Jerry Edwards, West Virginia University College of Law, has posted The Birth of the Minority Rights First Amendment:
An incongruence exists in the literature on the nineteenth-century history of expressive freedom. Legal-tradition scholars have determined that the First Amendment was majoritarian, observing that outside of judicial enforcement of the rule against prior restraints, courts rarely involved themselves in disputes over expressive rights. Instead, the judiciary deferred to the judgments of legislatures and juries. Meanwhile, scholars examining the nineteenth-century popular tradition discovered a very different understanding of the First Amendment. They found that the antislavery conception of expressive freedom centered dissenters’ rights, arguing that Republicans embedded a libertarian understanding of free speech in the Fourteenth Amendment in 1868. This Article reexamines the nineteenth-century popular tradition and discovers new evidence that reconciles these seemingly incompatible traditions.
The popular-tradition scholars are correct that the antislavery movement oversaw a shift from the founding generation’s majoritarian understanding of expressive freedom to a minority rights conception. Slave states, emboldened by the majoritarian paradigm, suppressed antislavery advocacy and the fledgling Republican Party in the South. This prompted antislavery Republicans to advocate for protection of political dissenters, unpopular minority groups, and free discussion nationwide, birthing the minority rights First Amendment. However, Republicans did not intend for this to be a counter-majoritarian right. The judiciary had historically backed the Slave Power, so Republicans did not trust it to secure and preserve liberty. Instead, they sought to implement their minority rights vision through normative prescriptions and structural protections—namely, multiracial democracy in the South and congressional enforcement of civil rights. Accordingly, majoritarian legal doctrine was not a barrier to the Republican vision of expressive freedom. Unfortunately, this project failed when white majorities, aided by federal acquiescence, overthrew multiracial democracy in the South, taking down the minority rights First Amendment with it.
This Article’s findings provide further support for the view that the juricentric First Amendment is a twentieth-century invention. This means that the history the Supreme Court has used to justify its interventionist approach in First Amendment cases is misleading at best and mistaken at worst. Its reliance on these historical misrepresentations has proven detrimental to the development of speech doctrine, obscuring the contingent decisions it is making in the present. This Article suggests that the Court embrace transparency, eschew law-office history, and recommit to defending multiracial democracy.
--Dan Ernst
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