Ius & Iustitium is pleased to present this guest post from T.A.D., a third-year student at Harvard Law School.
If today the government tried to ban blasphemy – the offense of maliciously reviling God or Christianity – it would face a constitutional hurdle. More precisely, it would face three hurdles: the Free Speech Clause, Free Exercise Clause, and Establishment Clause of the First Amendment. Based on the way that many people now understand these constitutional provisions, the government could face an uphill legal battle in proscribing blasphemy.
But in a recently published Harvard Law Review piece, I argue that the original meaning of free speech, religious freedom, and non-establishment was different. As originally understood, these constitutional guarantees did not prevent the government from punishing blasphemy. In other words, even when the government was constitutionally forbidden from abridging free speech, prohibiting free religious exercise, or recognizing any religious establishment, it could still criminalize blasphemy.
Central to my argument is the doctrine of incorporation. I assume that the Fourteenth Amendment incorporated all three key First Amendment guarantees — free expression, free exercise, and non-establishment — against the states. Thus, I explain what those guarantees meant both in 1791, when the country ratified the First Amendment, and in 1868, when the nation passed the Fourteenth Amendment. Because 1791 and 1868 are both decisive, I examine evidence from Independence to the start of the twentieth century.
Of course, it is possible that understandings changed between 1791 and 1868. But this does not appear to have happened with blasphemy. Instead, a series of nineteenth-century appellate cases reinforced the reality of 1791, holding that government limited by constitutional guarantees of free speech, free exercise, and non-establishment could nonetheless punish blasphemy, as it had been doing for decades. The constitutional doctrine of this line of cases became the settled law of 1868 – the commonplace of courts and commentators.
I look to analogous state constitutional provisions (among other sources) to illustrate the original meaning of the federal Bill of Rights. This is an accepted method of originalist analysis. For example, in DC v. Heller, the majority and dissent vehemently disagreed about what the original meaning of the Second Amendment entailed. But both looked to analogous state provisions to determine what the Second Amendment meant in 1791. Likewise, in explaining why certain categories of speech, such as obscenity, are not protected by the First Amendment, the modern Supreme Court has turned to the founding-era history of states regulating speech — including blasphemy — under analogous state constitutional provisions. A critic who rejects my use of state analogues to explain the original meaning of the First Amendment must also reject the standard historical methodology of the federal courts.
Treating early state analogues as equivalent to the federal First Amendment also makes sense from a historical perspective. Today, courts often interpret state constitutional provisions differently than their federal counterparts. But lawyers in the early republic were not post-Erie positivists. As Jud Campbell has shown, early Americans viewed free speech and religious liberty as natural rights. The federal and state provisions simply embodied these pre-existing natural rights — rights which were not thought to vary from one jurisdiction to the next. The people of Vermont did not mean one thing when they ratified “freedom of speech” in the federal Bill of Rights but something different when, two years later, they ratified “freedom of speech” in their state bill of rights. Moreover, in discussing blasphemy, nineteenth century courts and commentators consistently equated the different state guarantees with one another — and with their federal analogues. It would be a mistake for us to separate what Americans in 1791 and 1868 treated together.
What, then, did freedom of speech and of the press mean for Americans in 1791? At that point, two states — Vermont and Pennsylvania — explicitly recognized freedom of speech in their constitutions. The Vermont Constitution stipulated that “the people have a right to freedom of speech,” yet a 1797 Vermont statute made it a crime “contumeliously [to] reproach [God’s] providence, and government.” Similarly, the Pennsylvania Constitution stipulated that “every citizen may freely speak, write, and print on any subject,” but newspapers report a Pennsylvania jury convicting a blasphemer in 1799.
Most constitutions in 1791 explicitly guaranteed freedom of the press. Take, for instance, New Hampshire: “The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.” Nevertheless, a year after ratifying the First Amendment, New Hampshire passed a law making it a crime “wilfully [to] blaspheme the name of God, Jesus Christ, or the Holy Ghost.” Consider also Massachusetts, whose 1780 constitution guaranteed that “the liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth.” Just two years after ratifying this constitutional provision, the state turned around to pass a blasphemy law: “If any person shall willfully blaspheme the holy name of God . . . [he] shall be punished.”
Religious liberty was a standard guarantee of founding-era state constitutions. New Jersey and Delaware had typical provisions. Yet the constitutional guarantee of religious freedom did not prevent New Jersey from enacting a 1796 statute punishing anyone who “wilfully blaspheme[s] the holy name of God . . . by cursing or contumeliously reproaching Jesus Christ, or the Holy Ghost, or the Christian religion.” Nor did religious liberty prevent Delaware from including “An Act Against Blasphemy” in its official 1797 compilation of state statutes.
The appellate courts of the early republic crystallized this understanding of constitutional freedom. In 1810, New York prosecuted a man named Ruggles for using profane epithets to insult our Lord and our Lady. When the jury convicted him of blasphemy, Ruggles appealed to the New York Supreme Court. (Until the state restructured its court system later in the nineteenth century, the New York Supreme Court was an important appellate court – now best known for deciding Pierson v. Post, a staple of first-year property courses.) The celebrated jurist James Kent, then serving as Chief Justice, wrote for the unanimous court to affirm the conviction as consistent with constitutionally guaranteed “free exercise.” This unanimous court was also a bipartisan one, consisting of both Democratic-Republican and Federalist appointees who, differing on much else, agreed that constitutional liberty allowed for prosecuting blasphemy.
In the 1824 Updegraph case, the Pennsylvania Supreme Court sustained the validity of the state’s blasphemy law against a free speech challenge. Updegraph, the criminal defendant, had appealed his blasphemy conviction under both the federal Free Speech Clause and the Pennsylvania analogue. Not until 1833 would the U.S. Supreme Court hold the federal Bill of Rights inapplicable to the states, so Updegraph’s lawyer made the federal constitutional argument, and the Pennsylvania high court addressed it as relevant to the case. The court ruled that neither the federal Free Speech Clause nor the Pennsylvania equivalent had rendered the colonial blasphemy statute “obsolete [or] virtually repealed.” This case also helped develop the legal doctrine on blasphemy. “Opinions seriously, temperately, and argumentatively expressed” counted as protected religious speech, but the “despiteful railings” of blasphemers did not. Under this test for blasphemy, “it is only the malicious reviler of Christianity who is punished.”
By 1868, the constitutional doctrine of Ruggles and Updegraph had become the standard fare of legal treatises. In that year, Thomas Cooley published an influential treatise on constitutional law, which summarized the blackletter doctrine of religious liberty and free speech: “Blasphemy is punishable as a crime. . . . [But] to forbid discussion on [the] subject [of religion] would be to abridge the liberty of speech and of the press. . . . [For blasphemy] a bad motive must exist; there must be a wilful and malicious attempt to lessen men’s reverence for the Deity.” A separate 1880 work by Cooley, which specifically treated federal constitutional law, recognized the law of blasphemy as consistent with the federal First Amendment.
Unsurprisingly, then, freedom of speech and religious liberty posed no barrier to New Jersey’s high-profile conviction of Charles Reynolds for blasphemy in 1887. This case, centered on the New York suburb of Morristown, New Jersey, made daily headlines at the time. (And it is still well-known to legal historians, serving, for example, as the opening vignette of David Sehat’s important book on religious freedom.) The vigorous free speech argument of Reynolds’ defense attorney was promptly rejected by judge and jury — and by the day’s commentariat. Responding to the Reynolds case, the Albany Law Journal compared blasphemy prosecutions to libel prosecutions, and the New York Times explained that “obscene literature and blasphemous literature stand upon the same footing.”
The U.S. Supreme Court shared this view, as it explained when discussing the federal First Amendment in Robertson v. Baldwin (1897). “The freedom of speech and of the press (art. 1) does not permit the publication of libels, [or] blasphemous or indecent articles . . . .” The lower federal courts interpreted the federal First Amendment in the same way. “Freedom of speech and of the press is secured by the constitution of the United States and the constitutions of most of the states. This constitutional privilege implies a right to freely utter and publish whatever the citizen may please . . . except so far as such publication, by reason of its blasphemy, [or] obscenity . . . may be a public offense.” To those best acquainted with the law at the close of the nineteenth century, blasphemy fell outside the scope of First Amendment protection.
Nor did constitutional guarantees of non-establishment stand in the way of blasphemy laws, either at the founding or in the nineteenth century. Drawing on their colonial tradition of religious independence, the mid-Atlantic states of Pennsylvania, Delaware, and New Jersey constitutionally barred religious establishments during the entire antebellum period. Pennsylvania’s 1790 provision was characteristic: “No preference shall ever be given, by law, to any religious establishments or modes of worship.” Yet we have records of five blasphemy prosecutions in late-eighteenth and early-nineteenth century Pennsylvania. The Updegraph case in Pennsylvania and the Chandler case in Delaware both explained how prosecuting anti-Christian blasphemy was consistent with the constitutional ban on religious establishments. And, as we have seen above, New Jersey proscribed blasphemy by statute in the aftermath of the First Amendment and successfully prosecuted blasphemy in the aftermath of the Fourteenth.
Other states confirm that, even in the wake of the Fourteenth Amendment, constitutional bans on the establishment of religion permitted blasphemy laws. In 1868, South Carolina both ratified the Fourteenth Amendment and passed its Reconstruction constitution, which mandated that “no form of religion shall be established by law.” Just a few years later, the state’s legislature (which, like the 1868 constitutional convention, embodied the ideals of Reconstruction) passed a blasphemy law. Similarly, Iowa’s constitution had copied the language of the federal Establishment Clause: “The General Assembly shall make no law respecting an establishment of religion.” But this posed no barrier to the blasphemy law Iowa passed in 1897 — a law the Iowa Supreme Court was still upholding as of 1974.
So far, originalist judges, scholars, and public intellectuals have largely ignored this history. Originalists need to address this evidence head-on. They should either adopt the original meaning as their own view of the First Amendment, or explain why they are declining to do so. Originalists could even fight back against my historical interpretation by presenting an alternative reading of the history, though such a reading would run up against evidentiary problems. But for champions of historically informed constitutional interpretation, ignoring history should not be an option.
T.A.D.
