This is the fourth installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.
William Blackstone is the most important legal commentator of all time. In the 1760s, he wrote a four-volume book called the Commentaries on the Laws of England. That book is now considered “the most influential law book in Anglo-American history.” And it earned Blackstone the title “oracle of the common law in the mind of the American Framers.”
Today, Supreme Court justices cite Blackstone more than any other commentator on everything from the constitutionality of the Consumer Financial Protection Bureau, the continued vitality of Roe v. Wade, and subpoenas to the President. In all, they cited him in eleven cases last term, and the term before in thirteen. In a court that only decides sixty-some cases each term, that means Blackstone appears in one-in-five cases give or take.
While Blackstone is a darling of conservative justices, liberal justices have called the man an “eminent common law authority” and his influence on the Founders “most profound.” 🙄 He is so pervasive, the Court “sometimes proceeds as if the … founders understood the Constitution to silently enact Blackstone’s Commentaries in between or underneath” its text.
Justice Clarence Thomas is Blackstone’s biggest fan. To Thomas, the Commentaries is the best evidence of the meaning of the common law in the mind of the Founders. Thomas turns to him on the right to bear arms, copyright, the weight of precedent, immigration, and more.
Thomas also cited him in McKee v. Cosby as support for un-constitutionalizing defamation law — for making it easier for public officials successfully to sue their critics. Blackstone, Thomas suggests, demonstrates that the Founders did not believe that the freedom of the press somehow protected government critics from onerous libel laws.
In doing so, Thomas echoed Justice Byron White, who decades earlier said, “The men who wrote and adopted the First Amendment were steeped in the common-law tradition of England.” Those men “read Blackstone, ‘a classic tradition of the bar in the United States,’” and “learned that the major means of accomplishing free speech and press was to prevent prior restraints,” i.e., prevent censorship before publication not limit punishment after publication.
Still, even Thomas has recognized that we should not always follow Blackstone’s lead. He wrote in Trump v. Mazurs USA LLP, we need not rely on Blackstone if the law he summarized “had been a significant complaint of the American Revolution,” and where the American experience “confirmed” a contrary precedent.
The case can certainly be made (and, indeed, will be made) that freedom of the press was a significant complaint of the Revolution. As Arthur M. Schlesinger Sr. wrote in Prelude to Independence, in the run up to the war, “Bristling controversial articles . . . signaled the change and inevitably brought the patriot prints into head-on collision with the English common law of seditious libel.”
And, as we’ve discussed a bit already, early American experience confirmed contrary precedent to that of England—especially when it came to criminal or civil libel actions attempting to punish government critics. Even the Sedition Act, after all, allowed for truth as a defense to a seditious libel charge unlike in England. As Judge Kent explained after the Founding, unlike the British, “the people of this country have always classed the freedom of the press among their fundamental rights.”
But before we get to that, we should step back and take a look at Blackstone the man and his relationship with the Founders. And let’s be clear about this point: whatever the Supreme Court has to say about it, the Founders did not revere Blackstone, far from it. As Thomas Jefferson wrote, Blackstone did “more towards the suppression of the liberties of man, than all the million of men in arms of Bonaparte.” This is that story.
Blackstone & His Book
Blackstone, born in 1723, was a man. He was also “stiff, stuffy, and pompous from childhood.” And he was a failure. He was a middling lawyer, thwarted in his academic aspirations and, early on, deemed unfit for professorship. As a judge, “his rulings . . . were set aside more frequently than those of any other.”
But above everything he was persistent, prolific, and damn good at writing.
In 1753, still not a professor, Blackstone started informally lecturing students on the common law as a side hustle. Having been passed over for a professorship in the Roman civil law, he set out to make sense of the “huge, irregular Pile” of the English common law. After five years, Oxford finally formalized his instruction, naming him the first professor of common law.
Inspired by his success, by 1765, Blackstone published his first volume of the Commentaries on the the rights of person, closely tracking his lectures. In 1766, he published the second (on the rights of things), the third (of private wrongs) in 1768, and the fourth (of public wrongs) in 1769. By the time he finished the forth volume, he had already published a third edition of both volumes one and two.
Like I said, the guy could write.
Before the first American edition appeared around 1772, a thousand copies of his Commentaries circulated in the Colonies. The earliest American edition introduced an additional 1,500 sets with more than half sent to Massachusetts, New York, and Pennsylvania. Copies found their way into the hands of future President John Adams, future Supreme Court Justice James Wilson, and even future Chief Justice John Marshall.
While it’s unclear exactly how many floated around the Colonies, a year before the Revolution, Edmund Burke said that he heard “that they have sold nearly as many of Blackstone’s Commentaries in America as in England.” Blackstone’s supporters have pointed to this as proof of the Commentaries’ early influence. But it was more likely than not a “rhetorical flourish” in a longer speech attempting to demonstrate the Colonies’ commitment to English law. (Spoiler: It didn’t work.)
To capture the influence of Blackstone in the Colonies after the Revolution, we have to look beyond pithy quotes and even formal institutions. After all, there were only four law professors in the young country by 1794. Most early lawyers apprenticed and read the law, formal instruction was sporadic. They also outlined in blank books (then called common-placing) legal principles from their readings of authorities suggested by older lawyers.
A review of some of these still-existing outlines show that Blackstone did not play a central role in eighteenth century legal education. Instead, many were dominated by Bacon, Coke, and Hale. Chief Justice Marshall cited Blackstone just a handful of times in his outlines.
And, tellingly, the Founders’ correspondence, with the exception of Adams, only sporadically referenced the man — often to bash him.
Based on this and other research like it, one scholar concluded that “the widespread influence of Blackstone that resulted from the accessibility of the Commentaries was not instantaneous.” The better view is that while the Founders “may have read the work and viewed it favorably, the full force of the Commentaries’ influence would not be felt until subsequent generations.”
Blackstone’s real influence seems to have begun — at the earliest — after the Founding in 1803. It’s in that year that William & Mary professor St. George Tucker (it’s a good name) found a publisher for his edition of the Commentaries. Tucker did not just republish the book. He added his own annotations, contrasting English and American law. His book was “an instant success” and became “the definitive edition of Blackstone available in America.”
Even so, Blackstone’s influence did not immediately reach the Supreme Court. Between 1801 and 1830 of the 856 signed opinions the Court produced, only sixteen (some two percent) contained citations to Blackstone. And Blackstone was offered up to the Court by advocates on behalf of the parties in only 68 of the 856 opinions (about six percent). A far cry from today’s numbers.
In short, the timeline does not support the Court’s truism that Blackstone was the equivalent of a common law oracle at the Founding. He was known of course. But he was not cited as much as he is today, he was not treated with the same reverence, and the Commentaries were not viewed as unimpeachable.
Blackstone & The Founders
Even if we accept that the Founders were familiar with the Commentaries — that familiarity should not be confused with acceptance. It would be like suggesting that Ayn Rand was a Marxist because she owned a copy of The Communist Manifesto. Blackstone, after all, was a rabid Tory and no friend to the Founders’ cause.
Let us count the ways.
As a member of Parliament from 1761 until 1770, Blackstone voted in favor of and was a chief defender of the Stamp Act (that detested statute confronted with the rallying cry of No Taxation Without Representation). He also denied “that Americans could appeal to the common law in defense of their rights.” And he declared the Colonies “a conquered territory and thus subject to Parliament’s authority.”
He also believed that ultimate sovereignty resided in Parliament not the People. So, of course, “lawyers of the founding generation . . . subjected Blackstone’s work to sharp criticism.” These weren’t just workaday lawyers either. We’re talking about Thomas Jefferson, James Wilson, and Tucker — all of whom were openly hostile to Blackstone and devoted to making “their own law” — a decidedly American law.
Jefferson’s problem with Blackstone began as early as 1776. After the Revolution, Jefferson demanded that the then-existing Virginia laws be repealed and “adapted to our republican form of government.” A compatriot suggested that they adopt Blackstone and purge “what was inapplicable, or unsuitable to us.” But Jefferson fundamentally disagreed because the end product would retain the “same chaos of law-lore from which we wished to be emancipated.”
While Jefferson won that battle, he did not stem Blackstone’s acceptance in the young country— the simplicity of the Commentaries was too alluring to young lawyers . But he never stopped trying. For years, “Jefferson derided the Commentaries as dangerous for its . . . over-simplified view of law.” But more importantly, in reliance on Blackstone, Jefferson saw “a retreat from the ideals of the Revolution.”
By 1810, Jefferson lamented that young lawyers seemed to believe “that every thing which is necessary is in [Blackstone], & what is not in him is not necessary.” In 1811, he wrote to the future Virginia Senator William Reeves that the country had been filled with “Blackstone lawyers” “who render neither honor nor service to mankind.”
A year later, Jefferson wrote to John Tyler, Sr., governor of Virginia, that a student’s “indolence easily persuades him that if he understands that book, he is a master of the whole body of law.” In 1814, Jefferson wrote to political philosopher Thomas Cooper that the Commentaries had caused “the general defection of lawyers and judges from the free principles of government.” That same year, he wrote that Blackstone was “making tories of those young Americans whose native feelings of independance do not place them above [Blackstone’s] wily sophistries.”
While Jefferson did not fear the loss of liberty from force, he feared, he wrote, “English books, English prejudices, English manners,” all of which undercut “the principles which severed us from England.” So to his death, he fought against acceptance of Blackstone. Months before it, he wrote to James Madison, now his decades-old friend, about plans for the appointment of a law professor at the University of Virginia, where he served as rector:
In the selection of our Law Professor, we must be rigorously attentive to his political principles. You will recollect that before the revolution, Coke Littleton was the universal elementary book of law students, and a sounder whig never wrote . . . . You remember also that our lawyers were then all whigs [ed: those who valued republicanism].
But when . . . the honied . . . Blackstone became the student’s hornbook, from that moment, that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue. They suppose themselves, indeed, to be whigs, because they no longer know what whigism or republicanism means.
St. George Tucker.
By the time St. George Tucker, a Revolutionary War veteran and “the first modern American law professor,” received a letter from Jefferson in 1793, he was already annotating Blackstone for Americans. Jefferson had just met with Tucker’s son-in-law who told him that he had only yet read Blackstone. Jefferson told him at once to put down Blackstone and read Coke, such that “what remains of the law will be mere amusement.”
Tucker was appointed to the professorship at William & Mary with just months to prepare. Without time to devise his own text, he turned to repackaging the Commentaries “and occasionally to offer remarks upon such passages . . . either because the law had been confirmed, or changed, or repealed, by some constitutional or legislative act of the Federal Government, or,” in the case of his students, “of the commonwealth of Virginia.”
In the end, Tucker’s American edition of the Commentaries was the first “uniquely American” commentary on the law. Through his 800 pages of annotations and 1000 footnotes, it was not a memorial to Blackstone. It was “an engagement of it in combat.” Tucker was “troubled not so much by the content of the Commentaries,” but “by its jurisprudence and political philosophy.”
The Revolution was “justified by the repudiation of two basic British tenets: first, the rejection of British views concerning the nature and locus of sovereignty; second, the rejection of the British Constitution as a near-perfect, or even a relatively good, embodiment of political philosophy.” While “Blackstone did not create . . . the British orthodoxy of the eighteenth century,” “he did embody” it.
Thus, an American Commentaries was vital, Tucker thought, because Americans had shed that orthodoxy through revolution. The Colonies’ independence “produced a corresponding revolution not only in the principles of our government, but in the laws” — which, as a result, became “irreconcileable to the principles contained in the Commentaries.”
The simplicity of the observation masks its persuasive force. Of course the Commentaries established under one system of government should not control the meaning of a law under an entirely different kind of government. But this was exactly the battle Tucker had to wage.
In Tucker’s words, from the Revolution onward, the Commentaries became less important. They became “only a methodical guide, in delineating the general outlines of the law in the United States, or at most, in apprizing the student of what the law had been.”
James Wilson, who let’s be honest, you’ve probably not thought about much lately or ever, was a giant; he needs a Broadway musical of his own. He was one of the few Founders who signed both the Declaration of Independence and the Constitution, and he had more of an effect on the latter than anyone but James Madison (the guy who wrote the thing). He also called Blackstone a “great supporter” of “systematic despotism.” (🔥.)
Wilson wanted to replace Blackstone and his Tory ideals and become his American equivalent. He would never succeed. That distinction is more rightly Tucker’s. But in 1790, Wilson delivered a series of lectures — 700 pages in all — much like Blackstone had before him. This wasn’t like the law course you remember. For his first lecture, Wilson stood before students, yes, but also the “President of the United States, with his lady — also the Vice-President, and both houses of Congress.”
Invoking Blackstone’s professorship at Oxford, Wilson posed a question, “Should the elements of a law education . . . be drawn entirely from another country — or should they be drawn, in part, at least, from the constitutions and government and laws of the United States, and of the several States composing the Union?” In other words, should we be educating British lawyers or American ones?
Wilson argued for the latter, for an education based on a government where “the supreme or sovereign power . . . resides in the citizens.” Ever the revolutionary, he explained that this sovereignty was embodied in the “constitutions and governments and laws of the United States, and the republics, of which they are formed” — all of which were “materially different” and “materially better” than that in England.
Blackstone’s view of the law of England, then, “deserved to be much admired” but “ought not to be implicitly followed” in the United States, Wilson said. Blackstone, through no fault of his own, was an intellectual captive of the English theory of things — an un-American theory — and, thus, far from “a zealous friend of republicanism.”
The only experiment in republicanism from which Blackstone could draw was England’s disastrous one under Cromwell. So it made sense that Blackstone would “feel a degree of aversion, latent, yet strong, to a republican government.” And, having grown up under one government, it was not surprising that that government “might steal imperceptibly upon [Blackstone’s] mind” and influence him in thinking that a republic is “its rival, and . . . enemy.”
Wilson took this view of Blackstone to the bench of the Supreme Court. In 1793, in Chisholm v. Georgia, he wrote that Blackstone’s views on the unchecked power of the king — answerable to no one —was an “extensive principle, on which a plan of systematic despotism has been lately formed in England.” Blackstone, Wilson said, was “if not the introducer, at least the great supporter” of this despotism.
Rejecting the “principle . . . that all human law must be prescribed by a superior,” Wilson said the law in the United States was much different: “laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.”
Blackstone & Freedom Of The Press
While it’s certainly true that the Founders had their doubts about Blackstone generally, it’s worth asking whether those reservations extended to his view of freedom of the press. Famously, Blackstone, in his Commentaries, maintained that “the liberty of the press . . . consists in laying no previous restraints upon publications.” Nothing more.
But that was hardly the only view as to the scope of the liberty of the press — especially in the early United States. Taking again Jefferson, Tucker, and Wilson, each rejected Blackstone’s view. And while we focus on them, they were not alone. Scholars have concluded that early Americans disagreed “that freedom of the press consisted only of freedom from prior censorship.”
Take first Jefferson’s transatlantic input on the Bill of Rights. Madison had, in June 1789, proposed to the House a list of amendments that would eventually become the Bill of Rights. One proposed by Madison provided that, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”
After Madison sent a copy of the amendments to Jefferson in France for his thoughts, Jefferson wrote back suggesting several modifications (in bold). One related to the freedom of the press:
I like it as far as it goes; but I should have been for going further. For instance the following alterations & additions would have pleased me. Art 4. “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.
While Madison’s proposal was general in nature, Jefferson’s was specific. That specificity reveals Jefferson’s more liberal view of freedom of the press. While Blackstone limited liberty of the press to freedom from prior restraint alone, Jefferson would have gone further and protected true speech from punishment after publication.
Jefferson’s fight against the Sedition Act of 1798, which provided for punishment after publication for libels on government, confirms that Jefferson rejected Blackstone’s limited understanding of freedom of the press. In drafting the Kentucky Resolutions, Jefferson argued that the Act, even though it nominally provided truth as a defense (itself more liberal than Blackstone’s views and on its face consistent with Jefferson’s view of the First Amendment), was unconstitutional. The Act, he said, “is altogether void and of no force.”
Controversy over the Act boiled down in part to a controversy over whether Blackstone’s understanding of freedom of press should be accepted or not. Federalist supporters in Congress argued that the Act was not a prior restraint and, thus, not an infringement on the liberty of the press under the Commentaries. Jefferson’s supporters, however, disagreed.
Virginia Representative John Nicholas, rising in opposition to the Act on the floor of Congress in Philadelphia, argued, “It is a manifest abuse of Blackstone’s authority to apply it as it has been here applied [in defending the Act].” The reason? Blackstone spoke of a different government.
As Nicholas said, “It must be remarked, in [Blackstone’s defense], that the nature of their government justifies more rigor than is consistent with ours . . . . [H]is observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition.”
But “very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of Congress, by the authority of [Blackstone], all are subjected to their power.”
As we know, the Act expired in 1801, and Jefferson pardoned those convicted under it: “I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
St. George Tucker
Consistent with these attacks on the Sedition Act, which again would have given Blackstone no heartburn, Tucker, in his annotations to the Commentaries, wrote that the Act “excited more apprehension, and greater indignation in many parts of the U. States . . . than any other measure of the federal government.” It was, he said, “supposed by many to amount to a most flagrant violation of the constitution.”
Explaining that Parliament, at the end of the seventeenth century, declined to continue to a system of licensing previously practiced, Tucker wrote that “although this negative establishment may satisfy the subjects of England, the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government.”
Instead, they ratified a constitutional amendment protecting speech. That amendment stood, Tucker said, as a “barrier against the possible encroachments of the government.” This principle could not have been more “strenuously asserted.” Yet, the Sedition Act challenged this assertion by hiding behind the limited Blackstonian definition of freedom of the press as freedom from prior restraints.
But, Tucker wrote in his appendix — his appendix to the most popular copy of Blackstone’s Commentaries in the United States: “this exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press.” (His emphasis.)
Maybe even more fundamental to understanding the nature of the freedom of the press in England and the United States though was the difference between Parliament and the legislatures on this side of the Atlantic. Parliament was deemed supreme in England and operated as a check on the royal prerogative. On the other hand, the legislatures in the United States “no less than the executive, is under limitations of power” by the People.
What’s this mean for press freedom? Well, as Tucker explained it:
In the United States, the great and essential rights of the people, are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great-Britain; but from legislative restraint also; and this exemption, to be effectual must be an exemption, not only from the previous inspection of licencers, but from subsequent penalty of laws.
In debates over the proposed constitution in the Pennsylvania convention, James Wilson said, “I presume it was not in the view of the honorable gentleman to say there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of the liberty of the press is not carried so far as this in any country. What is meant by the liberty of the press is, that there should be no antecedent restraint upon it.”
We can excuse Wilson’s apparent adoption of the Blackstonian definition of freedom of press based on his circumstance. In the moment, he stood before opponents of the proposed constitution that was almost as much his as it was Madison’s. Those opponents pressed him on why the new proposal did not contain a protection for the liberty of the press, and Wilson needed to parry those attacks.
Within a few years after he secured support for his constitution, however, he rejected — if not Blackstone’s prior restraint doctrine — at least the central tenants of libel law according to the Star Chamber, as restated by Blackstone. The first, that libels against public officials are necessarily worse than other libels. The second, the same one challenged by Jefferson: that truth, like falsity, could also be punished as libel.
In his Lectures on Law, Wilson indicted the Star Chamber for “wrest[ing] the law of libels to the purposes of [public] ministers.” The first rule of law of the Star Chamber had been that “a libel against a magistrate, or other publick person, is a greater offence than one against a private man.” But, Wilson said, “This, in the unqualified manner here expressed, cannot be rationally admitted.” Instead, in this country, “Other circumstances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct.”
Wilson also attacked another rule of law in the Star Chamber: the greater the truth, the greater the libel. (As Blackstone put it, “it is immaterial with respect to the offence of a libel, whether the matter of it be true or false.”) The Star Chamber and Blackstone, Wilson said, maintained that truth was irrelevant because “the provocation and not the falsity . . . is the thing to be punished criminally.” But Wilson rejected that logic.
According to Wilson, “A libel is a violation of the right of character, and not of the right of personal safety.” “It is no wonder,” he told his students, that Blackstone’s “reasonings on this crime are inaccurate, when its very principle is mistaken.” Wilson also faulted the “gross inconsistency” of the position. The libeler, he wrote, is faulted for speaking a libel rather than seeking redress in court. Yet, the law punishes truth because it is assumed that the victim of the libel will be provoked to breach of the peace. “Why,” Wilson ask, “is not this advice [against seeking private revenge] given consistently, to the person provoked by the libel?”
Blackstone, In The End
Blackstone hated the Colonists and the cause of independence. He hated republican sentiment. He rejected the idea that sovereignty resided, first, in the People. Why the Supreme Court treats him as the final arbiter of questions of history more than 200 years later defies understanding.
We need not take down Blackstone totally though for our present purposes. Rather, we need focus only on how Blackstone might be used by opponents of free expression to punish speech that they disagree with; how Blackstone might be used by public officials and public figures to justify intrusion into the free exchange of ideas, to avoid the burning rays of criticism.
Justice Thomas has laid out precisely how the case against Blackstone must be made. First, we must prove that freedom of the press was a significant complaint of the American Revolution, and, second, that the early American experience confirmed a contrary precedent. Here, we have set the table for this inquiry.
Soon enough, we’ll make the substantive case for an American understanding of freedom of the press — one from an originalist perspective. We’ll use Justice Thomas’ own test to do so. And, after we shorn ourselves loose of the English understanding, we will explain how the most important First Amendment decision in the Supreme Court’s history faithfully encapsulated that American understanding.