Free Speech on Campus and Thomasian Originalism

Mark Graber

This week I received a mailing asking me to sign a petition supporting Professor Stephen F. Smith’s candidacy for the Board of Trustees at Dartmouth College. Professor Smith, a former clerk for Justice Clarence Thomas, seems particularly concerned that Dartmouth has been violating the free speech and due process rights of conservative students. Not knowing the details, I cannot say whether he is right by my understanding of due process and free speech. I am a bit puzzled, however, by how Dartmouth could be said to be violating the due process and free speech rights of students as Justice Thomas seems to understand these matters.

Although, again, I do not know the details of present affairs, I rather doubt that the Dartmouth administration has done anything inconsistent with the free speech and due process rights of college students as they were understood in 1769, when Dartmouth was founded. Similarly, good reason exists for thinking that Dartmouth is not violating free speech and due process rights as they were understood in 1791, when the Bill of Rights was ratified. This is probably correct, even if we forget that, as a private institution, students have no free speech or due process rights against Dartmouth College. Insulting speech in 1791 was not liberty, but license and, as such, was rarely protected. Of course, the possibility exists that at some later date Dartmouth adopted a textual guarantee of due process and free speech (I don’t know). Still, given that Justice Thomas insists on interpreting the due process clause of the Fourteenth Amendment (ratified in 1868) as meaning what due process meant in 1791 when the due process clause of the Fifth Amendment was ratified (see, for example, his dissent in Kelo, the condemnation case), then those who follow in his footsteps would seem honor bound to interpret any unmodified reference to free speech and due process adopted by Dartmouth College in the nineteenth or twentieth centuries to mean what free speech and due process meant at Dartmouth during the eighteenth century. Matters become even more difficult when one recognizes that the Dartmouth administration may believe that there is a culture war going on and that, following Bush administration practices heartily endorsed by Justice Thomas, they may think that persons on the wrong side of the culture war do not have free speech or due process rights.

One suspects, of course, that Professor Smith means approximately what I mean by free speech and due process, that our differences are probably at the margins (for those interested, there is an old 1994ish Vanderbilt Law Review piece in which I suggest constitutional problems with proposed speech regulations on campus). Both of us, I suspect, believe that the due process rights of Dartmouth College students should reflect our best contemporary notions of fairness and that free speech rights on campus should be consistent with contemporary notions of intellectual exchange. When we speak of free speech and due process, we do not refer to particular practices in 1769 or 1791, but to broader values whose understandings have changed and improved over the years. Neither conservatives nor liberals, this suggests, are Thomasian originalists in everyday discourse. Thomasian originalism, Professor Smith's candidacy for the Board of Trustees seems to indicate, is a doctrine for measuring the rights of people conservatives do not like and has no bearing on the rights of conservative students.
Posted 7:44 PM by Mark Graber [link]