The Law According to Levy

In 1957 the Fund for the Republic asked a young historian to write a brief memorandum on the original understanding of the First Amendment. Leonard Levy, who was teaching at Brandeis University, examined the sources and concluded that, at the time the amendment was framed, American courts recognized the crime of "seditious libel"--criticism of the government that could be punished as a crime even if true. "Freedom of speech," he wrote, then meant only the freedom from "prior restraint" on what could be said; speakers could be readily punished after the fact.

Robert M. Hutchins, who was head of the Fund, told Levy that his conclusions would provide encouragement to McCarthyites seeking to suppress "subversive" speech. The pamphlet was published--but without the seditious-libel findings.

Then as now, Leonard Levy was not one to walk away from a fight. "I decided to strike back giving what I thought would be maximum publicity to the very section that the Fund rejected," he writes in an essay called "Adventures in Scholarship." Eventually, his seditious-libel research grew into a book, Legacy of Suppression: Freedom of Speech and Press in Early American History. In its second edition, titled Emergence of a Free Press, it remains today the major work in the field--and Levy, more than two dozen books and one Pulitzer Prize later, is perhaps the pre-eminent scholar in the narrow field of American constitutional history.

Levy's encounter with Hutchins has become legend in America's faculty lounges; publishing well is unquestionably the best revenge. Now Levy's own account is available in Ranters Run Amok, a volume of essays mostly intended for those who relish game films of long-past academic squabbles. Levy is a kind of Homer of the senior common room. He spins epic tales of the prejudice and contumely with which Jefferson scholars greeted his Jefferson and Civil Liberties: The Darker Side; the vicious war of memos among the members of the 1971 Pulitzer Prize jury in history; and the refusal of Harvard University Press to publish one of his manuscripts, later published by Schocken Books as Treason Against God: A History of the Offense of Blasphemy.

Perhaps it is not surprising that the hero of each story is none other than Levy, a veritable Gulliver constantly beset by yapping academic homunculi. As a scholar, he is concise, eloquent, magisterial, and persuasive. He is also often dogmatic and opinionated, with a long memory for slights and little tolerance for disagreement. Now in the twilight of a career that won him endowed chairs at Brandeis and Claremont, Levy is still settling scores with old professors who crossed him during his doctoral defense a half-century ago.

Levy's stubbornness, though, has served him well, as he has produced scores of books, of which a few--Emergence of a Free Press, for example, and his biography of Lemuel Shaw, The Law of the Commonwealth and Chief Justice Shaw-- are unquestionably classics. Ranters will be enjoyed wherever sherry and biscuits are served. But Levy's scholarly virtues are displayed to better advantage in Origins of the Bill of Rights and The Palladium of Justice. Either volume makes an excellent introduction to its subject, and both offer new insights even to scholars. If they also offer, with repeated thumps of the professorial cane, the world according to Levy, that is no real cause for complaint.

Constitutional history, for better or worse, is primarily the study of words. What did James Madison mean by "the freedom of the press"? What did it mean to the state legislatures to ratify the right to "keep and bear arms"? In that study, few can equal Levy. But for those who believe constitutional history should include more about the societies in which the words were spoken, the very intensity of Levy's gaze at the record is a defect, blinding him to the world beyond the parchment.

Take, for example, the thesis of Legacy of Suppression, softened but not abandoned in Emergence of a Free Press. Levy demonstrates that even the most libertarian Americans of the colonial and early federal periods conceded that the government could punish seditious libel--speech or writings "defaming or condemning or ridiculing the government." American legal and political thinkers in the early days tended to argue in the context of individual cases, and to suggest that a specific utterance by a defendant was not punishable because the offense wasn't a clear violation. In other words, a prudent colonial lawyer might have thought it bad tactics to scream defiance in front of George III's judges; instead, he might have argued that the court should require the prosecution to prove new elements before the crime could be established.

This form of legal argumentation--devoted to winning a case on specific facts--is the very engine of common-law evolution. Libertarian lawyers argue that crimes should be construed more and more narrowly, until they become the legal equivalent of Harvey the rabbit and finally disappear altogether. But to Levy, such tactical argumentation is theoretically bankrupt. Eighteenth-century lawyers conceded that seditious libel existed; therefore, he concluded, they did not believe in free speech.

Critics argue that this analysis judges eighteenth-century political theory by twentieth-century standards. Levy's seditious-libel argument led David Rabban of the University of Texas to dub him "the ahistorical historian"--a low blow, but not a flagrant foul. Levy displays the same taste for anachronism in Origins of the Bill of Rights when he repeatedly dismisses as "flabby" early state constitutional provisions proclaiming that certain rights "ought not" to be infringed. Anyone writing a bill of rights today knows how to word it: Say that government "shall not" do certain things. But in fact we "know" that language as superior only because the First Congress used it in the first 10 amendments. Arguably, "ought" might have done the job as well, but Levy has little patience with this inquiry.

Origins of the Bill of Rights is at its strongest when Levy demonstrates the contingent and even somewhat random genesis of the first 10 amendments to the Constitution. What we now call the Bill of Rights was written after ratification, when it became clear that the people of the original states did not trust the new government designed in secret by the Philadelphia Convention.

In The Federalist, Madison, Alexander Hamilton, and John Jay argued that the demand for a bill of rights reflected a misunderstanding of the new federal government. In fact, Levy notes, the anti-Federalists had it right all along: "In sum, the usually masterful politicians who had dominated the convention had blundered by botching constitutional theory and making a serious political error." The Philadelphia delegates had protected some rights in the text of the Constitution--for example, ensuring trial by jury, banning bills of attainder, and prohibiting religious tests for federal office. That they did not finish the job was most likely due simply to fatigue and confusion. It was a nearly fatal mistake by mortals we sometimes mistakenly think of as gods.

Levy is also admirable when discussing the meaning of the enigmatic Ninth Amendment, which provides that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Levy suggests that the amendment intentionally invited courts and lawmakers to nominate new rights as comparable in importance to the "natural" and "positive" rights explicitly protected elsewhere in the Constitution. The first source of such rights, he argues, would be in the Declaration of Independence and the political thought that produced it. "When Lincoln at Gettysburg described the creation of a new nation 'conceived in liberty and dedicated to the proposition that all men are created equal,' he reminded the nation that it could not achieve freedom without equal rights for all nor could it maintain equality without keeping society free," Levy notes. "Liberty and equality constituted the master principles of the founding, which the Framers perpetuated as constitutional ideas, even if slyly."

Alas, not all of Origins is as sophisticated as the above. Take Levy's discussion of the Second Amendment, which provides that "[a] well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Scholars and judges have agonized over the relation of the first clause to the second. Does it mean, in other words, that the right of access to weapons is limited to state-run military forces? Or does it extend a personal right to own weapons? The dispute over this juxtaposition is a very live topic in both history and law right now, with eminent scholars backing opposing positions.

Levy solves this interpretive dilemma by essentially ignoring it. He adduces evidence, going back to Henry II, that the phrase "keep and bear arms" implied a personal right to own weapons. Thus, he concludes with assurance, "Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right." The problem, of course, is that most earlier usages of the phrase did not include a militia clause; thus they are not evidence of what, if any, limitation is implied by the inclusion of one. Levy's belief in the precise meaning of words may not mislead him as to the answer--gun ownership may indeed properly be a personal right. But it surely seduces him into finding a hard question easy.

All told, Origins is a distinctly uneven work, but it is consistently fascinating and provocative. The same could be said of The Palladium of Justice, an elegant and opinionated history of the institution of the jury from Saxon England to the early days of the American republic. Levy traces the roots of the jury to the royal inquest, instituted by the Norman conquerors after 1066 to enforce central authority. The inquest summoned prominent citizens of each locality and ordered them to investigate crimes against the peace, and maladministration in local government. Over time, this body evolved into the grand jury, which had the power to investigate and charge, and the petit jury, which found facts, awarded possession of land, and determined criminal guilt or innocence.

Levy's research is well presented. But his opinions are, to say the least, intrusive. On the superiority of Anglo-American procedure, he sounds like any gouty old silk holding forth after hours in Pommeroy's Wine Bar. England, he writes, devised "accusatorial" procedures in criminal and civil cases; "on the continent and in the ecclesiastical courts, inquisitorial procedure was triumphant. By no coincidence, the liberties of the subject were to thrive in England and be throttled on the Continent."

This is too simple by half. Plenty of tyranny was perpetrated in England. Levy, however, sees no shades of gray. For example, he insists that "[t]he humanity of the English judge was above all marked by his abhorrence of torture." But he notes that, in common-law courts, a defendant who refused to enter a plea was chained naked to the bare ground and then "pressed" with heavy weights until he "'put himself upon his country' or died." Levy argues this wasn't torture because "peine forte et dure was never imposed except to force one to consent to being tried by a jury"--no doubt a tremendous consolation to those who suffered it.

Levy reports, but does not assess as significant, the role of the jury in enforcing the tyranny of the majority--as, for example, in the mass executions in New York after rumors swept the city in 1741 that blacks were planning to burn the city, or in the trials of Jeffersonian Republicans after passage of the Sedition Act. Much more in keeping with his story are the inspiring accounts of juries declining to convict nonconformists of religious offenses, or acquitting John Peter Zenger of seditious libel.

He also makes too little of the distinction between civil juries and those in criminal cases. Today, the United States is the only Anglophone country to retain a broad role for the civil jury. Criminal prosecutions and suits for damages entail different penalties and different ideas of fairness; it would have been valuable to read more discussion of their divergence from a common medieval ancestor.

It is easy to be too hard on Levy. For one thing, he writes so clearly that one can fully follow his reasoning, making possible errors easy to perceive. For another, he has been the authority so long that he no longer feels impelled to provide a great deal of scholarly apparatus. This gives his work a tone of assurance that can be reassuring or irritating, depending on the context.

Levy has thought harder and written more about the questions he addresses in Origins and Palladium than anyone else alive, and his reasoning and conclusions are always important. For those who would understand and extend the mixture of freedom and suppression that is our legacy, his work is not the last word; but it is a good place to begin. ¤

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