George Will worked himself into quite a lather today about a law review article by some visiting assistant law professor at Duke that argues that the principle of free speech might be subordinated to governmental interests in combating corruption and the distorting influences of wealth on the political process. No surprises here: Will is a leading opponent of campaign finance laws.
But, Will is also, of course, a prominent voice for constitutional originalism. Here he is lambasting Sen. Schumer for not appreciating the “original intent of the commerce clause.” So I wonder if Will agrees with both liberal Harvard con-law professor Richard Fallon and this anonymous blogger on The Federalist Blog, which seems to be staunchly conservative, that the original meaning of the free speech clause was only to protect citizens against the threat of seditious libel, the common-law principle under which they could be punished for embarrassing or maligning public officials? For that matter, I wonder what Will thinks the original intent of the free speech clause was, since, under his constitutional schema, the original intent is all that matters.
But of course Will doesn’t address these questions in his article, because that would force him to confront either of two possibilities: that the original meaning doesn’t match what he thinks the First Amendment ought to mean, or that there is simply no agreement on what it means. The first possibility would reveal to Will what should be clear to all of his readers: that his originalism is selective, and that, like everyone else’s, Will’s Constitution reflects Will’s policy preferences. The second possibility would suggest to him what liberal legal scholars have been saying for decades: that the search for original meaning is fruitless and impossible, a farce of the first order, and that each generation must ultimately define the Constitution for itself.