If the First Amendment is Amended, Would the Court’s First Amendment Jurisprudence Continue?

July 10th, 2014

During an executive business meeting over the proposal to amend the First Amendmetn, Senator Durbin explained that Congress still could not regulate speech based on subject matter. Senator Ted Cruz interjected a question, and asked where in the Amendment is the phrase “content neutral.” (It’s not in there). Senator Durbin responded that Cruz, a former “Supreme Court clerk,” should know that the “content neutral” test is deeply rooted in the Court’s jurisprudence. Cruz shot right back, saying something to the effect of, “But this changes the Constitution.” Durbin said nothing in this Amendment would change the Court’s First Amendment jurisprudence about content neutrality. That can’t be correct.

If this Amendment is passed (which thankfully it won’t), it would trump the First Amendment. Later-in-time Amendments prevail over earlier parts of the Constitution. Sometimes this is explicit. The 21st Amendment repealed the 18th Amendment. Sometimes it is implied. The 14th Amendment modified the 11th Amendment, with respect to waivers of state sovereign immunity.

Following the debate over whether RFRA expanded the scope of Pre-Smith “Free Exercise” jurisprudence, I think this is a really important point that thankfully Senator Cruz raised. At the minimum, any responsible Amendment should, in the least, reference this “content neutral” jurisprudence, in much the same way that the text of RFRA referenced some of the Pre-Smith jurisprudence.  But the amendment, as proposed, does no such thing. This is why original public meaning is so, so much more important than the intents of any individual senators.

Here are some of my other tweets from during the hearing.

From Senator Cruz:

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And a few other good lines from Senators Hatch, Cornyn, and Lee: