Historical commentary on First Amendment interpretation by Justices Hugo Black and Felix Frankfurter

4.2.12 WC: 191694 My favorite characters in the Bible and in literature are those who challenge authority: Adam and Eve defying God and eating the forbidden fruit of knowledge; Abraham chastising God for threatening to sweep away the innocent along with the guilty; Moses imploring God to change his mind about destroying the “stiff-necked” Jewish people. My favorite Justices of the Supreme Court are the dissenters. My favorite historical figures are political and religious dissidents. My closest friends are iconoclasts. Some of my best teachers were fired. The First Amendment would have been nothing more than a parchment promise had it not been given life by brave political dissidents and bold judicial dissenters. Because of these provocateurs, the First Amendment has not become ossified with age. It has changed with the times, sometimes for the better, sometimes for the worse. Although the literal words have remained the same for more than two centuries, two of the most important ones have been changed beyond recognition. These words are “Congress” and “no.” (“Congress shall make no law....”) The controversial role of these two words can best be illustrated by a story; perhaps aprocrophyl but reflecting reality, about two great and contentious justices, Hugo Black, who claimed to be an absolutist and literalist when it came to the words of the First Amendment, and Felix Frankfurter, who advocated a more functional balancing approach despite the seemingly clear words of that Amendment. In a case involving censorship by a state, Black pulled out his ragged old copy of the Constitution, turned to the First Amendment and read it out loud to the lawyer representing the state. “Read the words,” he shouted at the intimidated lawyer. “It says Congress shall make NO law abridging the freedom of speech.” He banged the table as he shouted and repeated the word “no.” “What don’t you understand about the word ‘no,’” he asked rhetorically. Justice Frankfurter interrupted and said, “You’re reading the words wrong.” The lawyer looked startled as the Justice explained. “It doesn’t say ‘Congress shall make NO law.’ It says, “CONGRESS shall make no law,’” banging the table as he shouted and repeated the word “Congress.” He then continued, “This law wasn’t passed by Congress, it was passed by the state. What don’t you understand about the word ‘Congress,’” he asked, mocking his fellow justice. By emphasizing different words, the two justices were giving radically different meanings to the very same language of the First Amendment. The reality is that both of these words—“Congress” and “no”—have been excised over time. The first—“Congress”—was central to the history of the Bill of Rights, which was seen by its framers largely as a bill of restrictions on the power of the national legislature—namely “Congress.” There was considerable concern that the Constitution, which replaced the Articles of Confederacy, bestowed too much power on the national legislature, thus reducing the rights (really the powers) of the states to legislate for their citizens.*° The First Amendment was not intended by its framers to impose restrictions on the states. In fact when the Bill of Rights was enacted, and for many years thereafter, many states had laws severely abridging the freedom of speech and of the press. (Several states also had officially established churches and officially discriminated against Catholics, Jews, Turks and “other” Pathens.) Ifthe framers had wanted to impose restriction on the states, it would have been simple to have written a more general °6 The rarely invoked 10 Amendment makes this clear: “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.” 86 HOUSE_OVERSIGHT_017173