Teaching Free Speech from an Incomplete Fossil Record

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution.

Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution of a nation actually works. Jim thinks that this important issue has been ignored in most constitutional law courses, and I think he is also right. I have devoted almost ten years to studying free speech struggles from 1798 to 1868 – how they shaped both our understanding of free speech and how they shaped section one of the Fourteenth Amendment as a free speech guarantee.

I see that as a crucial part of the story that often gets left out. It is easy to dismiss my view as self-serving because, of course, it is.