19 Ohio N.U. L. Rev. 885 (1992-1993)
The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers

handle is hein.journals/onulr19 and id is 897 raw text is: The First Amendment and National Security:
The Court Responds to Governmental Harassment of
Alleged Communist Sympathizers
ALAN I. BIcEL*
I. INTRODUCTION
The First Amendment of the United States Constitution in per-
tinent part states that Congress shall make no law            ... abridging
the freedom of speech . . . .I What did the First Congress intend
when these words were adopted,2 and is it necessary for each gener-
ation to be bound by the views of its authors?3 How is the language
* B.A. 1976, Brooklyn College; M.A. 1978, and Ph.D. 1984, The New School for
Social Research. Professor of Political Science, University of Wisconsin-La Crosse.
1. U.S. CONST. amend. I.
2. For an examination of the debates of the House of Representatives (the Senate met
in secret) in the First Congress on the First Amendment, see CREATING THE BILL OF RIGHTS:
THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS (Helen E. Veit et al. eds.,
1991). Leonard Levy has pointed out that the paucity of written evidence from the First
Congress and the state ratifying conventions makes it impossible to conclusively state what the
Framers intended. See LEONARD LEVY, EMERGENCE OF A FREE PRESS 266, 268 (1985).
3. The ongoing debate as to whether the original intention of the authors is decipherable
and binding on future generations has generated a considerable body of literature. For the
views of two modern scholars who affirmatively support following original intention, see RAOUL
BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987); ROBERT H. BORK, THE TEMPTING OF
AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1989). For an examination of arguments
claiming that original intention can at best be sketchily constructed and has little applicability
to modern circumstances unforeseen by the founders, see generally JOHN AGRESTO, THE SUPREME
COURT AND CONSTITUTIONAL DEMOCRACY (1984); HADLEY ARKES, BEYOND THE CONSTITUTION
(1990); SoTrios A. BARBER, ON WHAT THE CONSTITUTION MEANS (1986); PHILIP BoBBrrI,
CONSTrruTIONAL FATE: THEORY OF THE CONSTITUTION (1982); STEPHEN C. HALPERN & CHARLES
M. LAMB, SUPREME COURT ACTIVISM AND RESTRAINT (1982); LEONARD W. LEVY, ORIGINAL
INTENT AND THE FRAMERS' CONSTITUTION (1988); GARY L. McDOWELL, CURBING THE COURTS:
THE CONSTITUTION AND THE LIMITS OF JUDICIAL POWER (1988); MICHAEL J. PERRY, THE
CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEoTMACY OF
CONSTITUTIONAL POLICY MAKING BY THE JUDICIARY (1982); LAURENCE H. TRIBE & MICHAEL C.
DoR, ON READING THE CONSTITUTION (1991); HARRY H. WELLINGTON, INTERPRETING THE
CONSTITUTION: THE SUPREME COURT AND THE PROCESS OF ADJUDICATION (1990); CHRISTOPHER
WOLFE, JUDICIAL ACTIVISM: BULWARK OF FREEDOM OR PRECARIOUS SECURITY? (1990); Dean
Alfange, Jr., On Judicial Policymaking and Constitutional Change: Another Look at the
Original Intent Theory of Constitutional Interpretation, 5 HASTINGS CONST. L.Q. 603 (1978);
Raoul Berger, Original Intention in Historical Perspective, 54 GEo. WASH. L. REv. 296
(1986); Robert H. Bork, Original Intent and the Constitution, 7 HUMAN. 22 (1986); Paul Brest,
The Misconceived Quest for the Original Understanding, 60 B.U. L. REv. 204 (1980); Charles
D. Cole, Constitutional Interpretation: A Bicentennial Reflection, 18 CUMB. L. REV. 1 (1987-
88); Louis Fisher, Methods of Constitutional Interpretation: The Limits of Original Intent, 18
Ctmum. L. REv. 43 (1987-88); Charles A. Lofgren, The Original Understanding of Original
Intent, 18 CUMB. L. REV. CONST. COMMENTARY 77 (1988); Charles McC. Mathias, Jr., Ordered
Liberty: The Original Intent of the Constitution, 47 MD. L. REV. 174 (1987), and Robert A.

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