Compelled Subsidies and Original Meaning

Abstract

The rule against compelled subsidization of speech is at the forefront of modern First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal “contraceptive mandate” have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modern compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very different from our own. And that is especially true when it comes to the First Amendment. In certain contexts, some Founders argued that compelled subsidies violated their rights. But these were contested arguments. The challenge, then, is to situate Founding Era ideas in a historical frame that may bear little resemblance to modern law. Such a frame, this Essay argues, indicates that rights of expression and religious exercise — undergirded by freedoms of thought and conscience — neither entirely excluded nor inviolably privileged arguments against compelled subsidies. Rather than providing determinate answers, the Founding-Era conception of rights encouraged active debate about the boundaries of governmental power. Compelled-subsidy doctrine thus sits in a precarious position — within the bounds of reasonable historical argument but also deeply novel in its modern rigidity and judicial enforceability.

Keywords: free speech, free exercise, natural rights, freedom of speech, compelled subsidies, First Amendment, originalism

JEL Classification: K10