Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
Recently, I wrote a blog post reacting to Patrick J. Charles and Kevin Francis O’Neil’s new article. They wrote a response, which I am posting below. While I don’t agree with all of their points, I will refrain from responding today. This post is their chance to make their argument:
In a thoughtful reply to Saving the Press Clause From Ruin: The Customary Origins of a ‘Free Press’ as Interface to the Present and Future, Professor Michael Rappaport states our critique of originalist methodologies leaves him “cold.” In particular, he has issue when historians use “context and claims of historical method…as ways of ignoring the legal meaning of provisions.” Rappaport then asserts that historians “must recognize that the relevant question is what the language meant in 1789” and “should focus on the later evidence” more than on its intellectual development.
We agree, yet disagree with these statements. First, historical context is perhaps the most important aspect of any originalist inquiry. Without context there cannot be objectivity. Context gives words their proper meaning and purpose, and minimizes the textualist “dosey-doe” where many originalists take a quote, break down the “public understanding” of each word through dictionaries or other sources, and then reassemble the whole. This happens more often than people think. This is not history, and it is certainly does not assist in any intellectual or ideological inquiry.
Take for instance the word “press” in the First Amendment. Based on this word alone, an originalist could claim either the First Amendment protects the right of access to use the “press” or that it referenced the entity circa 1791. How do we provide the historical answer? One place to start is the constitutional debates, and Rappaport believes this to be the best evidence. We agree. However, as David A. Anderson has pointed out, the debates do not answer the question appropriately. This holds true for a number of constitutional provisions, including what is a “well-regulated militia” or what was really intended by the Necessary and Proper Clause. In all these instances, the constitutional construct of these words requires a deeper intellectual inquiry that may go back a century. Moreover, to be a thorough historian or orginalist, it is important to compare and contrast the intellectual development of constitutional thought. This clarifies rather than muddles analysis.
Herein lays a problem with Eugene Volokh’s article. While we agree that the Press Clause protects the evolution of press technology, it is not for the doctrinal reason that Volokh relies on. Based on a cursory comparison of our method with Volokh’s, Rappaport states that the latter has “a good bit of original public meaning evidence for [the press as technology] conclusion.” Our question in response is: “What substantiated evidence does Volokh provide that can be pointed to?”
We do not dispute the First Amendment protects against prior restraint to “every freeman” as Volokh claims. However, this evidence cannot be used as a historical launching point to negate the press as an entity. Volokh never conducted a comprehensive historical inquiry when coming to his conclusion. As our article proves, the press as an entity was seen as crucial to the success of the republic moving forward. This understanding was not a “eureka” moment in 1791, but a gradual constitutional development over a century. Indeed, writers sometimes paid the press to publish their works for a fee, but not every publication was viewed as advancing the public good. A virtuous printer did not publish anything and everything. Printers frequently viewed themselves as a filter of valuable information to ring the proverbial “alarm bell.” Not to mention, when a writer submitted an editorial, they often did so requesting the printer’s permission so long as it did not offend the “liberty of the press.” These are all aspects of eighteenth century society that Volokh does not examine or seek to address.
Where Volokh’s article suffers, in particular, is that it never adequately answers how the Press Clause was intended to protect “technology” when the dissemination of valuable information never advanced beyond the printing press. Where are the examples that the founding generation toasted or celebrated the press as a technology? Our research found a few examples that support this conclusion, but the overwhelming amount of historical evidence points to the press as something much more. It was viewed in terms of constitutional utility. In short, we believe Volokh rushes to a historical conclusion with hypothetical wordplay—an originalist tool that utterly negated the Second Amendment’s rich intellectual history. Our argument is that the findings in Saving the Press Clause From Ruin should dissuade originalists from continuing this approach.