Strengthening Constitutional Self-Government

No Left Turns

Thomas on Free Speech

Masugi is right that Justice Thomas has a manly understanding of liberty, and this is particularly true in the First Amendment context. Anyone who is unfamiliar with his free speech bona fides need only look to his opinions regarding political speech to understand that this is someone who uniquely understands both the importance and the limitations of liberty.

While most of the press focused on how experience likely shaped Thomas’s questions, I believe that it was his understanding of what constitutes the proper bounds of constitutional liberty that provided the foundation for his inquiry. More than any other Justice, Thomas takes seriously the Founder’s understanding of the Constitution, and his questions therefore seem consistent with the idea that the term "Freedom" in the First Amendment is actually a term of limitation. To see what I mean, it is useful to examine the words: the First Amendment does not say that "Congress shall make no law . . . abridging speech . . ." but rather "Congress shall make no law . . . abridging the freedom of speech" (emphasis added). Thus, for the Founders, the freedom of speech was not unbounded, and did not include, for example, the right to disturb the peace. A wise friend of mine suggested that Thomas’s questions seemed to bear on this distinction--a proposition I now open to Masugi et al.

Oh, and "still less than a man," . . . that was harsh. I actually considered the lawyer comment a compliment by comparison, especially coming from Schramm.

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