The WSJ's Collin Levy weighs in on Senator John McCain and the issue of judicial nominations.
While Mr. McCain has listed the names of justices he admires on the trail before, he has generally steered clear of the courts as a major topic.
In states like South Carolina, he preferred to invoke his pro-life voting record -- and the tactic seems to have paid off. He won the state with around 27% support from evangelical voters, according to CNN exit polling. In Florida, he won endorsements from a coalition of pro-life and value voters, and campaigned hard in evangelical strongholds near the Georgia and Alabama borders.
The problem for Sen. McCain is that the justice train runs straight through the middle of McCain-Feingold, a sore point for many judicial conservatives. The landmark campaign finance law, officially known as Bipartisan Campaign Reform Act of 2002, is one of the Arizona senator's proudest achievements, one he would presumably seek to protect if it was within his power. But the namesake law, which aimed to take the money out of politics, has created restrictions on political speech that most conservatives -- and conservative judges -- find unconstitutional. . . .
[This is] a salient question for "values" voters, not because of McCain-Feingold itself, but because of its potential role as a litmus test. Few "strict constructionist" judges would vote to uphold it, so evangelicals who may like Mr. McCain's legislative record on abortion worry nonetheless that his attachment to campaign finance regulation may get in the way of nominating properly conservative judges.
But Ms. Levy is not simply piling on Senator McCain. She notes there are questions about Governor Mitt Romney's record on judges too.
Aside from his mid-term conversion on the abortion issue, he faces his own little-explored set of obstacles stemming from his judicial record in Massachusetts. His appointments as governor, for instance, have yet to get an airing. In 2005, the Boston Globe noted that Mr. Romney had a habit of passing over conservative lawyers for his appointments of judges or clerk magistrates. Of the 36 people he elevated, more than half of them were either Democrats or independents with a habit of donating to Democratic candidates.
Asked about those numbers at the time, Mr. Romney said: "People on both sides of the aisle want to put the bad guys away." Fair enough. The criteria for lower court judges can be different than the higher courts, where Mr. Romney has said he would be committed to strict constructionists. But Mr. Romney's tendency to swap principles when politically convenient will leave some judicial conservatives unreassured.
Related Posts (on one page):
- An Overlooked Potential Benefit of Conservative Distrust for McCain:
- The Downside of Mavericks:
- Assessing McCain:
- McCain & Romney On Judges:
- Calabresi & McGinnis on McCain & Judges:
- John McCain and the Judiciary:
- Novak on McCain & Judicial Nominations:
- Levy on McCain and Judges:
- McCain & Judicial Nominations:
Which is why I’ll say now what I said at my last caucus – it’s more important to elect good legislators and a good executive who will create laws (or repeal them) that fit your worldview of what you think public policy should be. Ultimately they’re the ones with the real power and consequently the ones who can do the most damage or good. Judges can’t act until a case or controversy comes before them and you’re hoping to effect public policy with the “right” judicial ruling, you’ve probably waited too late.
Bottom line: vote for the candidate who you think will sponsor or support legislation you agree with or will oppose, vote against, or veto legislation you disagree with. That’s the real power and if you’re willing to trade someone who is deficient in that area for the hope that s/he will support or appoint “good judges,” you’re in for a rude awakening.
Conservatives seem fine with limiting a number of aspects of free speech -- for example, the free speech rights of students or Government employees. And I’ve never seen any credible argument that the legislation violates some strand of originalism. Given that, I’ve never understood conservatives fierce opposition to campaign finance reform. What obvious fact am I missing?
-- Congress shall make no law; the states can do what they want.
-- The strict constructionist candidate would have to oppose Congressional attempts to restrict obscenity, since I fail to find anything in the 1st Amendment to support the Supreme Court's finding that really disgusting or unsavory speech somehow isn't "speech" at all.
-- The strict constructionist candidate would, if he accepts at least some of the Supreme Court's gloss on the 1st Amendment, necessarily oppose anti-flag burning legislation.
So, under what standards is McCain's support for a strict constructionist approach to the 1st Amendment inferior to the support of the other mainstream Republican candidates? You could certainly argue that Ron Paul shows a far greater level of fealty to the words of the 1st Amendment, but (curiously) I don't see any of McCain's critics rushing to support Paul.
As far as judicial nominations go: it's been said before, but exactly what would Republicans be doing now if the Senate (then under Republican control) had succeeded in moving to a simple majority rule for approval of judicial nominees? It seems to me that McCain's role in bringing about some kind of bipartisan agreement on judicial nominees may very well (come January 2009) be the only thing stopping the next President from nominating far-left judges.
The difference between Federal action &private or local action, and the significance of political speech.
Students at a university or Federal employees can find another school or job if they don't like the rules at the place where they are now. Students at a public school aren't adults yet, and their parents can run for school board if they don't like it.
A citizen's right to publicly call the king a fink is the central motivation of the 1st amendment, and it's what's restricted in the last 60 days before an election, and that restriction gets applied to everyone whether they implicitly accepted it or not.
Or is Levy right? Maybe I'm neglecting some important details of McCain-Feingold...
Read literally, the First Amendment would abolish the law of conspiracy, defamation and libel, and would absolve people of criminal liability if their participation consisted only of organizing or giving orders to subordinates.
Rather than "strict constructionists," (again, as I understand it) there are First Amendment "absolutists" and "balancers." The absolutists figure out whether something is protected or not (through a process that doesn't involve strict construction), and if it's protected then it can't be restricted by state action. The balancers say that the degree of protection varies with the type of speech.
But I'm sure that several of the conspirators and commenters know this stuff much better than I do.
And, needless to say, it would allow you to yell "fire" in a crowded theater without any legal recriminations (I assume the theater owner could eject you, but you couldn't be prosecuted).
That is part of the question. The rest is what "freedom of Speech" means. At the time, it likely simply meant "no prior restraint." You could be prosecuted or sued afterward, but the government couldn't censor it in advance. I assume this isn't what you had in mind from your strict constructionist judicial appointees.
I think it’s because so many advocacy groups are affected by the restrictions imposed by McCain-Feingold and so many pundits and opinion leaders are tied to various advocacy groups (e.g. they get information from them and can get them to provide a ready quote or appear as a guest on a talk show). A lot of political junkies follow the pundits and what they make a priority becomes a priority for their readers, viewers, or listeners.
That could just be me though. I found that once I quit reading or listening to most pundits, that I realized that my priorities about what I thought was most important was different from a lot of people who still do.
Do you have any citations for that? Illya in an earlier post once tried to claim that “conservatives” supported restrictions on speech and he linked to a wikipedia article of all things. The problem of course was that when we actually read the cased cited in the wikipedia article, they were opinions of people like Oliver Wendell Homes and judges from the ironically named “Progressive Era” – neither of which are particularly popular amongst modern “conservatives,” at least as the term is used by people who don’t think that world is arranged in the lines found within a poli sci text book.
Which surprises you more: the passion for Mc-Fein amongst political junkies?; or, the general public's disinterest in this issue? As a followup, are you just as suprised at the disparate treatment, say, the Kelo case gets?
My question for those who might know is:
how does a nominee normally get vetted on an issue like this? It is hard to imagine an interview in which the nominee's notion the relationship between campaign finance jurisprudence and the 1st Amendment would not be at least a rather large animal in the corner of the room.
The point in the WSJ is well taken as far as I am concerned. How will McCain select judges and justices who are like Roberts and Alito, but who, at the same time, also are willing to provide an account of the 1st amendment that is not insulting to the author of Mc-Fein.
I don't think the nomination process is as much of a crap shoot as some people make it out to be. Did anybody in '75 think that Stevens was the ideological twin of Rehnquist? Did anyone believe that Souter was anything better than a shot in the dark who could get easily confirmed?
I think I've already pointed out a number of them:
-- anti-flag burning legislation or proposed amendments
-- prosecutions for obscene speech
-- outlawing terrorist-enabling speech
I don't really think we need "citations" for these propositions. Certainly these free speech restrictions have been part of the official positions of many, many conservative candidates over the last two decades.
I have donated $20 to a polical candidate once and do not plan to donate in the forseeable future, but I still hate McCain-Feingold so I count as one of your group. Besides the fact that I think it unjustly restricts speech, my other problem with it is that it has not done anything to actually clean up corruption or lessen the impact of campaign donations in Washington. It just shifts it around some and lets politicians pat themselves on the back for passing a law that supposedly cleans up the process, while making it easier for incumbants to get reelected.
Do any supporters of McCain-Feingold actually think it has made congress less corrupt and more responsive to its constituents needs?
And since Thompson and Giuliani will have both have dropped out by voting time, I plan to vote for McCain in the Texas primary once again like I did in 2000. National security and the budget trump campaign finance laws and immigration for me and I doubt that he will do a bad job picking judges. Not my ideal candidate, but good enough and certainly more in line with my views than anyone the Democrats will nominate
See, e.g., Morse v. Frederick (2007) (conservative justices holding that a student’s free speech rights were not violated when he was disciplined for showing a “Bong Hits 4 Jesus” sign at an off campus high school event); Garcetti v. Ceballos (2006) (conservative justices cutting back on Government employees free speech rights, essentially silently reversing 30 years of precedent).
I am not arguing that either one of these cases was wrongly decided. Instead, they serve as examples that conservative judges are not always for a robust interpretation of the first amendment's guarantee of free speech rights. Indeed, Justice Thomas, applying some sort of bizarre version of originalism in Morse, argues that high school students have no free speech rights.
I would also note that many conservatives believe the first amendment should not protect flag burning. This is not to say that this position is wrong either. Instead, it highlights my confusion regarding why campaign finance reform is so important to so many conservatives.
...
I don't think the nomination process is as much of a crap shoot as some people make it out to be. Did anybody in '75 think that Stevens was the ideological twin of Rehnquist? Did anyone believe that Souter was anything better than a shot in the dark who could get easily confirmed?
Jan Crawford Greenburg's book is a good source of information for some of this kind of stuff.
my confusion regarding why campaign finance reform is so important to so many conservatives
Because free political debate is one of the fundamental purposes of free speech guarantees, understood as such from day one. It is not in any fundamental way in conflict with the rights of free association or freedom of contract.
The ideas that the first amendment is about teenagers' rights to wear clothing with stupid slogans, or the right of government employees to keep their jobs after pissing off their bosses, are relatively new, not universally accepted, arguably peripheral, and in conflict with other values like state and local governments rights, social interest in how children are raised, employers' rights and free association rights.
MDJD2B is correct in his interpretation. May I suggest that you do a bit of research into what originalism or strict construction means, rather than what you think it means. This would involve looking at, e.g., Dr. Johnson's rather than the definition of "free speech" that you picked up in college. As to the citation to Morse, Justice Thomas is unique among the justices in that he is willing to follow originalism and strict construction to their logical ends.
If you're just pointing out that no one is a pure strict constructionist, fine. But does that really render the term either meaningless or just a synonym for having a right-wing political bias? I hope not. I thought that William Douglas was considered a strict constructionist on the First Amendment, if not in his general jurisprudence.
Originalism has great appeal in many areas of Constitutional Law, but the First Amendment isn't one of them. Robert Bork, if my memory serves, had no real answer for this problem. The libertarian/conservative position on campaign finance is a reasonable one, but might I suggest its introduction in the 1970s smacks of the same "living constitutionalism" that is elsewhere decried?
Have there been any defensible originalist arguments regarding the First Amendment that anyone is aware of? Would it track Chaplinsky, or restrict the First, as Phelan suggests, to "political debate" (have fun defining that)?
What, if anything, does your assertion mean? (See most of the posts on this thread)
Like any Anonymous first-year law student, you are a know-it-all.
You appear to be arguing for an "original intent" form of strict constructionism (hey! that's what the drafters meant!!). Or are you arguing for an "original understanding" (Barnett) form? Who the hell knows what you're arguing! After all, you're sitting in your con law class right now, posting blog comments when you really ought to be paying attention to your professor!
/sneering off:
"Freedom of Speech" was a term of art that classically implied two things: (i) a "speech and debate" privilege for legislators, and (ii) a prohibition on prior restraint, without affecting the power to enact sanctions for the utterance itself. The Speech or Debate Clause has obvious implications for (i). There are serious arguments as to what the understanding was at the time of ratification, but all require a far more nuanced analysis than giving "freedom of speech" its [current] popular meaning. My point being, you caricature originalism and strict construction in your 10:59AM post, but fail to realize that both doctrines explicitly require understanding the linguistic usages at the time of enactment, hence the reference to Dr. Johnson's Dictionary. Applied to this discussion, the the core of the Framer's understanding involved political speech, which M-F unquestionably restricts.
In all seriousness (and without denigration), I think it is an extraordinarily widespread problem: the education system and pop-culture provide something less than even a Cliff's Notes on our system of government. Individuals thus enter discussions ill-equipped to participate. To give extreme examples, how many times have you heard that "we live in a democracy" or "voting is an absolute right."?
Broadly applied to this discussion, I think that both original intent and original understanding would yield equivalent results. And you shouldn't read too much identification into a handle. See my 12:57pm post for my argument. Don't caricature arguments if you don't even understand what you are caricaturing.
Well, thank you for at least making an argument in your subsequent posts.
As for the reference to Samuel Johnson: do you really think that Johnson's Dictionary is the definitive source as to either original intent or original understanding? What do you make of Govol's comment:
Is "seditious libel" not, by definition, political speech? Or "speech" within the meaning of Johnson's definition?
I disparaged your remarks because they assume that a very complex issue is settled. Geez, I wonder why the Supreme Court didn't just buy 9 copies of Dr. Johnson's Dictionary in 1789, thereby avoiding 200+ years of First Amendment jurisprudence.
I don’t know about “most other issues” but it seems to me that the majority of what Congress actually does is take money from one group of people and spend it on another group of people in order to get the latter to vote to reelect them. Senator McCain has probably one of the best records of anyone in Congress in voting against a lot of this spending (Medicare Part D, ethanol subsidies, earmarks, SCHIPs expansion, the pork-infested Transportation and Energy Bills, etc.) and is someone that I would not only trust with control of our armed forces but would trust to wield the veto pen.
So on foreign policy (75% of the job of the President) and spending (75% of what Congress does), I wouldn’t have any qualms about supporting (as opposed to just voting for) John McCain in the general election.
Not really, since conspiracy, defamation and libel are all state laws and the First Amendment on its face applies only to Congress. Heck, strictly speaking the text of the First Amendment doesn't even apply to the President.
There are only two viable candidates left for the Republican nomination, and one of them, Romney, is fading and may be gone in another week's time. (There are also only two Democrats, but from a conservative viewpoint, they are relatively indistinguishable.)
The relevant issue is who of these four SHOULD be president, whatever their warts may be. Possibly the most conservative is Romney, but can he win the general election. There is some evidence that McCain can win the general election—he polls even, at least, in current "one on one" polling with both Clinton and Obama. On the other hand, Romney is down about ten points as to either. (See the reports of polls on Real Clear Politics.)
What is the better virtue, as to judges and as to other issues (including campaign finance). Work for Romney to be the candidate with the odds being pretty good that either Clinton or Obama be elected or settle for McCain who may well get elected.
Are the judges who might be appointed by Clinton or Obama likely to be any "worse" than judges appointed by McCain? I gather that Rush Limbaugh may refuse to vote Republican if McCain is the nominee (and others who post on various blogs say the same). But is that tantamount to saying that there will be no difference between McCain appointees and Clinton or Obama appointees to various courts? Surely, there is a difference between the Reinhardts and Barketts (let alone the Ginsbergs and Breyers) of the courts and the more liberal half of the Republican appointees of the past few years. And, neither Clinton or Obama are any better on campaign finance than McCain.
I stand corrected! Obviously "articulate utterance" implies "articulate utterance that makes a political argument." I mean, I guess that's what you're saying, isn't it?
Fun to look through Dr. Johnson's Dictionary again. On a completely unrelated note, I stumbled across this one:
There are federal conspiracy laws.
I'm going off memory here (dangerous, I know), but I don't believe Douglas ever was considered a 1A strict constructionist. Black did claim to be one.
The only place he drew the line was on "symbolic" speech -- flag burning, armband wearing, all that kind of stuff. I think he also exempted obscene speech of the name-calling sort. Other than that, he's the closes to an absolutist we've ever seen.
(1) Before denigrating first year law students, may I suggest that you compare the term "e.g." with the term "definitive." Dr. Johnson's is far from definitive, but it's a good introduction to the ballpark. You'll find that it is occasionally used by SCOTUS as such.
(2) M-F is arguably a prior restraint of political speech: It prohibits ex-ante the utterance of certain words, e.g. candidates names, within X-days of an election. [Although I'm open to discussion on this issue - the contours of "prior restraint" as a term of art are beyond my knowledge.]
I've heard this argument, but I was under the impression that it was controversial and not supported by much evidence. I've never seen your view applied in a case before (have you?), and I was taught (perhaps incorrectly) that if "freedom of speech" was a term of art in 1791, no one's sure what it included.
But looking through Johnson's Dictionary (and I'm not kidding now, it really is fun -- and thanks to Google Books, a scanned copy of an 1832 revision is online, and searchable), I just don't see any way anyone can find support in it for the various interpretations of the 1st Amendment.
For example, "law:"
As Justice Black used to do (and I'm referring to Kermit Hall's Oxford Companion to the Supreme Court): when counsel was arguing in favor of some kind of law either restraining or punishing speech, Black would pull out his vest pocket copy of the Constitution and ask counsel to read along with him. "Congress shall make no law ..." He'd stop counsel dead at that point. Now that's an absolutist.
I think you'd have more luck arguing about what "abridging" means. Johnson defined it only in the sense of an "abridged version" of a text. I have no idea what the commonly-understood meaning of "abridging" in the context of law-making meant in the late 18th Century, but I'm sure someone's analyzed it. Can it be taken to mean prior restraints only (and not ex post prosecution for speech)?
In the same vein as the Brandeis discussion, calls of this sort are inevitable, since the goal is control (justice being merely a fig leaf), and an equally-applied free speech code cannot accomplish the goal.
Consider 4 Blackstone's Commentaries 151-52
I consider Blackstone to be a significant source for understanding technical usages. If you'll accept a bit of ipse dixit - I don't have time to track down a speech reference - the understanding for freedom of speech was similar.
Black neglected the meaning of "freedom of speech." One of the problems is the lack of judicial interpretation prior to the 20th century. As a policy matter, I'm a huge fan of the expansive definition given by modern courts. As a legal matter, not so much. It's hard to give credence to the politically (vs. interpretive) driven house of cards that many areas of constitutional law are built on.
Apparently the drafters thought "the freedom of speech" was a category different from (or larger than) "freedom of the press."
Fair enough. I would also point out that Blackstone's discussion tended to blend both speech and the press into a single issue of communication. [Read the above quote in context.] More important to an originalist understanding is the Federalist vs. Republican difference in understanding / intent, with Federalists tending toward Blackstone, see, e.g., the Alien and Sedition Act, and Republicans tending toward freedom of speech in the modern sense. Fluffy discussions can be found in Legal Affairs and at the University of Missouri.
I don't see how Blackstone's analysis (if applied to speech rather than press rights) supports the idea that M-F is unconstitutional or the lesser proposition that political speech is especially protected. In particular, all Blackstone's analysis means is that the gov't can't jail someone to prevent them from running an ad or donating money in violation of M-F, but it can jail such a person after they commit the prohibited act. If 1st A speech rights to protect only against prior restraint and not against subsequent criminal prosecutions in the manner that Blackstone suggests, then it's not much of a right at all.
I'm curious: we tend to get obsessive over original intent/original understanding issues when discussing constitutional law. I pointed out the distinction the 1st Amendment makes between "speech" and "the press," but I imagine the explanation is pretty simple: in the late 18th Century, "the press" meant newspapers and pamphlets -- literally, stuff that comes off printing presses. So if you wanted to protect "speech" in the Speaker's Corner sense, well, you had to add "speech" as a separate category. Yes, it still could've been construed as "political speech" only.
But was there such a thing as a "campaign contribution" in the late 18th Century? How were campaigns financed? Was there such a thing as coordination between a political campaign and the "free press?" Did 18th Century campaigns (such as they were) distribute "talking points" to newspapers sympathetic to their positions? Was there even such a thing as a "Committee to Elect John Adams?" If you wanted to help Adams get elected, could you simply pay him cash to help defray his campaign expenses? Wasn't that outlawed as a bribe? (O.K., given that there was nothing resembling direct election of presidents back then, it might be better to use an example of someone running for the House c. 1800, but I don't know the names of any such person off the top of my head.)
I admit that I know nothing about these questions. And if we're going to care about orignial intent/understanding, aren't these questions critical? At least as critical as the "what types of firearms were around c. 1790" question is to 2nd Amendment jurisprudence?
I'm not disagreeing with your analysis. Alias, ColdWarrior, and I hijacked and were off on a bit of tangent.
Speaking for myself:
/End originalism tangent.
No.
People used their own private funds to print up pamphlets, write articles, start a newspaper, offer free liquor to the voters on election day, etc. Churches participated openly in campaigns, with ministers telling their congregations which candidate was favored by God. Public employees understood that they had to vote in favor of those who appointed them (votes were public).
Newspapers were partisan. They ran articles and editorials favorable to one candidate or the other. Many papers were founded for the sole purpose of disseminating political points of view.
Yes. See above.
Informally, yes, though it wasn't called that of course. It was an association of private individuals who favored Adams and took it upon themselves to coordinate efforts on his behalf.
That wouldn't have happened because Adams himself had no such expenses.
For the election of 1800, remember that the Sedition Act prevented criticism of Adams, but that criticism of Jefferson was NOT subject to any prohibition.
Do you have any references to source material handy regarding the nature and financing of elections in the early days of the Republic?
Again, it probably doesn't make a lot of sense to talk about Presidential or Senate campaigns, since those were somewhat insulated by virtue of indirect election. But House campaigns weren't.
On another point: I, too, am very skeptical of campaign finance laws. Not because I think they're unconstitutional, but because I think they're ineffective because they must remain constitutional. What would I like to see? Anonymous contributions only. To me, everything else comes awfully close to a bribe. How would I handle "advocacy groups," in theory separate from political campaigns? I haven't a clue, since clearly the prohibitions on coordinating under M-F- can only be either horribly ineffective or blatantly unconstitutional.
There are federal conspiracy laws.
I had in mind the general law of conspiracy which applies to crimes generally, which would be state law. Of course the feds can also create the crime of conspiring to violate some federal law and the text of the First Amendment, on its face, would apply to that. Interestingly, it would also apply to RICO, which is much like a federalized conspiracy law that can apply even when the underlying unlawful activity is a state (but not federal) crime.
Not per se, no. The information is available in general histories of the time, biographies and histories of the press.
Bruce Ackerman has a detailed proposal for this. See here.
If you keep this unpleasant fact in mind, it's not surprising that some of the same politicians who adopted the First Amendment later decided they weren't so fond of free speech when exercised by their opponents. Surely this isn't the first example of politicians flip-flopping and ignoring their principles, and it certainly isn't the last. Should we re-interpret the meaning of a politician's flip merely because he later flops?
All of which tend to converge on the same result in most cases, since authors attempt to write text which literally expresses their own intent according to then current meanings of words, which text will subsequently be understood to mean the same as the author's intent, if the author wrote in clear language.
Eric, there's another simple reason that the Alien and Sedition acts don't accurately reflect the understanding of the 1st amendment: They were Federalist legislation, and the federalists didn't WANT a Bill of Rights.
I disagree. Here's an entirely fictional example. Let's say three people are in a room drafting constitutional text and they agree to the following: Congress shall make no law abridging the freedom of speech.
Person A (draftsman) thinks that all speech is free speech and that this prohibits prior restraint but not subsequent criminal prosecution for speech. Person A's view is dominant in written scholarly materials from the time, but is a minority view in society.
Person B thinks that all speech is free speech and that this prohibits prior restraint and subsequent prosecution. Person B's view is advanced in many widely read newspapers and pamphlets supporting adoption of the text. Person B is the only person that holds this view.
Person C thinks that free speech doesn't include untrue speech such that gov't may regulate untrue speech in any manner, but for all other speech, prior restraint and criminal prosecution are each prohibited. Person C's view is dominant in society at the time, but the few primary sources documenting the dominance are viewed as partisan and unreliable.
Two hundred years later, a federal law is passed making it a criminal offense to utter an untrue statement about a political candidate. Is the law constitutional under an originalist interpretation?
One answer to your question is to view the original understanding as a spectrum. Due to inherent uncertainties, it's not possible to determine exactly how issues were perceived; it is possible to establish the core range over which they were understood. Where in this range (likely a bell-curve) the outcome lies is a legitimate subject for judicial debate. Judge Bork has noted that originalism requires determination not only of understanding (or intent) with regard to the particular issue, but also the degree of abstraction with which that issue should be viewed. Applied here, a Framing-era Republican might view free speech with a high degree of abstraction, such that it would apply even to a media such as the internet that wouldn't be invented for 200 years. On the other hand, arguing that an amendment intended to prevent racial discrimination guarantees a right to an abortion might raise a significant abstraction problem.
This is unfair to the Founders. It's easy to find quotations of that time which permit subsequent prosecution for speech. It's pretty clear that the dominant view was that of Blackstone (quoted by ALS above), which expressly permitted subsequent prosecution. The Sedition Act fits this view quite well (and was justified on that ground in Congress).
This is not very persuasive. Most Federalists did, in the end, vote for the BoR. They had to, or it would have been impossible to obtain the supermajority required. Since they did vote for them, any originalist has to consider their views in fairly stating the public meaning of the time.
The 1771 Encyclopedia Britannica mentions it in a similar sense for law:
But looking through Johnson's Dictionary (and I'm not kidding now, it really is fun
If you like old dictionaries, you might also enjoy old encyclopedias; the 1771 Britannica is probably on line somewhere. There is 1+ page on "Abridgement, in literature", with comments like: "His [an abridger's] business, therefore, is to retrench superfluities, digressions, quotations, pedantry, &c and to lay before the public what is really useful."
There are also references to "Abridgement, in Arithmatic" and "Abridgement, in Algebra".
What the original poster is trying to say is that you (some people) are citing subsequent actions by these politicians as evidence of what they understood the words in the original law to mean. But, if they didn't support those laws in the first place, it's quite possible that all their actions really show is that they were being unfaithful to the laws.
That having been said, I don't think the original poster's formulation was quite correct, because the Federalists, at least for the most part, didn't oppose the BoR on substantive grounds, but on structural ones. So there's no more reason that the Federalists should have been unfaithful to the BoR than others. (That doesn't mean there's no reason; there was: ultimately, they were politicians.)