Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. In a new essay titled “What Happens if Data is Speech,” published in the University of Pennsylvania Journal of Constitutional Law Online, I consider the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.
Liberty Law Blog
One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.
For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.
This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.
The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.
Let us introduce Lauren Weiner, the new Associate Editor of Law and Liberty. Our growing enterprise now benefits from the editorial and writing efforts of a self-confessed ink-stained wretch. (Lauren says she is updating, though, and now prefers byte-sodden rogue.) Lauren’s writing life has taken her to jobs as an editor, reporter, and congressional staffer, and to the Pentagon, where she spent three years as a speechwriter to Secretary of Defense Robert Gates. Her interest in U.S. history, foreign policy, politics, and culture is deep and abiding. The publications in which her work has appeared include the Weekly Standard, Commentary, First Things, American Communist History, the Wall Street Journal, the American Interest, Policy Review, the New Criterion, the Washington Times, and the Baltimore Sun.
Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.
Economic inequality in the country is rapidly increasing. But our libertarians are right that inequality, by itself, hardly undermines the case for liberty.
A free country is a place where everyone is getting better off, although some, because of their hard work and natural gifts, more than others. Libertarians always point to the progress of technology as benefitting us all. Everyone is living longer, or at least everyone responsible enough to attend to what we can all know about avoiding the risk factors that imperil our health. In our march toward indefinite longevity and even the Singularity—the moment in time when machines are smarter than humans— it might be reasonable to hope that few will be left behind. And almost everyone benefits from the constant improvement and plummeting cost of the “screen”—from the smart phone to the tablet and laptop to the huge flat-screened TV. Continue Reading →
I recently finished Akhil Amar’s America’s Unwritten Constitution and strongly recommend it to anyone interested in constitutional law. That is not because I agree with all of it. As I get older, I find the most important aspect of a great book is its capacity to enlarge the ideas I can entertain as interesting and plausible rather than to compel my agreement.
America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. Others are also compatible with originalism if properly done, as when Amar looks to the early practices of the republic to clarify meaning or takes account of precedent. Other methods, as I will argue in a follow up post, are less compatible with originalism, but they also describe as matter of fact how the Court has given effect to constitutional law.
The book shows a lifetime of constitutional study on every page. Its tone is a model of what scholarship should be. If Yeats is right that prose is arguing with others and poetry is arguing with oneself much of this is poetry. Different sides of argument are given their due before Amar comes to judgment. And it is wonderfully written. Continue Reading →
In my prior post, I noted that the unconstitutionality of Jim Crow is often mistakenly considered to be identical with the constitutionality of Brown. In this post, I want to note some new evidence that provides additional support for the constitutionality of Brown under the original meaning.
As I noted, there are two issues concerning Brown that raise questions under the original meaning. First, is separate but equal constitutional or does the Constitution forbid such laws as racial discriminations? Second, is the right to attend a public school a civil right or otherwise within the scope of the 14th Amendment equality requirement?
The leading article on the constitutionality of Brown under the original meaning is Mike McConnell’s paper, which presented a range of evidence to support both points. Also significant is John Harrison’s paper, which argues as well for both points in a wider treatment of the 14th Amendment. But there have been new arguments that have been made in the last several years that provide additional support.
First, my own paper, published last year on Originalism and the Colorblind Constitution, helps to support the argument that separate but equal was not considered constitutional as to public education. One of the most common arguments for separate but equal comes from the segregated Washington D.C. public school system that was operated under Congress’s supervision. If Congress segregated (or allowed the segregation of) the DC schools, then how could the 14th Amendment have forbidden it? In the paper, I argue that legislation passed by the Congress should not be read as informing the meaning of the equality requirement of the 14th Amendment. The 14th Amendment equality requirement was not applied to the federal government and therefore one cannot assume that the Congress was reflecting its views of the Amendment when it passed legislation. Thus, if Congress’s actions with respect to the D.C. public schools did not involve an interpretation of the 14th Amendment, this piece of evidence becomes much less important. Continue Reading →
One of the more disconcerting aspects of following the Affordable Care Act, beyond the numerous delays and waivers announced weekly, has been the cavalier approach by which the government announces these changes. To say nothing of the merits of these significant changes, it is often difficult to find out why and how the government has justified these decisions. More often than not, the explanation will come in a blog post on the Department of Health and Human Services blog (often on a Friday afternoon). Or, perhaps if we are lucky, there will be a handy PDF explaining the changes in more detail.
The American Enterprise Institute’s Arthur Brooks is probably the most captivating American intellectual leader today on the right. He wows conservative audiences and even elicited a kind word about capitalism from the Dalai Lama, who considers himself a Marxist!
In an excellent article for Commentary magazine, with the Biblical title “Be Open-handed Toward Your Brothers,” Brooks asks about the status of the U.S. five years into the progressive rule of Barack Obama and his promises to lift up the poor, end inequality, and make the rich pay for it. Continue Reading →
Vladimir Putin is playing for the highest geopolitical stakes. Can the U.S. government afford to do less? Regardless of whether Putin’s near term aim is to take a chunk or two out of Ukraine —as he took chunks out of Georgia in 2008 —or just to stake out a bargaining position to make sure Russia can hold on to its Black Sea naval base after its lease expires in 2017, there is no doubt at all about his long term objective Continue Reading →