The First Amendment: No Law

by Herbert W. Titus

“Congress shall make no law ….” With these words, James Madison and his Congressional colleagues opened the First Amendment with a specific command denying to themselves the power to enact legislation “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.”

Madison’s initial proposal to Congress would have placed these prohibitions on Congress inside Article I, Section 9 of the original constitutional text along side other limitations on Congressional power that had already been specified. Sources of Our Liberties 422 (R. Perry, ed. 1978).

Madison’s effort to integrate these new limits tracked the concerns that had been expressed by his Federalist Papers colleague, Alexander Hamilton, who had urged that the people not adopt a Bill of Rights for the United States Constitution.

Hamilton claimed that by adopting a Bill of Rights, such a bill would necessarily contain “exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted”:

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed. Federalist No. 84.

Hamilton did not contend that such a limit on power would by implication “confer a regulating power.” He warned, however, “that it would furnish to men disposed to usurp a plausible pretence for claiming that power.” Hamilton concluded his plea opposing “the indulgence of an injudicious zeal for bills of rights,” asserting that every substantive right named in such a bill could provide “numerous handles … (for) the doctrine of constructive powers,” thereby destroying the very limitations placed upon the national government as a government of enumerated powers. Federalist No. 84.

Hamilton’s plea did not prevail in the state constitutional conventions, which one by one insisted on adding a bill of rights to the new constitution. See Titus, The Bill of Rights. His views did influence the text of the Bill of Rights that emerged from the First Congress.

Congress did not key the several amendments to specific texts of the Constitution, as Madison originally proposed, nevertheless, it inserted the phrase, “Congress shall make no law,” in order to preserve the directive contained in Madison’s original proposal.

Furthermore, Congress concurred with Madison’s original draft which included a statement that the naming of certain individual rights should not be construed as an implied grant of power to Congress. Thus, they penned the Tenth Amendment to allay the concerns expressed by Hamilton in the Federalist Papers:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

Because the First Amendment is specifically addressed to Congress, it forbids the exercise of legislative power, not the exercise of executive or judicial power. It was written in this manner because it was addressed to a government of enumerated, not plenary, power. If Congress had no authority in the areas specified, then neither did the President nor the Courts.

The key, then, to effective enforcement of the prohibitions is to prevent the enactment of any law that infringes in a constitutionally impermissible way upon the rights specified.

If there was no statute “abridging the freedom of speech,” for example, then there was no authority for the executive to act, because there was no federal “common law” authority in the executive of a government with only enumerated powers.

By its language the First Amendment forbids the enactment of any law transgressing the rights enumerated in its text. The constitutional question in every case should be whether the policy or purpose of a particular statute is valid or invalid.

This point is best illustrated by a review of the history of the ill-fated Sedition Act of 1798. Enacted by a Federalist Congress, the act prohibited, inter alia, seditious libel, that is, “the publication of false, scandalous, and malicious writing or writings against the government of the United States, or either house of Congress of the United States, or the President of the United States, with intent to defame [them]; or to bring them into contempt or disrepute; or to excite against them [the] hatred of the good people of the United States ….”

This prohibition was “vigorously enforced, but only against members or supporters of the Republican Party.” The Federalists perceived the Republicans as having sided with France which was on the verge of war with the United States. Stone, Seidman, Sunstein, and Tushnet, Constitutional Law 1015-16 (2d ed. 1991).

While no Court found the Act unconstitutional, the law expired automatically on March 3, 1801, the day that Thomas Jefferson, an ardent opponent of the statute, took office as the third President of the United States. Jefferson pardoned all those convicted under the Act. Congress eventually repaid all of the fines that had been imposed. Id. at 1016.

In 1918, however, the Congress enacted the Sedition Act of 1918 which made it a crime, among other things, “to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, or the flag ….” Id. at 1026.

While no prosecution charging a violation of this portion of the statute was upheld by the U.S. Supreme Court, the government did bring charges under it and contended that the statute was a legitimate exercise of Congressional power. This contention led Justice Oliver Wendell Holmes, Jr., to write in dissent:

I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying the fines that it imposed. Abrams v. United States, 250 U.S. 616, 630 (1919).

Two years later, Congress repealed the Sedition Act of 1918. And 53 years after that the U.S. Supreme Court affirmed Holmes’ view that the Sedition Act of 1798, and presumably the portion of the Sedition Act of 1918 quoted above, was “inconsistent with the First Amendment ….” New York Times v. Sullivan, 376 U.S. 254, 276 (1964).

But the Court has not always approached First Amendment questions in this fashion. Rather, it has adopted the view that the First Amendment issues are ones of fact to be determined by the Court on a case by case basis, rather then ones of law to be determined by an assessment of the legitimacy of the statute on its face.

This ad hoc approach to First Amendment questions may also by traced back to Holmes and his famous “clear and present danger” test.

In Schenck v. United States, 249 U.S. 47 (1919), defendants were convicted of having violated the Espionage Act of 1917 by circulating literature designed to persuade men who had been drafted into the army to refuse to serve. The statute prohibited the intentional obstruction of the enlistment of men into the military.

The defendants claimed that the law as applied violated their rights of “free speech.” Justice Holmes rejected this claim on the facts. The constitutional “prohibition of laws abridging the freedom of speech,” Holmes wrote, depended upon the place, time, and circumstances:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about a substantive evil that Congress has a right to prevent. It is a question of proximity and degree. Id., 249 U.S. at 52.

Under this approach to the First Amendment, the Court passed over the legitimacy or illegitimacy of the policy embodied in a specific statute and addressed whether the defendants were engaged in free speech as a matter of fact. Because one could not determine whether at the time a law was enacted, the time, place, and circumstances in which it would be applied, these Court rulings gave no meaningful constitutional guidelines to law makers. See Linde, ‘”Clear and Present Danger’ Reexamined,” 22 Stanford Law Review 1163 (1970).

During the 1940’s and 1950’s these two contrasting approaches to the First Amendment commanded the attention of two of the most vocal justices ever to sit on the Supreme Court.

Justice Felix Frankfurter championed the case by case approach. He, therefore, chose to balance the interests of the State against those of the individual to determine the outcome of every First Amendment case. E.g., Dennis v. United States, 341 U.S. 494, 523-25 (1954).

Justice Black, however, claimed that the protection offered by the First Amendment was absolute, not subject to ad hoc decision-making based upon a formula of “reasonableness,” clear and present danger or otherwise. He sought to identify the policy of the statute and to declare it constitutionally permissible or impermissible according to the text. E.g., Id. at 579-81.

These two approaches continue to dominate First Amendment jurisprudence, not only in the area of the freedom of speech, but in religion, press, assembly, and petition. The choice is a critical one and will be addressed again and again in the essays that follow dealing with each of the substantive limitations in the First Amendment.


*     Copyright © 1994, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 1, No. 11 (1994). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.