Calvin Massey: Gentleman and Scholar

I first met Calvin Massey in person in 1994, when I joined the U.C. Hastings faculty. However, I knew of and admired Calvin’s scholarship long before that. Six years earlier, I was a law student at the University of Chicago, and a student editor at the law review. In that role, I helped cite-check and edit a major article authored by Calvin, as well as a series of short responses by Calvin and other scholars, debating the meaning and scope of the Eleventh Amendment to the U.S. Constitution. I was struck then, and continue to be amazed, by the clarity, thoroughness, and intellectual rigor of this exchange, and especially Calvin’s contributions to it. I truly believe that these papers provide a model for what engaged, respectful, and careful scholarly debate should look like. They certainly provided an inspiration to me as I began my scholarly career, just as Calvin provided crucial mentorship during my early years at Hastings. In this brief essay I summarize this intellectual exchange, and explain why I think it epitomizes Calvin’s extraordinary strengths as a scholar, and as a gentleman

Posner, Blackstone, and Prior Restraints on Speech

Judge Richard Posner recently asserted that the original understanding of the Free Speech Clause of the First Amendment was to prohibit “censorship”—meaning prior restraints—but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Oliver Wendell Holmes, Jr., Joseph Story, James Wilson, and ultimately William Blackstone. The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom from prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, but a close examination of the historical evidence strongly suggests—though this issue cannot be definitively resolved—that a substantial portion of the Framing generation probably read the Press Clause more broadly as well. What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into our modern—and very different—technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that consensus sometimes simply did not exist. Indeed, the Framers may have given no consideration at all to specific issues, thus indicating limits on the usefulness of the entire originalist enterprise

Crossing Doctrines: Conflating Standing and the Merits Under the Establishment Clause

In American Legion v. American Humanist Ass’n, the Supreme Court upheld the constitutionality of a thirty-two-foot tall Latin cross honoring soldiers killed during World War I against an Establishment Clause challenge. In a concurring opinion, Justice Gorsuch argued that the case should have been dismissed for lack of standing. He claimed that lower court decisions upholding standing for “offended observers” to challenge government religious displays are inconsistent with standing law, and were driven by the Supreme Court’s holding in Lemon v. Kurtzman that government endorsement of religion violated the Establishment Clause. Since, Gorsuch concluded, a majority of the Court explicitly disowned the Lemon test in American Legion, it was now time to abandon offended observer standing as well. In this Essay, I argue that Justice Gorsuch is correct, but for the wrong reasons. Justice Gorsuch’s assertion that offended observer standing arose from the Lemon endorsement test is not supported by history. He is, however, correct that such standing is recognized only in the Establishment Clause context. The question then arises, is there something unique about substantive law in this area which justifies special standing rules. And that in turn raises the very complex question of how the “injury in fact” requirement of standing doctrine interacts with substantive law. My conclusion is that substantive law and injury are related because Congress possesses the power to create new injuries that would not have supported common law claims, and that it regularly exercises that power in the administrative context. On the other hand, the Constitution, acting on its own, should not be read to create new forms of injury. This means that the cases recognizing standing to challenge religious display are incorrect, because they rely on the Establishment Clause alone to create injury where none would have been recognized under the common law. The paper concludes by exploring the implications of this conclusion for the Establishment Clause, and for other areas of law. It ends with the important insight that if standing should not have been recognized in religious display cases, then the Supreme Court was also wrong to recognize standing in its leading cases considering Equal Protection challenges to affirmative action programs

The Democratic First Amendment

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five rights—speech, press, assembly, association, and petition—that I call the Democratic First Amendment. I will argue that the Democratic First Amendment is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad of ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson’s Federalist adversaries. Each of the rights of the Democratic First Amendment, I show, advance this kind of democracy. More importantly, these rights are, to use the Supreme Court’s term, “cognate,” and must be exercised in combination to enable meaningful and active citizenship. The First Amendment, in short, is not just democratic, it is also kaleidoscopic