Issue 2

Equal Speech Protection

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Introduction

The First Amendment’s hierarchy of protection for different types of speech is a myth. The doctrine has long purported to place political speech at the highest and most protected position in this hierarchy, followed by commercial speech and speech on purely private matters, with “low-value” speech like obscenity and fighting words on its bottom rung.1 1.I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)).Show More This basic hierarchy, however, is a doctrinal fiction. As a theory, it does not accurately describe how the First Amendment protects speech; as a doctrine, it does not guide the Supreme Court’s application of free speech law. The true but hidden framework of modern free speech law is one of equal speech protection. Through a holistic reevaluation of the Supreme Court’s free speech jurisprudence, this Article reveals that the First Amendment grants different types of speech comparable levels of protection and that this level of protection is altogether quite moderate—including for political speech. The most salient and startling consequence of exposing the hierarchy as a myth, therefore, is to uncover the constitutionality of restricting dangerous political speech to safeguard important public interests—namely, the protection of democratic governance.

The widely accepted view that political speech garners an exceptionally high level of constitutional protection is flawed in two ways. First, political speech does not enjoy an especially robust level of protection from state interference. The vast majority of political speech is routinely subject to significant government regulation or enjoys no First Amendment protection at all—this includes political speech on public and most private property, election speech, expressive political conduct, political speech crimes, and the speech of millions of government employees, students, and prisoners on matters of public importance. Second, the First Amendment does not protect political speech to a greater degree than it does non-political speech like cultural, commercial, or “low-value” speech. Rather, all speech receives essentially equal protection, notwithstanding judicial platitudes to the contrary.

This equal level of protection that all speech receives is best described as “moderate.” It permits, in effect, courts to moderate speech rights to preserve democratic interests. From a doctrinal standpoint, moderate protection looks a lot like intermediate scrutiny applied to all speech. But “intermediate” does not quite capture what the Supreme Court is doing when it extends moderate protection to speech. The Court is not simply charting a middle road between strict scrutiny and rational basis review, nor is it conducting a pure balancing inquiry or employing proportionality review to speech regulations. Instead, it is applying a unique, substantive standard that permits reasonable limits on speech that are necessary for democracy to function. Under this substantive standard, the Court largely defers to the government on whether a regulation is reasonable and focuses, implicitly, on whether it is necessary to protect democratic governance. This inquiry takes two forms: it can focus on safeguarding effective governance or it can focus on protecting democratic participation. The first requires subordinating speech rights to public order and safety; the latter requires doing so to ensure a healthy and informed public discourse. The result is a doctrine that equally permits regulations on any type of speech for these purposes, in direct contradiction to the hierarchical model of speech protection nominally embraced by the Court throughout its First Amendment caselaw.

The hierarchy of speech protection is no more than a doctrinal myth. The concept of myth is integral to understanding the hierarchy model. Myths are widely held beliefs that are, at once, invented traditions and fictitious narratives.2 2.See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine).Show More The hierarchy of speech protection embodies both elements of myth: it was invented out of whole cloth late in the development of free speech jurisprudence and has since persisted as a false narrative about how the First Amendment protects speech. Like most myths, the hierarchy is real and not real; it is pretend in that it does not control the outcome of cases, but it is powerful in that it continues to propagate widely held, but mistaken, assumptions about free speech law.3 3.See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”).Show More

This acoustic separation between myth and law has reached a critical juncture. The digital age has transformed large swaths of human behavior into speech, bringing more and more activity within the First Amendment’s protective sphere and shading distinctions between types of speech. At the same time, the quantity of social and political speech that poses serious risks to democracy, the economy, and a just society has exploded. These developments demand regulations on speech, and yet the hierarchy of speech protection claims to immunize just such speech from regulation. Exposing the hierarchy as a doctrinal myth that does not reflect the law or theory of free speech protection thus illuminates the constitutional paths forward for regulating speech that risks serious social, political, and commercial harms.

Unmasking this myth has particular ramifications for the regulation of political speech. For decades the Supreme Court has perpetuated the narrative that there is a gradation of speech protection and that political speech receives the utmost protection from state interference. But its rhetoric does not match its holdings. A close examination of the protection afforded to political speech, both in the absolute and relative to other types of speech, shows that this supposed cornerstone of First Amendment law is more smoke and mirror than substantive rule. Indeed, the ruse that political speech receives near-absolute protection is perhaps the greatest misdirection accomplished by the hierarchy myth. In reality, political speech receives a moderate level of judicial protection, equal to that received by all other types of speech.

This tradition of extending equal and moderate protection to all speech works well by allowing the Court to moderate free speech rights in the interest of protecting democratic governance. But its potential is under-realized and increasingly at risk because it remains hidden behind the myth of the hierarchy of speech protection. By dismantling the myth, scholars, legislators, and judges alike can begin to reconceptualize the limits, and the possibilities, of speech regulations—including and especially political speech regulations. The advantages of doing so are manifold: it would put on the table some presumed off-the-wall restrictions on false and malicious political speech,4 4.424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A.Show More and it would serve to democratize speech protection by encouraging legislatures to claim a greater share of the governing responsibility for protecting free speech.

This Article lays bare the hierarchy myth through a comprehensive retelling of the Supreme Court’s free speech jurisprudence. It explains why the hierarchy was invented, why it did not take hold doctrinally, and why it has nonetheless persisted rhetorically. In brief, the Court invented the hierarchy in two steps over a pair of cases in 1976: Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.5 5.The reasons undergirding the hierarchy’s invention are discussed infra Section I.A.Show More First, in Buckley, the Court shifted the role of political speech as core to the First Amendment to a new position as the highest value of the Amendment. Then, in Virginia Pharmacy, the Court established a counterposing point on this newly conceived spectrum of speech by extending a supposedly lower level of protection to commercial speech. What appeared in these cases as small rhetorical steps actually represented a massive doctrinal leap.

The reason for this move inheres in the subject matter of the two cases in which it appears. Buckley and Virginia Pharmacy extended First Amendment protection to campaign financing and to commercial speech, respectively, and represented a tipping point in the post-New Deal explosion of First Amendment coverage. Prior to these cases, the Court did not purport to extend different levels of protection to different types of protected speech. But the Court had spent the last forty years increasingly expanding equal First Amendment protection to speech beyond core political speech—both by deepening coverage to semi-political speech and widening coverage to other types of speech—so that by 1976 the doctrine was sinking under its own weight and deeply in need of an organizing framework. It was in this novel context that the Court wholesale invented a hierarchy of speech protection, ordered according to the speech’s First Amendment value, out of what had been a diverse pool of equally protected speech representing various First Amendment values.6 6.See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech).Show More

Lacking historical basis and in tension with other foundational principles of free speech law, the hierarchy failed to take root and guide the doctrine. Since its invention, the Supreme Court has continued to extend a quite equal level of protection to all covered speech. This equalization of speech protection results from two overriding trends: first, the Court has continued to grant political speech mostly moderate, not absolute, protection, permitting ample government regulation to facilitate the safe exchange of political ideas. In recent decades, the Court has reliably reaffirmed, or in some cases even lessened, this moderate level of protection for political speech, contrary to prevailing criticisms.7 7.A full explanation of these two trends follows infra Sections I.B and I.C.Show More Second, the Court has consistently elevated protection for non-political speech to the same level as protection for political speech immediately or soon after recognizing that speech as covered by the First Amendment.8 8.As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning.Show More

These two trends—maintaining moderate protection for political speech and extending the same level of protection to non-political speech—are themselves the inevitable consequence of applying the patchwork of core doctrines that comprise First Amendment law. These doctrines consist of a series of safety valves that funnel most political speech restrictions to regulation-accommodating corners of the jurisprudential landscape, as well as a series of neutral principles that resist drawing distinctions between types of speech.9 9.See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015).Show More Together, these doctrines exert simultaneous pressure to ratchet down protection for political speech and ratchet up protection for non-political speech to the same level, all but ensuring that a hierarchy of speech protection could never fully develop.

Scholars have previously pinpointed the 1970s as the moment in which free speech doctrine became distorted in a number of significant ways. For example, scholars have identified how the free speech cases of that decade transformed the doctrine into one that vindicates corporate speech rights, undermines economic regulations, and subordinates the interests of citizens.10 10.See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015).Show More This Article identifies another doctrinal innovation that occurred in this period: the Court’s invention of a hierarchy of speech protection and the ultimate failure of this new framework to guide free speech law. This Article thus exposes the fallacy in the doctrinal truism that political speech garners especially high protection, both in the absolute and relative to other types of speech.

In so doing, this Article resituates the current scholarship on the Court’s recent appetite for overturning commercial regulations under the First Amendment—a trend commonly termed the “Lochnerization” of the First Amendment. The origins and consequences of this trend have been widely discussed in recent years, almost entirely through a critical lens.11 11.See infra Subsection I.C.1.Show More This Article offers a novel understanding of how Lochnerization actually fits quite neatly, and in some ways beneficially, within the far larger trend of maintaining equal speech protection amongst varying types of speech. Where the Lochnerization sub-genre of First Amendment critique has focused narrowly on the doctrinal developments (or distortions) of commercial speech law, this Article makes clear that First Amendment Lochnerization is actually one piece of a larger doctrinal framework that blurs distinctions between types of speech and renders restrictions on all speech subject to moderate judicial protection. Specifically, Lochnerization is one speech protection equalization tool among many that functions as a means of ratcheting up protection for commercial speech to the same level of protection enjoyed by all other types of speech.12 12.See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).Show More

Finally, unlike the overwhelming majority of recent literature on the trajectory of First Amendment doctrine,13 13.See infra Section II.B.Show More the doctrinal manipulation this Article identifies has the potential to be normatively valuable. Recognizing that the hierarchy of speech protection and its attendant truism that political speech garners near-absolute protection are doctrinal myths clarifies the constitutionality of speech regulations aimed at protecting a safe and healthy political discourse. It also excavates the robust, but hidden, tradition of moderate and equal speech protection, which this Article argues serves as a unifying “social democratic theory” of free speech law.14 14.See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment).Show More

But it is important from the beginning to sharpen this Article’s assertion that the hierarchy of speech protection is a myth. The myth I describe is a doctrinal myth—it is a legal principle that operates rhetorically rather than analytically, meaning it has little descriptive value for explaining the landscape of speech protection and little influence on how the Supreme Court decides free speech cases. This is not to say that the myth does not do any work. Most myths persist precisely because they have social, political, and psychological power. The myth of the hierarchy of speech protection is no different. It has bolstered the Court’s power and reputation as a guardian of speech rights and fostered a deeply ingrained legal and popular culture of speech tolerance that shapes law and policy decisions in legislatures and boardrooms every day.15 15.First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text.Show More The myth serves the Court and free speech advocates and is also embraced by progressive scholars attempting in good faith to stem the constitutional inoculation of commercial activity from regulation. As this Article shows, however, the hierarchy myth is self-defeating and precisely the wrong doctrinal framework to accomplish progressive constitutional ends.

This Article also does not suggest that all speech regulations are equally permissible. Viewpoint- and content-based regulations, for example, are roundly prohibited. But such laws are equally prohibited regardless of the underlying type of speech at issue. These rules are therefore orthogonal to this Article’s central observation that all speech—political and non-political alike—receives equal protection from regulation. While there are only a few ways government may not regulate any type of speech, there are many ways it can regulate all types of speech. In declaring the hierarchy of speech protection a myth, this Article is chiefly concerned with showing that, as a holistic framework for understanding speech protection under the First Amendment, the hierarchy is an invented tradition disguising a reality of routine government supervision of speech boundaries.

Part I provides a descriptive account of the invention of the hierarchy myth and its lack of substantive force in shaping the doctrine since its creation. Section I.A briefly chronicles the post-New Deal trajectory of First Amendment expansionism from the 1930s through the mid-1970s and shows the absence of gradations in the level of protection afforded to covered speech in this period.16 16.See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018).Show More The remainder of Part I then details how the newly invented tradition of a hierarchy of speech protection never amounted to anything more than a doctrinal truism. It documents how all types of speech are treated at essentially an equal, moderate level of protection. First, Section I.B catalogues the numerous ways the doctrine regularly, and uncontroversially, permits restrictions on political speech that are necessary for democratic government to function. It illuminates that most political speech is actually highly regulable under this standard, directly refuting a core tenet of the hierarchy framework that political speech garners strict constitutional protection. Section I.C then shows how the hierarchy of speech protection is also false for purporting to provide sequentially lesser protection to non-political speech. It explains that most non-political speech garners the same level of protection as political speech under various speech-specific doctrines and generally applicable rules of free speech law that have the effect of ratcheting up protection for non-political speech above what the rhetoric of the hierarchy otherwise suggests. Finally, Section I.D offers possible explanations for why the hierarchy myth has persisted and what consequences it has had on speech protection.

Part II takes up the normative question of whether an equal speech protection doctrine is desirable. It posits that equalizing speech protection—and equalizing it at a level that permits significant though specific legislative control over speech—is ultimately beneficial for maintaining a healthy speech environment and thus a healthy democracy. An equal speech framework is superior to any purported hierarchy of speech model for essentially two reasons, discussed in Sections II.A and II.B respectively. First, there is little practical or constitutional difference between political and non-political speech, making any attempt to distinguish speech by type a doomed and unwise task. Second, acknowledging that political speech is, and should be, afforded a moderate level of protection will foster a more democratic, egalitarian, and resilient First Amendment. It would invite legal reforms aimed at safeguarding the stability and vitality of our public discourse, including reforms addressing the proliferation of disinformation and toxic speech.

Recent scholarship has gone far to document the undemocratic and inegalitarian effects of current First Amendment doctrine17 17.Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B.Show More but has struggled to identify a constitutionally compelling alternative.footnote_id_19_18 This Article does just that by focusing on reinterpreting the doctrine, as opposed to reinventing it. Properly understood, our current free speech doctrine is one of equal speech protection; and properly applied, this doctrine has enormous potential to produce egalitarian outcomes in which the vast majority of average citizens’ public discourse and democratic participation is affirmatively protected by legislatures from interference and manipulation. Thus, while doctrinal recitations by courts and commentators have long described a hierarchy of greater and lesser protected speech under the First Amendment, I show, by exposing its historical invention and its negligible impact on actual judicial decisions, how the hierarchical First Amendment is a sham. Instead, in origin, purpose, and application, the First Amendment prescribes equal treatment of varied kinds of speech, and making this clear can sharpen and improve advocacy, decisions, and responses to calls for reform.

  1. Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring in part and dissenting in part) (“This Court’s cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.”); Rucho v. Common Cause, 139 S. Ct. 2484, 2514 (2019) (Kagan, J., dissenting) (“[The First] Amendment gives its greatest protection to political beliefs, speech, and association.”); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (placing criticism of government officials “high in the hierarchy of First Amendment values”); Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)); Holder v. Humanitarian L. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.” (emphasis omitted)); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly ‘unprotected,’ it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech.” (emphasis omitted)); Connick v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . .”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976) (holding that the differences between commercial speech and “other varieties” of speech mean “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“The First Amendment affords the broadest protection to such political expression . . . .”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971) (“[The First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). ↑
  2. I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)). ↑
  3. See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine). ↑
  4. See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”). ↑
  5. 424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A. ↑
  6. The reasons undergirding the hierarchy’s invention are discussed infra Section I.A. ↑
  7. See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech). ↑
  8. A full explanation of these two trends follows infra Sections I.B and I.C. ↑
  9. As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning. ↑
  10. See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015). ↑
  11. See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015). ↑
  12. See infra Subsection I.C.1. ↑
  13. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). ↑
  14. See infra Section II.B. ↑
  15. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment). ↑
  16. First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text. ↑
  17. See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018). ↑

  18. Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B. ↑

Statutory History

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis. A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning. In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other, more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history. On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators. Scholars have, largely uncritically, tended to accept these distinctions. But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning. Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, this Article catalogues five different forms of statutory history inferences employed by the modern Court. It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject. In the end, this Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.

Introduction

The New Textualism1 1.“New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990).Show More championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.2 2.See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”).Show More A less well-known corollary of this interpretive approach is that Justice Scalia and his fellow textualists were and are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of a bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. Indeed, textualist Justices regularly use such “statutory history”—the cold record of how a statute evolved from one version to the next—to draw inferences about a statute’s substantive meaning even as they criticize the use of other, more traditional forms of legislative history, such as committee reports or floor statements.

Consider two examples:

First, in Arizona v. United States, the Court considered whether federal law preempts an Arizona statute that regulates the behavior of immigrants who are unlawfully present in Arizona.3 3.567 U.S. 387 (2012).Show More One of the state law provisions at issue made it a crime for illegal immigrants to seek employment.4 4.Ariz. Rev. Stat. Ann. § 13-2928(C) (2011).Show More The Court, in an opinion authored by Justice Kennedy, ruled that the provision was preempted by federal law.5 5.Arizona, 567 U.S. at 405.Show More In so ruling, the Court noted that Congress chose to impose civil, rather than criminal, penalties for immigrants who engage in unlawful employment—and backed this up with statutory history about the process by which the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.6 6.See id.Show More Specifically, Justice Kennedy’s opinion noted that draft proposals to make unauthorized employment a criminal offense were introduced and “debated and discussed during the long process of drafting IRCA” and that “Congress rejected them.”7 7.Id.Show More Based on this drafting history, the Court concluded that IRCA’s framework “reflects a considered judgment” by Congress that immigrants should not face criminal sanctions for engaging in unauthorized work.8 8.Id.Show More

Second, in Nichols v. United States, the Court considered whether the Sex Offender Registration and Notification Act (“SORNA”) requires sex offenders who move out of state to update their registrations with the jurisdiction they have left.9 9.136 S. Ct. 1113 (2016).Show More SORNA provides that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved” to “inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”10 10.42 U.S.C. § 16913(c).Show More Nichols moved from Kansas, where he was a registered sex offender, to the Philippines—a foreign country not covered by SORNA—and neglected to register his departure with the state of Kansas; he was convicted of violating SORNA because he had failed to update his registration with Kansas.11 11.Nichols, 136 S. Ct. at 1117.Show More The Tenth Circuit upheld Nichols’ conviction, concluding that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved” under SORNA.12 12.Id.Show More In a unanimous opinion authored by Justice Alito, the Supreme Court disagreed, ruling instead that SORNA does not require sex offenders to update their registration in a state that they have departed.13 13.See id.Show More In so ruling, the Court relied on the statute’s plain meaning, grammar rules, practical reasoning, and SORNA’s statutory history.14 14.See id. at 1117–18.Show More Specifically, the Court noted that the Wetterling Act, a predecessor statute that SORNA replaced, explicitly required sex offenders to “report the change of address to the responsible agency in the State the person is leaving”—but that Congress declined to retain that language when it enacted SORNA.15 15.See id. at 1116 (emphasis omitted).Show More “If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required,” the Court explained.16 16.Id. at 1118.Show More Congress’s decision to employ different language in SORNA, the Court reasoned, was significant: if Congress wanted to require sex offenders to update their registrations in the states they departed, “Congress could have chosen to retain the language in the amended Wetterling Act.”17 17.Id.Show More Because Congress chose not to do so, the Court concluded that SORNA did not require Nichols to update his registration in Kansas once he no longer resided there.18 18.See id.Show More

In both of the above cases, the Court’s references to statutory history were designed to provide contextual support for its chosen statutory constructions. In highlighting that Congress considered and rejected a proposal to impose criminal penalties on immigrants who engage in unauthorized work and that Congress changed the Wetterling Act text requiring registration updates in the state of departure when it enacted SORNA, the Court sought to demonstrate that its reading of the relevant statutes’ texts was consistent with Congress’s likely intent. But it did so without citing the typical commentary by individual legislators or congressional committees that we ordinarily associate with the label “legislative history”—rather, it focused on changes Congress made to the statutes’ texts and on background legislative circumstances, and it used those developments to make its own inferences about Congress’s intent.

The inferences from statutory history employed by Justices Kennedy and Alito in Arizona and Nichols are not anomalous. Indeed, they are a fairly familiar feature of the Roberts Court’s statutory jurisprudence. But while the use of statutory history has been part of the Court’s interpretive arsenal for some time, scholars have paid surprisingly little attention to it as an interpretive resource. To date, only one article has examined the Court’s use of statutory history in any detail—and that article did so only briefly, in passing.19 19.SeeJames Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017).Show More No article has studied the Court’s use of statutory history systematically, and no article has sought to illuminate the different types of inferences the Court draws from such history or to evaluate normatively the justifications offered for employing this form of history, in contrast to traditional legislative history.

This Article seeks to fill that void. It provides the first in-depth analysis of the multiple ways in which the modern Supreme Court uses statutory history to draw inferences about a statute’s intended meaning. While the Article is primarily doctrinal in nature, it draws from an empirical database of 574 statutory cases decided during the Roberts Court’s first thirteen-plus terms to supplement its analysis. Ultimately, this Article aims both to provide a catalogue of the different kinds of interpretive inferences the Court makes when examining a statute’s historical evolution—what the Article refers to as “statutory history”—as well as to evaluate whether textualist Justices’ willingness to employ statutory history can be squared with their unwillingness to examine traditional legislative history or other forms of background legislative context.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of statutory history is moderate—15.7% of the cases in the dataset employed such history; (2) all of the Justices, irrespective of their interpretive methodology, invoke statutory history in the opinions they author; (3) the Court’s most committed textualist Justices invoke statutory history more often than they invoke traditional legislative history; (4) there are at least five different forms of inferences that the Justices tend to draw from statutory history; and (5) nearly two-thirds of the statutory history inferences the Court employs conflict in some way with the parameters textualists have articulated to distinguish statutory history from traditional legislative history.

This Article proceeds in three Parts. Part I defines what is meant by the term “statutory history,” examines the ways in which this interpretive resource differs from traditional legislative history, and reviews the limited existing literature on statutory history. Part II reports data about the Roberts Court’s use of statutory history in the 574 statutory cases decided during its first thirteen-and-a-half terms. Part II also provides a catalogue of the different forms of inferences the Court draws from statutory history, as well as offers doctrinal observations about the Court’s use of this interpretive aid. Part III evaluates the theoretical implications of the Roberts Court’s approach to statutory history, noting that the decontextualized use of statutory history shifts to judges, rather than legislators, the authority to fill in the gaps between different versions of a statute—and that judges engage in substantial speculation when performing such gap filling. It argues that while some forms of statutory history approximate the logical inferences common to traditional textual analysis, others share important features in common with traditional purposive interpretive tools—and are thus inconsistent with the justifications textualists have offered for embracing statutory history while rejecting traditional legislative history. In the end, Part III suggests that textualist judges should either end their reliance on statutory history altogether or, better yet, broaden their interpretive toolkit to include other forms of background legislative contextual evidence, at least as a check on the inferences they draw from statutory history.

  1. * Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to James J. Brudney, Aaron-Andrew Bruhl, Catherine B. Duryea, William N. Eskridge, Jr., Margaret H. Lemos, Kevin Tobia, and participants at workshops at Yale Law School and the University of Southern California School of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Thanks also to Deans William M. Treanor and Michael A. Simons of Georgetown University Law Center and St. John’s University School of Law, respectively, for generous research support. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Kim Friedman, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. ↑
  2. “New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990). ↑
  3. See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”). ↑
  4. 567 U.S. 387 (2012). ↑
  5. Ariz. Rev. Stat. Ann. § 13-2928(C) (2011). ↑
  6. Arizona, 567 U.S. at 405. ↑
  7. See id. ↑
  8. Id. ↑
  9. Id. ↑
  10. 136 S. Ct. 1113 (2016). ↑
  11. 42 U.S.C. § 16913(c). ↑
  12. Nichols, 136 S. Ct. at 1117. ↑
  13. Id. ↑
  14. See id. ↑
  15. See id. at 1117–18. ↑
  16. See id. at 1116 (emphasis omitted). ↑
  17. Id. at 1118. ↑
  18. Id. ↑
  19. See id. ↑

  20. See James Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017). ↑

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1 1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2 2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3 3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4 4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5 5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6 6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7 7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8 8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9 9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.

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