rights I spoke to, and generally speaking, they thought that natural rights were retained by establishing representative institutions that would be responsible for legitimately regulating them. So a natural right was not retained by giving it to people and saying, whenever you don't like a law, you can go to court and get it struck down. It was, it was quite different than that. It said your natural liberty is retained, your natural right to self- defense, or to free speech is retained if the system of government that this set up is genuinely representative, and when it regulates your rights, does so in the, in the interest of the common good. Now, certain civil rights like, um, bars on ex post facto laws usually place more determinative limits on what government could do rather than saying it's left to the people's representatives to really figure out how to regulate this right. Prohibitions like that, that usually came in the form of civil rights, placed stronger determinate limit— limits on what the government could do. But again, the idea was the people had themselves laid that down by agreeing to it in the social compact and sometimes expressly enumerating it in a constitution. It was sort of a customary principle that was seen as so essential, like a right to trial by jury, that the people had made it very clear that government should not abridge that in any meaningful way. But that was sort of the general context in which they drew this distinction between these two kinds of liberty.

Okay. So the ones that they create as kind of positive rights inside the Constitution, like the ex post facto or the right to the jury. Those you're saying, um, a court, for example, could look at a particular action by the government or by the legislature and very easily determine that that action was inconsistent with that commitment. So for example, if, um, a court— if Congress passed a law that was an ex post facto law, which is basically a law that makes criminal something that was not criminal when you engaged in it, um, uh, and then a court looked at it, the court could say, well, Congress passed this law, but that's flatly inconsistent with the rule that we the people adopted in the Constitution when we said there could be no ex post facto laws. And so you could imagine whether they would have the courage or not, you can imagine them having a fair legal basis for saying that this law of Congress is unconstitutional. But by contrast, what you're saying is that for these natural rights, the rights which come to us by, you know, natural reasoning. Basically, you know, a Somerset lawyer's son, John Locke, writes them down in his treatise as the sort of things that would any free person would have, and therefore, the things that we're gonna protect inside of our Constitution. Those rights were rights to have the freedom that the representative body itself articulates. So one way to understand that is those rights are the rights to have have the freedom that Congress itself establishes, so long as Congress remains a representative body. I mean, if Congress were not a representative body, then it wouldn't have the freedom to set those rights, right? But if it's a representative body, it gets to say the scope of that freedom, and it gets to limit or extend that freedom as it thinks right. Is that a fair summary of the difference I think so.

We would just, in the context of the late 18th century, be mindful of both federalism. So a bunch of people would've agreed with everything you said, but then the debate would not be what can government do? It would be which government can do it? Is it better the state legislatures or Congress? And then also the question of how clearly determined are certain civil liberties that it's appropriate for an unelected judge to ultimately make the call. Some people might say at the time, uh, the, the judicial role, um, doesn't quite reach something that's enough in doubt. But then, but the, your point would still stand. A different institution, perhaps a jury, um, would be the one that would, that would nullify or set aside what a legislature has done.

So, so let's talk a little bit about that, because I think we've forgotten or maybe never learned the kind of central place of juries in their thinking for how liberty was protected. So play out a kind of scenario where the jury would be the ultimate judge about the scope of some freedom, some natural rights freedom.

Yeah. So again, and this connects back to what are bills of rights doing in constitutions? So a Bill of Rights could take a principle of natural liberty and give it a lot more concrete legal effect. In other words, it could take the broad principle of freedom of speech and lay out very specific legal rules in the Bill of Rights explaining how that right will be protected. That places real limitations on what the people's representatives can do. Very importantly, our Bill of Rights, because of James Madison and his friends in the First Congress, does not read that way for the most part, including the First Amendment. They're broad declarations of natural rights principles. So that means it leaves it to some other institution to make the key legal determinations of exactly what kind of legal rules will essentially determine the scope of the right. Now, the First Amendment makes clear you cannot abridge the right. That was always assumed. You couldn't just annihilate freedom of speech. Everyone understood that that kind of regulation was not a regulation but became something far, far greater than that. But in terms of whether or not seditious libel, say, is or is not consistent with this natural right protected by the First Amendment. The standard thinking was that it would ultimately be up to juries hearing these kinds of cases to make that difficult call about whether or not the conduct fell on one side or the other of a reasonable exercise of the liberty. And this would be an extension of the people regulating their own liberty because juries we now think of as procedural safeguards. And with good reason. And it wasn't as though they were not thought of that way in the 18th century, but they were primarily thought of in ways that are very foreign to us as representative institutions. I mean, now when you— if you're called to jury duty, the first thing they want to know is, do you know anybody involved in this case? The assumption in the 18th century was the reason you were in a position to make a good judgment is because you did know people. You were— it was the community policing itself and judging character and conduct. Uh, you, you had the confidence that these, these ambiguous, underdetermined legal principles would ultimately be judged by a jury of your peers. So the, the founding generation— I mean, James Madison obviously does not think that it is important to, uh, pin down the precise contours of what what free speech will look like under the First Amendment. He expressly chose not to do that. And it wasn't a particularly big move at the time because that's what most rights declarations in most constitutions did. It left it to others who represented the people and could speak for them, juries being a great example, to say, well, the individual in front of us who is charged with speaking in a particular way that the government claims is threatening or will undermine it or something, to ultimately decide whether or not that is the case. And through the process of doing that, many, um, instances over time is how you flesh out the scope of the right. First Amendment could have more clearly sketched the scope of the right. It chose not to. The Seventh Amendment has more determinative legal rules. It has an amount in controversy requirement. Uh, that is a very precise legal rule. The First Amendment has none of that. So it leaves it to others like juries to do that.

Okay, so that's really helpful because right now when we think about the First Amendment, obviously there's somebody who's supposed to be protecting us under the First Amendment, and that's a court, judges. So ultimately the Supreme Court is supposed to make a rule that says, yes, you're allowed to have violent video games because the First Amendment protects your right to have violent video games. Um, and so that's the court acting as our protector. But what you're saying is, at the framing, um, the primary protectors, the people who were primarily charged with determining what the scope of this freedom would be, would be juries, um, and Congress that might pass laws that, uh, that were deemed to be expressions of the scope of freedom that thought was appropriate. So the question is not whether there will be members of government who ultimately draw the line. The question is, who are the members of government who will draw the line? And the framers wanted to empower citizens in juries and legislators and didn't have in their head primarily judges. Now, was there anything that the legislature could have done that you think judges might have thought, okay, this just goes too far, we don't have to send this question to a jury, you've really violated the freedom of speech by passing this particular kind of law?

Well, that becomes a subject of debate quickly. Um, so different people have different ideas because the basic principle is judges find law, they don't make it, right? Juries can make law, legislatures can make law, judges can never make law. All they can do is enforce settled law. So they also can't settle law broad legal principles that are unsettled. So that's exactly why if the principle is unsettled and left that way by the Constitution, even if it enumerates a right, it is left to an institution that can appropriately settle it, like a jury or a legislature. Now, there are a variety of different ways that judges could find law that they took to be settled. For instance, they could claim there are certain customary principles.— that usually take the form of positive common law rights that are not just so clearly understood to be part of our constitutional tradition, but whose legal contours over so many years have become reasonably well understood that we judges can enforce those against the people's representatives because we're not actually enforcing— it's not our own judgment against the people's judgment. It's enforcing what we take to be the people's longstanding judgment against what a recent legislature had done. And for instance, in the case of Calder v. Bull, which considered ex post facto laws, Justice Samuel Chase essentially made that argument. He said certain laws so clearly violate the first principles of the social compact, as he put it, that we judges can, in those instances, really step in enforce them. We have a role to play in enforcing things that are that clear. Justice James Iredell on the other side said, I don't know, we're still talking about general principles of natural liberty, which I accept exist and are an important part of our thinking. But I, James Iredell, as a Supreme Court justice, it just has to be a whole lot more clear than that for us to enforce it. So there's a debate there at the exact same time as when the Federalists passed the Sedition Act of 1798, the first big episode post-ratification of the Constitution over regulation of speech and press in this country. Um, and Federalists certainly suggested that judges could play a stronger role in enforcing it than others might have been comfortable, but that was the argument they made. They didn't make a new argument that said, well, uh, judges just have an important role to play when when things are enumerated in a certain way in the Constitution. They instead said, when things are particularly clear and settled and obviously violate principles, well-known principles of freedom of speech, well, judges, because it's so clearly settled, can play a role. But there's also a reason why in the Sedition Act of 1798, Federalists made a point of saying juries would be the primary one to enforce these limits because they recognized that that was understood to be the standard way of doing things. —at the time.

So there were some things then, maybe, for example, a law that said you can't publish an article in a newspaper unless you have permission of the president, prior restraint, some things that were so settled in English common law tradition that a judge might have felt entitled to say, look, I can tell you this is part of the contours of what freedom of speech means. I'm not deciding this is what freedom of speech means. I'm reporting to you that this is what our tradition means. And for some things that would've been clear enough. What's interesting with the Alien and Sedition Act is from our perspective, it seems clear, obviously, that it's unconstitutional. But clearly at the time, there are a bunch of people who thought it was perfectly constitutional to at least attack people who said false things about the president. Or about the government. So it was a contested matter. And even those who opposed it, you didn't see people like Jefferson saying, let's get to the Supreme Court. Not that a Federalist Supreme Court would've done him much good, but you didn't see him saying, let's get to the judges and ask the judges what they think. He's trying to invoke a political process to respond to a political mistake about what the scope of protection would be for freedom of speech. Is that right?

Absolutely. And your point about prior restraints is of essential importance. That is a clear example of a principle that is so settled, that is understood to be so baked into the right, that anybody with requisite authority could enforce it. Um, but that doesn't mean, you know, if prior restraint means you can't prevent people from publishing, but the open question being, if they then do publish something that might be false and might be seditious, who gets to make that determination? That's when you go from settled to unsettled. Your points about Jefferson could not be more important. We could, we start by the, with the fact that Jefferson fully supported the legitimacy of sedition acts in the states. The federal government wasn't the only one that passed the Sedition Act. Many states did. And Jefferson was quite clear that state governments could do that. This was not some general abridgment of, as it is often understood today, wow, the Federalists so obviously violated core free freedom of speech, how wonderful that Jefferson and others stood up to it. Jefferson's whole point is the federal government can't do this. The state governments can though, because the state governments are adequately representative that they could be trusted to draw these lines. Now, a big part of what concerned Jefferson and his friends, you mentioned judges, was the other part of court. Getting back to juries. Um, if the federal grand jury process was working in a way they thought was legitimate and therefore met that representation test, they might have ultimately reacted differently. But they believed, and not without good reason, that Federalists had essentially found a way to corrupt the federal grand jury selection process and stack those juries with Federalist sympathizers. So this became an example of what do you do when the institutions that are supposed to be drawing the lines and making the determinations and making the hard calls are corrupted, don't meet the standards of Republican self-government. Well, then you start innovating and thinking about, well, what other institutions do meet that test and how do you challenge them, which is how you get the Virginia and Kentucky resolutions in part, which was Jefferson, Madison, and other Republicans using state legislatures to essentially protest against the Alien and Sedition Acts. Jefferson, his initial draft suggests a right on the part of state governments to nullify federal law, anticipating the nullification controversy of the antebellum era. Perhaps it was Madison, who knows, who said, let's cool our jets a little, maybe take that word out and just say that we have an essential right to protest about it and to declare certain federal acts unconstitutional. And that was greeted as heresy by the Federalists who began saying that, no, it is the federal government's ultimate right to make these determinations. But it is part of this ongoing conversation about how we settle the unsettled features, the broad, general, unsettled features of our constitutional order. And for the founding generation, as opposed to us, we think the important question is how do you interpret Constitutions, their key question was always, who gets to interpret them? Who gets to make the determination? They assumed a lot of stuff would be unsettled and underdetermined. It was worked out over time, and then it just became a big question that they deeply debated over who could do that. But we make a huge mistake when we think that Thomas Jefferson is anticipating us and our modern libertarian free speech tradition. He is instead making a different jurisdictional argument about the wrong institutions or institutions that usually are pretty good but are corrupted are the ones deciding the contours of freedom of speech. Different institutions that are closer to the people, that speak better for the people, they ought to be given that right. But he is definitely not rejecting the idea that the people themselves will be making those determinations in an ongoing process.

Right. So you could imagine a modern-day Jeffersonian Lawrence Lessig, who looked at Congress itself and said, geez, that institution has become deeply corrupted. So I don't really trust that institution anymore. And so the conversation about whether the representative body that is supposed to be making the representative judgment about what the contours of our rights should be is a constantly open question. Like, we should always be asking whether the institution is living up up to its representativeness. But what's striking in the story, of course, is that the one institution not meant to be representative in the sense of constructing or deciding what law should be, namely courts, was not to be in the business of making, of drawing these lines. At the most, what the court was supposed to be doing was reflecting what had become settled. And what had become settled was not something about the last election. Was something about a long period of time in the past. Now, you know, I think most people could hear this and they could say, wow, that's kind of weird that the framers had that view. I mean, it's kind of the fox guarding the henhouse. So you're saying essentially Congress gets to pass laws about free speech that affect free speech, but those laws are constitutional because it's Congress that passed them. I mean, what kind of First Amendment is that. And so when people, I'm sure you've hit that, you know, as you teach this because you're obviously teaching people who are thinking about it, you know, if you teach undergraduates thinking about it for the first time, what is your reaction to them as they sort of say, this is kind of a crazy system?

Yeah. And that is how many people react. And that is a reasonable intuition. I totally get it. I think the first move is to flip it on its head. And say, well, why is the alternative safer or better? And you start to appreciate, well, there's no escaping what is the essential problem here, which is that things will be done on which reasonable people can disagree that broad generalities in the Constitution do not directly, um, comment on in the sense of making it very clear. To people from all different walks of life and who hold different values exactly whether the conduct in question falls on one side of the line or the not. So you need somebody to make the determination. Well, who, who should do that? And if it's, if it's courts, why, why are they better suited to, to make those determinations? Won't they make determinations, as we see constantly, that lots of people think are completely off base and terrible? Won't they make decisions that lots of people worry, um, speak to a kind of corruption in the sense of they're, they're, they've just allowed their own personal preferences and values, even if they don't, they're trying not to, to, to determine, um, these, these contested matters that don't have easy answers. Isn't that why we are so exercised all the time about what they're doing? Um, that doesn't mean that giving them the power to do it is automatically wrong. And that doesn't mean there aren't benefits that come from that, but it's— it hardly is an escape from that idea of fox guarding the henhouse, because it's still fallible people who ultimately aren't calling balls and strikes in baseball. They're trying to understand what a broad principle of freedom of speech does in a very, very complex world where reasonable people would draw the lines differently. And then I say It is not as though judges could not have been empowered at the founding because the whole point is here, judges have full authority to enforce settled law. So if you want to empower judges, if that was your project in the late 18th century, well then you, when you enumerate rights, you don't simply enumerate them. You lay down clear, concrete rules that much more precisely sketch the contours of the right. Thomas Jefferson, who never thought judges should interpret anything, he was deeply skeptical of judicial power, thought this was the only way to, um, to ensure that judges would, would, would keep legislatures in line, that you needed to write a First Amendment that laid out in very precise detail exactly what printers could do, when, where, how, on what day, when the moon was in what cycle, right? And he basically told James Madison this was his preference when he said, "I would really like the federal constitution to have a federal bill of rights." James Madison chose not to do that. He instead chose to do what was found in almost all the state constitutions, which was to have a declaration of rights, essentially declare broad principles of liberty and not offer any of those concrete determinations. So I then say, well, the right question is not, should we have a Who should enforce the First Amendment? It's you, my students, or others I'm talking to, from the perspective of late 18th century, seem to be objecting to the kind of First Amendment we have, that it just merely declared a broad principle rather than laid down in more detail exactly what one could— what that principle meant in practice and what kinds of regulations were or were not legitimate. Um, people can do that with legal text. People have done that for for a long time. People do that, have done that in the United States Constitution. We have a lot of determinative rules, the legal content of which is so clear that anybody can enforce it. And then the real debate is, do we like the rule? The First Amendment is a different kind of constitutional technology because James Madison and others chose not to more concretely determine it. So I then, I say, well, does this mean you want to amend the First Amendment or or, or change it. Because from the standpoint of the founding, they said, we have, we have by definition left it to institutions moving forward to do those determinations. We have essentially admitted that the scope of the right is not clearly marked down. And then it just becomes a question of who's best suited to do that. I, I think there's an argument to be made. I get why after 100 years we like the idea, and a lot of incidentally of the United States Supreme Court doing a lot of that work, but it also seems like a lot of people aren't too thrilled about that. And second of all, I, I just would— we should at least have the conversation. Why are they better suited than all the other institutions? We should at least start by trying to understand why the founding generation never considered the idea that that would be the institution that played the leading role in the process. Never considered. Never. Yeah.

I mean, what's striking about this debate, of course, is that it's as old as the Constitution. You know, in the middle of the last century at the Yale Law School, Alex Bickel and his best friend, Robert Bork, were quite exercised about the then Supreme Court articulating a whole range of what they called new rights conflicting with the acts of democratic legislatures. And what they said again and again is, look, look, if you don't point me to a place in the Constitution that establishes this right, some reason for me to believe that we the people in some act of constitutional lawmaking elevated this right so that it restricted democratic legislatures, And just sit the frick down. You have no job here if you can't point to a place in the Constitution that's creating this right. I mean, of course, that debate at that time sounded conservative in the sense that it was against rights that liberals seemed to like, but it expressed this very fundamental point about democracy. Constitutions constrain democratic legislatures. Legislatures. But if we're going to respect the idea of democracy, they should only constrain democratic legislatures when you can honestly say that we the people rallied in some supermajority way to this idea. So, like, the Constitution's filled with stupid ideas that we the people rally to. For example, 2 senators per state. There you are in California, which gets as many senators as Wyoming, which is just ridiculous. And of course, Madison thought it was ridiculous. It was a hotly contested issue, but that was the deal. The deal's the deal. And we the people ratified the Constitution through state legisla— through state conventions. And this is the rule that we live by. And so if the state of California convinced Congress to give it a new senator, um, I think even the Supreme Court should be able to say, nope, I'm sorry, you are acting against a clear resolution of We the People. And so therefore, if you want to overcome that clear resolution, that constitutional commitment, go amend the Constitution. Maybe you can't because of Article V's embedding of this principle of equal representation in the Senate, but maybe you can, who knows? But unless you do have a clear principle, then just sit the frick down. And that I think is what makes this current debate so interesting because, you know, now it seems like it's the liberals who are standing up and saying to the court, like, where does this come from? Where does this whole mess come from? And no context, I think, is more ripe for this conversation than the context of campaign finance and the First Amendment. You know, campaign finance, as far as modern campaign finance goes, was born in 1976, exactly 50 years ago, and born in a case called Buckley v. Valeo. And Buckley v. Valeo was a case reviewing Congress's effort to try to restore some integrity to the election process because America had just seen these scandals involving Richard Nixon basically being bought, uh, in order to flip his policy on milk subsidies. So, so we were pretty clear that there's that, um, something rotten in Denmark, and we wanted to create a new regime that would try to restore confidence. And so Congress passed a pretty extraordinary comprehensive set of regulations to try to improve the public's confidence, and that included a public funding system for president so candidates for president wouldn't have to rely on big funders to be able to get elected president. It included limiting the amount of money that members of Congress could spend in their campaigns. It included limiting the size of contributions to members of Congress. It included limiting the size of expenditures for people who are spending money independently of campaigns. The regime of regulations— and it had a whole bunch of, like, disclosure, all sorts of other stuff. It's a massive regulation speculation. But the regime was plainly designed to say to America, look, you can trust your politics again. People are not going to be buying off your politicians because we've addressed that. So the Supreme Court in 1976, in a 144-page per curiam decision, Zeus-like, standing on Mount Olympus, like, just declares, here's what the First Amendment shall mean.. And what's striking about the opinion is nowhere do they even try to explain to us what the First Amendment was written to do. Like nobody even bothered to do what you've tried to do, which is to explain what were they trying to do with the First Amendment? Instead, they just declared these are the principles of the First Amendment. The principle of the First Amendment is the only basis you have. It wasn't clear they said only, but that's the way it's been interpreted. The only basis you have for limiting political speech is the risk of something called corruption. And by corruption, they seem to be referring to just quid pro quo corruption, this for that corruption, the kind of corruption and bribery. If you're not trying to attack that kind of corruption or the appearance of that corruption, then you're not allowed to restrict political speech. And by speech, they meant both spending your own money to say something, but also contributing money to somebody else so that they could spend something. And so when they applied that principle, this new First Amendment principle that, you know, the framers could have written in the Constitution, but they didn't— they, when they applied this new principle, they said, well, public funding of presidential campaigns is fine, that's not restricting anybody's speech, so we're all for that. They said limits on the size of expenditures, that violates the Constitution because there's no, there's no reason why corruption comes from you just spending money to get elected to Congress. Um, they said limits on independent expenditures are unconstitutional because if they're independent, that means they're not coordinated. If they're not coordinated, there's no risk of quid pro quo corruption. Uh, and so that fact that there isn't coordination, uh, is the reason why you can't limit them. And they— the court said if they were coordinated, then they're treated as a contribution. So then they'd be limited by the size of a contribution. And then the final thing they said was, it's okay to limit the size of contributions because everybody knows if you have a system where people can contribute millions, in the modern era, billions of dollars to support a candidate, we know that that candidate's gonna be, seem corrupted relative to that candidate. So that was their scheme, all flowing out of this new principle that they have articulated, articulated first time in American history that this is a constitutional principle under the First Amendment, restricting the scope of Congress's power to legislate about elections. And for 50 years, we've been trying to work out the consequences of that principle. And there have been case after case after case, and the court has continued to articulate these really fine lines about what really is quid pro quo and how far does that principle extend. They just decided a case about, can it restrict a political party's ability to coordinate with independent political groups? It's just a huge mess. But from the perspective of the originalist, from Bickel and Bork's perspective, I think you've gotta say, where the heck do you get off, Supreme Court, constructing this whole principle? Or more precisely, when did we the people ever stand up and unite in a supermajority way to say that the only way that the Constitution permits or will permit Congress to try to assure we have an uncorrupted system is if they comply with this weird, complicated rule of quid pro quo. And I would think that the framers, from that perspective, would be kind of aghast that we have handed over to our modern Platonic guardians the ability to craft these fundamental rules restricting restricting the scope of the democratic branch. Is that fair? It's a little bit of a tirade, but—

It was a good tirade. You should've kept going. It was excellent. And I think it gets at the heart of the matter. So first-wave originalism was born out of a desire to protect democracy from judicial activism, to protect the voice of we the people from unelected judges who were making, or essentially reading, the argument went, their values, preferences, and judgments into the Constitution, rather than respecting what we the people had actually laid down. Well, a lot's changed since then. We now have an originalist majority on the court. And what they would claim to justify their, um, when they strike things down is unlike the prior court, uh, which was just legislating their values, the justices now would claim that they are enforcing the people's original meaning against current practice. But this is, this is exactly where the things we've been talking about come so sharply into relief. In making those judgments, and this is true of many of the rights provisions, it's certainly true in Second Amendment cases, but it's absolutely true in the First Amendment cases too. In making, in exercising that power, judicial originalists today are already assuming all of these things about the nature of constitutional rights and the kind of liberty that was that was entrenched in the Constitution without ever identifying it, acknowledging it, justifying it. So the logic usually assumes very specific answers to where constitutional rights come from, what purpose they serve, and who gets to define and enforce them. And we can pull together everything I've been talking about to speak directly to, to support your proposition, to see the disjuncture here, which is so profound because Unlike, you know, late Warren Court and early Burger Court justices, um, current justices claim to only be doing this for a very different reason, because it's in line with what the founding generation laid down as our fundamental law. Well, where do they think constitutional rights come from? The essential premise is we have constitutional rights because they're enumerated. Like, we have the First Amendment rights we do because they were enumerated. To enumerate a right is to take a right that down here and to elevate it, to pull it up and to kind of retrieve it and insulate it from the democratic process. That's the point of enumerated rights. But as we already discussed, that was not how people thought about enumeration at the time. First and foremost, fundamental rights were mostly entrenched in the social compact, which exists before the Constitution. I mean, this is a big part of when the Bill of Rights are added. When James Madison unveils the set of amendments that we now refer to as the Bill of Rights, a series of people, including Roger Sherman on the first, on the floor of Congress say, this is just a declaration of rights. The people already have these rights, whether we declare them or not, to which James Madison essentially says, yeah, sure. The job here is not to transform the content of the Constitution. It is to appease people who are concerned about it by making explicit what is already implicit. By declaring simple and acknowledged principles, is how Madison puts it. We're not creating constitutional rights that didn't exist. We're declaring rights that were already part of the social compact. Now, in enumerating the rights, as we've discussed, you could do more than simply declare rights that you already had. You could offer more concrete legal specifications that would shape the contour of the right and would therefore limit what the people's representatives could do going forward. But as we've discussed, they didn't do that. So current Supreme Court thinks enumeration draws this amazing bright line. An enumerated right is like this super charged up thing that nothing can touch, and an unenumerated right is basically meaningless. That wasn't how the founding generation thought about it. The enumeration usually did not change the legal content of the right. It could,, but in the case of our First Amendment, did not. Second, what is the purpose of rights? Well, the whole reason they think that about enumeration is 'cause they think the point of rights is to place determinative limits on government. It is that modern liberal theory of liberty. Rights are things people can use against the government to protect their liberty. But given that people in the 18th century thought of liberty in representative and republican terms, The problem in most countries is the king just decrees stuff and the people aren't free to make their own regulations. We're going to have genuine self-government here. We're going to be free because we are going to govern ourselves. Um, so as a result, they didn't see liberty and they didn't see rights provisions the way, you know, the modern Supreme Court, like so many, um, Supreme Courts that preceded them, sees it. They didn't start from the premise rights are there to place limits on government. Rights are there to create the tests and conditions by which you judge whether or not government activity is legitimate and lawful. Totally different. So premise 2 already at— premise 1 at odds, premise 2 at odds. Finally, who gets to define and enforce the rights? Well, the assumption of the current originalist Supreme Court is that, well, the Supreme Court gets to, judges get to. Um, and that follows naturally from premises 1 and 2, right? You've enumerated a right by removing it from Republican self-control. You've done this because the whole point of having rights is to have trumps on government. So obviously the institution that is there to check the representative and political branches will do that. But as we've talked about now, um, over the course of this hour, at the founding, they assumed that unless things were clearly and precisely settled into determined. It was left to the people themselves, whether it be legislatures at the federal level or the state level, juries. It was for them to define the contours of the right. So what is, is the originalist basis for this kind of enforcement and conceptualization of the First Amendment strong? I would say no. That doesn't mean it's illegitimate. There could potentially be other grounds for justifying it, but I just don't see how it's justified by originalism. And certainly the idea of, we don't mean to interfere with democracy, but we have to because some supreme act of the people from 1791 forces us to. We don't want to, but the founders are making us do it. I just don't think that's true. If you take the founding seriously, they thought they had established a much different kind of First Amendment, 'cause they had a very different understanding of where rights come from and therefore what enumeration meant to them, the purpose of fundamental rights in a republican system of self-government, and who, when these things aren't clear, get to define and enforce them. We don't have to accept anything they thought, but I think if we're gonna reject anything they thought, no matter whether you're an originalist or not, you should have good reasons for doing so. And if you're gonna be an originalist and you're gonna wield judicial power against these things, you definitely have to take that seriously.

Yeah. So here's a particular example where I think we could say being an incomplete originalist is producing really perverse results. So one way in which the whole Second Amendment jurisprudence evolved, you know, remember for most of the history of America, nobody thought the Second Amendment granted individuals a right against against the government, whether the federal government and eventually the state governments. And the court, the court has now interpreted it so that it creates rights against the federal government, rights against the state government. But there's— they've had a lot of trouble, like, drawing the lines around this. And of course, they themselves believe they've got to draw the lines. And so they've elaborated these really complicated tests for figuring out what those lines are. But the core of the test, which they've articulated, which some some are suggesting should be the test that gets applied to every right in the Bill of Rights is articulated in a case called Bruen. And what Bruen basically says is the first question is, does the law of Congress impose a restriction on a plain meaning restriction on the right? And if it does, then the second question is, are there examples of legislation at the time of the— some think a little bit after the time of the founding— that evince the fact that the framers thought you could regulate the right in that way, even though it was apparently infringing on that right. So it's the first step of this analysis that's really important to be careful about, because there are two ways to understand whether a law, for example, that says you can't— you don't have a right to give unlimited amounts of money to an individual independent political action committee. There's two ways to understand whether that, quote, infringes on the right. One way to understand it is to ask, under modern First Amendment law, Buckley v. Valeo, would you see that as infringing the right? Answer: yes, of course. Under modern First Amendment law, the conception of the right is pretty clear, and this is obviously a restriction on your ability to use your money to affect political speech. Fine. But under the original understanding of First Amendment law, under the original meaning of the freedom of speech that Congress doesn't have the freedom to abridge, um, from what you're saying, what that means is, well, Congress doesn't have the freedom to abridge it, but Congress has the freedom to define the scope of that right. So if Congress says you can't give unlimited-sized contributions of unlimited Lawrence Lessig, to independent political action committees, that's defining the right. And so the thing has not been infringed if the thing itself is defining the scope of the right. Now, I agree with people who say, I don't like that. I think that's a little bit weak as a First Amendment. I want a stronger First Amendment. And so I would support a movement to amend the First Amendment to make a stronger, clear line about what Congress or what any other government agency can do, or whether the president can, for example, get his FCC to threaten to withdraw the license to a broadcaster because some comedian makes jokes about him. I think that is a kind of clear kind of violation of what should be a modern First Amendment right. But the hypocrisy claim is if you are an originalist and you say that what you're doing is enforcing the Constitution, the framers Lawrence Lessig just gave us. You can't say that the first step of Bruen applies the modern reading of the First Amendment. You've got to apply the first step of Bruen to the original meaning of the First Amendment, which means there is no infringement in the context of something like campaign finance restrictions. There might be abridgment in the context of a law that, for example, required prior restraint or that required Brendan Carr, from the FCC to clear all jokes on late-night television. That I would say is a restriction that maybe the court could say the Constitution forbids 'cause it's a kind of prior restraint, kind of. But the idea that it would restrict the kind of things that campaign finance law is just not possible for an originalist to assert. So either the originalist doesn't know the original meaning of the First Amendment, Or the originalist is not being honest about being an originalist. And what's striking here is, for example, take Justice Thomas, who elevated your colleague Judd Campbell's work quite significantly. Justice Thomas has been quite active in trying to get the court to reverse its 1964 decision in New York Times versus Sullivan, that created, again, Thomas would say Zeus-like, a principle that limited the scope of defamation law. So it basically said the common law of defamation law is constitutionally constrained so that you can't sue newspaper reporters for making a mistake. You can only sue them and their newspapers if they've intentionally, essentially intentionally lied. You can sue them for lying, but you can't sue them for just being sloppy. Okay, so Justice Thomas wants to reverse that. And Justice Thomas says, New York Times v. Sullivan is policymaking dressed up as constitutional law. When I read that, I thought, have you ever read Buckley v. Valeo, Justice Thomas? I mean, what is more clearly policymaking dressed up as constitutional law? But okay, he said the question for the court should be, what would the original framers have thought about whether there was some kind of immunity that protected newspapers and reporters? And he said, no, the answer would be no such immunity. And he expressly invoked the idea that you were talking about in another case where he says, like, the question of whether they thought that judges could second-guess the judgment of legislatures when legislatures pass laws that might happen to restrict rights because they think that that advances the public good. But Thomas says there was no basis for believing courts could second-guess the Congress's judgment about what's in the public good. So in this context, Thomas is perfectly consistent with his originalism to say an original meaning of the First Amendment would not give us New York Times versus Sullivan. But somehow when you switch channels to campaign finance, he is the most extreme libertarian. He's like, there is no regulation here allowed at all. And I've never had the— I met Justice Thomas when he became a justice 'cause he came in just as I was clerking, but I've never had the chance to say to him, like, how are these two First Amendments so radically different for you? And the same with these other justices. They just never addressed it. And of course, the case that we have that the First Circuit will hear at the end of July, a case which has been supported by a historian's brief that you, Jonathan, wrote that tried to make this clear, is a case that I think for the first time is trying to get the courts to address the First Amendment from a historical perspective. And whether that means they throw out the whole regime they've built, or at least they feel a little bit more chastened to yield to the democratic process, I'm happy with either either of those two results. But the, I, I think, you know, James Madison or Thomas Jefferson, more importantly, looking at a referendum that first with 75% of the people's votes said hell no to super PACs and, and 5 justices on the Supreme Court saying, well, actually we kind of like the idea of super PACs, given our conception, our own personal political preferences would be outrageous. And so this is the really critical claim. That is why we're actually in this case. We're, we're there making the originalist argument, 'cause the state of Maine wasn't so eager to make the originalist argument, 'cause it seems like a political position to take. But, you know, I'm not in it for the political position. I'm in it for the legal position that people ought to be free to, like, regulate their campaigns so that we believe that we're not living in a deeply corrupted system.

Absolutely. And I think the point about when you change channels is so critical because it's about really taking seriously, you know, I approached this as a historian, which is first and foremost, how did these people who thought so differently than me and the world in which I and you and everyone else who thinks about the Constitution today has been socialized, how did they understand things? And really not trying to fill in the gaps with your own thinking. And following the premises where they lead, especially where it seems weird and strange, because that is almost always the key to unlocking true historical understanding, especially something that seems familiar. Um, and in this case, uh, you start with step one, uh, which they want to apply to the First Amendment. They've applied to the Second Amendment. Does this sort of fall within the scope of the right and infringe it? Um, already is off on the wrong foot. 'Cause as we've been talking about, the whole point of how these amendments were constructed, and they didn't have to be constructed that way, but the way they were constructed was to leave the scope of the right underdetermined, unclear, unsettled. That was the whole, that was the deal made. So when Justice Scalia said in Heller, Justice Breyer is wrong to talk about balancing tests when it comes to the Second Amendment. Public safety versus individual rights, because the balancing test was struck in 1791. The scope of the right was forevermore until amended, fixed. Or Justice Gorsuch more or less repeated that in United States v. Rahimi, explaining the point of Bruen, saying the scope of the right is trapped in amber. But this is, if I am correct, This is not what James Madison and his friends did. They could have fixed the scope of the right. They chose not to. So the question then becomes, what do you do with provisions? The principle of the provision is fixed. There is a zone there, the outer contours of which are very clearly marked and government has to respect unless amended, but they chose not to fill in the details. Um, they didn't fix the scope. They left other people to make the scope. That, that makes it a lot harder in my mind to see from that standpoint that a citizens referendum, um, is not the precise kind of technology or among the menu of things through which people sketch out those contours. Um, and if, if you don't think that's a good idea, Perhaps because we now have decades of judge-made doctrine that has done a great deal to fill in that space, and we think that's good. To your point, um, the justification, I don't think, can be originalism. It has to be something else. Um, and it also seems problematic that originalism was initially not the thing. It was a means to the end. The thing was, as you've said, democracy, a vision of democracy. That was what Robert Bork and others sold, that the problem with the Warren Court, which claims to be enhancing democracy, is that they're in fact attacking it. Originalism is a tool to restore democracy. Obviously, people didn't necessarily agree with their vision of democracy, but that was the point. It was a means to an end. And what has happened to that end? Is there really a sound case to be made that Thomas Jefferson and James Madison and all these Republicans from the late 18th and early 19th century, who are some of the most vociferous critics of judicial supremacy and, and judicial power that you can find in the entire history of the United States, were somehow, uh, establishing a system that led to that, to that conclusion, um, doesn't make a lot of sense to me. And you can pull different things from the founding as often people do, they create these sort of bricolage figures of, you know, uh, your, your Hamiltonian on presidential power, your Jeffersonian on national power, your Marshallian on judicial review, your, uh, plebeian Republican on popular sovereignty, and you create kind of a mashup that doesn't describe anyone who lived at the time. Um, at what point are you just engaged in a form of ventriloquism? Well, let's take it seriously. Actually follow the founding where it leads. And it seems to me to have accepted the principle that when in doubt, when it wasn't clear what needed doing, the people themselves could find a way. Um, and for better or worse, we've, we've kind of concluded, well, that's just not so workable. You need an institution that kind of makes final determinations. And is any— does anybody really think over the last 75 or 100 years, depending on when you trace its origins, perhaps in the Lochner Court, that people really like it when the court is doing things it likes. But is there sort of broad agreement that it has somehow provided this institutional settlement that the founders couldn't have understood that does a nice job of settling contested questions? It seems to me it just turns the temperature up. Yeah.

I mean, we could talk about a lot of contexts this is true. I mean, the most recent decision, Trump v. Slaughter, about the unitary executive just drives me crazy. Yeah, drives me crazy because it makes exactly the same kind of mistake. But we, we're at the end of our hour. I just want to make sure one point is clear that you said, where you, you suggested, you said, if they agree with me. Look, I have learned an incredible amount from from you. Your two books are bibles in my constellation of work. And I think everybody, and we're going to put them up on our website so people can see them and they should go and they should read them. And the one that's most relevant is your recent book about originalism. But what's striking about the field you are in is that your view is actually echoed by many other people in in this field, right? Judd Campbell, who's also at Stanford, Jamal Greene, others who have looked at this and have tried to take seriously the objective of originalism, which is to understand what they were doing. What did they try to do? And what did we the people think we were locking into higher law that was going to constrain our generations going forward? The view you've articulated so clearly, and powerfully in your book is a view that's echoed across the field. And so the idea that this is one scholar who's discovered this weird paper that says there is no First Amendment or the First Amendment, it's just not true. What you've done is help us understand something about what the original meaning of the Constitution is. And now it's up to the Supreme Court to decide whether in fact they're originalists originalists. And it's not easy. I mean, I had the privilege of clerking for Justice Scalia at the period, you know, early in his career when he was really trying to demonstrate that his originalism was principled. And so there are lots of cases where there was a conflict between the originalist thing to do and the conservative thing to do, the thing that conservatives would like. And when we saw that conflict, eventually, not immediately, but eventually he would come around to the originalist thing, 'cause that's what he thought his purpose was, to be a principled originalist. And so I guess my view is that if that's in fact what they say they are, and if that's what they want to be, they need to take seriously what the history is teaching here. And the history is teaching something that should not surprise them. The conception of the First Amendment given to us by the Warren by the Supreme Court, and then by the Burger Court in Buckley v. Valeo, is not the framers' First Amendment. And so if you're gonna tell us when we the people rally to the idea that our legislatures and states would be constrained, even in initiative, you're gonna have to point to something else than what happened in 1791. Maybe it's the Civil War amendments. Maybe there's something buried in the 14th Amendment that has this effect. I don't know. I haven't seen anybody make that argument. Akhil sometimes says things that push in this direction, at least in the second, Akhil Amar in the Second Amendment context, but not in the First Amendment context. So I think this is the challenge for the court. And for people listening who are not so deep into this deep exegesis of originalism. I think the more fundamental point is a political point. The question is, why does the court have the power to restrict what the democratic branches and the people do? And I'm all for saying they have that power where it's clearly in the Constitution, but when it's clearly not in the Constitution, then where does that power come from? And if And if more of us were to ask that question honestly, just genuinely ask that question, I think they would begin to feel a little bit the constraints that humility should have taught them already. And that might get them at least to decide cases more consistent with their commitment to democracy and less consistent with their commitment to some abstract theory of what the First Amendment should mean, or if they had a chance to pen the First Amendment, they would've gone more to Jefferson's side than to Madison's side. You know, that's open to them. Okay, I'm so grateful. I'm grateful for your writing. I'm grateful for your willingness to stand up in this case and make the point clear. Your brief, which we also will make prominent on our website, is brilliant in its clarity and convincing. And so you've done a great service by helping us to make it clear why this argument is so important to the question whether in fact James Madison intended super PACs to be the central part of our campaign finance regime.

Thank you so much. Thank you.

That was episode 4. Stay tuned for episode 5 of this podcast where we're going to talk to Chris Robertson, who did an incredible empirical analysis to try to measure what the appearance of corruption is. Grateful to Josh Elstrow of Elstrow Productions for producing these podcasts. You can find the audio version of these podcasts— well, you might be listening to that right now— on any podcast platform, but the video version is on YouTube at the equalcitizens.us website. Stay tuned for the next episode. This is Larry Lessig. Thanks very much for listening.