The Supreme Court, First Amendment Foolishness, and the Irrelevance of Text to Constitutional Litigation

As we wait for what is sure to be a cacophony of calamitous cases coming later this week and next, I thought it might be interesting to drill down on the text of the first amendment to show how little the words of the Constitution matter to actual constitutional doctrine. Although this blog post is devoted exclusively to the first amendment, the discussion of how far the Court has strayed from the plain meaning of the text applies across constitutional law, as I showed here in a much longer piece. For example, I won't discuss in this post the invisible federal equal protection clause, the invisible anti-commandeering clause, and the Court's decisions turning around the clear text of the 11th Amendment to mean the opposite of what it actually says, and so much more. Today, is first amendment day here at Dorf on Law.

The first amendment says the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches. 

It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning. 

So, what does the Court do? Ignore the issue altogether and apply the protections of the first amendment to all government institutions, federal, state and even local, though the text can't bear that weight.

The actual text does not matter.

So, despite its clear limitation, the first amendment applies across the board to all government entities. What does that text prohibit? Congress (all governments of any kind) "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The text refers to "no law." But, of course, no can't mean no so we ignore it. If the word "no" meant "no" then perjury laws, state and federal, would be unconstitutional (I will get to religion below), as would many laws prohibiting bribery and treason that prohibit speech if done for a certain purpose. But doesn't no mean no?

One possible escape route is to say that perjury laws do not "abridge" speech. But perjury laws prohibit an entire category of speech which quite clearly "abridges" that speech (intentional lies under oath on the witness stand). When someone commits perjury, the government is saying, "you will get punished for your speech." If that isn't an abridgment of speech, I don't know what is.  

So, no does not mean no; it means something less than no. Notice that the perjury example is not like categorical exemptions from the speech clause like obscenity. We can debate whether a movie that lacks any artistic merit and is simply used for arousal purposes is actually speech (a vibrator is not speech, etc.). But perjury is speech all the way down. It is abridged when someone is jailed for speaking it.

No does not mean no.

Moving on to religion, the first amendment prohibits any law "respecting an establishment of religion." The text could have prohibited only an "establishment of religion," but instead prohibits any law "respecting an establishment of religion," which is a set of activities less than an actual establishment. But the Court has never said that, and in fact has moved in the opposite direction, with the conservative justices often saying and ruling in ways that suggest government coercion is an essential element of any establishment clause case. That might make sense if only "establishments" were prohibited, but again, that is not what the text says.

There is a second oft-argued reason why coercion cannot be a requirement in establishment clause cases. If someone is actually punished for their religious exercise, by being subject to higher taxes, imprisonment, or any other government-imposed penalty or requirement, then the free exercise clause kicks in and the establishment clause would have no separate meaning, and there would have been no reason for the founding fathers to have included it in the constitutional text. As Robert Post has said, "it is an essential canon of legal interpretation that no word in a legal text should be regarded as mere surplusage."

Of course, the folks most interested in making coercion a necessary element of a successful establishment clause case are the ones who prided themselves on being textualists (Scalia, Rehnquist, and Thomas). But any fair reading of the text must make the establishment clause mean something different beyond what the free exercise clause means, if text matters.

Text does not matter.

The first amendment refers to "the freedom of speech, or of the press...." But the Court has held that the press has no more rights than the general public when it comes to reporting on government activities or for any other purpose. Here is Robert Post again: 

As a speaker, the press is presumptively a participant in public discourse, entitled to all the First Amendment protections as other speakers in public discourse. As a distributor of information, however, the Court has repeatedly held that the press is not entitled to any privilege not held by all other distributors of information. 

If the Court were correct about this, why include a separate mention of the press in the text? There must have been a reason, but the Court has refused to go down that textualist street. Why?

Text does not matter.

Finally, the text forbids the government from passing any law prohibiting the "free exercise of religion." The Court has never even tried to define the word "exercise" in a constitutionally relevant manner. I have argued that religious "exercise" and religious "conscience" are not the same things. One's religious "exercise" is not affected by a law requiring a wedding cake designer to offer his services to same-sex couples because making wedding cakes for profit simply is not religious exercise of any kind. It is not praying or wearing a religious symbol or going to and from a religious meeting or attending one. No doubt, the designer's religious conscience is affected by the requirement to provide services for same-sex weddings, but conscience and exercise are simply not the same words, and they can mean very different things.

But the Court has treated exercise and conscience in exactly the same way despite the fact that they mean different things, and it is unlikely the founding fathers intended to arm people with a 24-hour-a-day, seven-days-a-week, 365-days-a-year "get out of following the law" card because their religious conscience is offended. Exercise connotes something more than conscience, but the Court has never even asked the question. Why?

By now I think you know the answer but, if not, re-read the title of this post.