Inside Originalism: Our Constitution’s Classically Liberal Design

Anthony Sanders · May 20, 2020

A recent article in the Atlantic by Adrian Vermeule, criticizing Originalism in favor of “common-good constitutionalism” has sparked a lot of attention—including a response by the Institute for Justice’s Anthony Sanders. One argument made by Vermeule, that Sanders’s article sets aside for another day, is Originalism’s consistency with libertarianism or classical liberalism. This is a book-length topic. Therefore, this article will address only one provision Vermeule claims inconsistent with classical liberalism—the original meaning of the First Amendment.

Vermeule writes that “[t]he founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech.” To support this position, he cites Professor Jud Campbell’s thoughtful piece on the First Amendment as evidencing the limited scope and anti-liberalism of the Founders’ First Amendment.

Campbell argues that First Amendment protections are far narrower under Originalism than under our current law. He contends that the First Amendment’s protection for the “freedom of speech” immunized only “well-intentioned statements of one’s views” while the “freedom of the press” clause “referred specifically to the rule against press licensing.” This understanding leaves expression such as flag burning and corporate speech unprotected by the First Amendment.

Of course, Campbell’s claim is not undisputed. Professor Eugene Volokh documents the Founders’ view that the First Amendment applied broadly to symbolic expression, or the natural rights of speaking, writing, and publishing. And, importantly, that those rights were all protected under the First Amendment. Campbell’s position takes a narrow view of the First Amendment’s legal protections. But less than a decade after the Amendment’s ratification, this narrow view was roundly rejected by the American public in the Sedition Act Crisis. More importantly, Professor Campbell’s article views freedom of speech solely through the lens of the First Amendment itself, and not the various other structures and provisions of the Constitution that protect the freedom of speech and press.

This narrow focus matters, because a broader view of the Constitution shows that Campbell’s argument—even if it were correct—cannot carry the weight Vermule places on it. That’s because the First Amendment doesn’t exist in a vacuum—it is situated within a constitutional superstructure designed on a foundation of classical-liberal principles.

The Founders built the Constitution to protect liberty through structure as much as through enumerated-rights provisions. One such mechanism is the limited, enumerated powers of Article I, Section 8. One “great power” left off that list was the power to regulate the press. This was no accident. Federalist No. 84 cited this omission as a protection for liberty ingrained in the Constitution’s structure. So even if the freedom of the press were as constrained as Campbell believes it to have been, the federal government never had power over the press in the first place. Therefore, the Constitution provides a double layer of protection for speech and press freedoms—an implied limit on power and an enumerated-rights provision. Quite the classically liberal belt and suspenders.

Then there is the Ninth Amendment, which expressly recognizes that unenumerated, retained, or natural rights should not be construed as having a lesser status than those enumerated in the Bill of Rights. So even if the original First Amendment protects a narrow subset of speech and press rights, the Ninth Amendment prohibits leaving the rest of these rights unprotected. Equality among natural rights, another classical-liberal idea, baked intra-textually into the Founders’ design.

Moreover, the Fourteenth Amendment, ratified in 1868, only increased protections for liberty in our federal system—including a due process clause recognizing the natural rights of life, liberty, and property and the Privileges or Immunities Clause protecting a group of fundamental civil rights. This ensured that these rights would be protected not only at the federal level but also against the states.

In short, Campbell’s argument about the meaning of the First Amendment does not—as Vermule claims—show that Originalism is inconsistent with classical-liberal theory. It is the Constitution, not in parts but in whole, that is consistent with classical liberalism. And the Founders paid careful attention to the details of its structural design, precisely to avoid the kind of governmental authority Vermeule advocates.

The Bill of Rights are strong protections for our rights and liberties. As is the Fourteenth Amendment. But it is the Constitution as a whole, the entirety of its moving structural parts linked and working together with its enumerated protections for liberty, that make it a classical-liberal edifice. To the extent Originalism seeks to protect and restore the original meaning of the whole Constitution—all its interconnected parts—our Constitution is consistent with classical liberalism.

Adam Griffin is a Constitutional Law Fellow at the Institute for Justice