St. George Tucker (1752-1827) was a Bermuda-born Virginian who attended the College of William and Mary, studied law under George Wythe, gained financial independence, fought in the Revolutionary War, and served as a law professor at William and Mary. He then served both as a judge in Virginia’s trial and appellate courts from 1788 to 1811 and as a U.S. district judge from 1813 until 1825.
As a judge, he articulated his belief, later articulated by Chief Justice John Marshall in Marbury v. Madison (1803), that judges had the right to declare laws to be unconstitutional. He is best known for authoring a five-volume edition of William Blackstone’s legal commentaries that attempted to adapt the principles of that work to the laws of the U.S. federal government and the commonwealth of Virginia.
Tucker wrote some of earliest legal commentary on Bill of Rights
Tucker’s lecture notes, which date from 1791-92, are among the earliest legal commentary on the provisions of the Bill of Rights, including the First Amendment. In discussing the Ninth and 10th Amendments, Tucker observed that Americans had strongly insisted on the need for a bill of rights and that this bill was important both “as giving law to the government to be established, & secondly, as giving information to the people” (Hardy 2008, 282).
Tucker’s view that the Second Amendment was designed to protect the personal right of self-defense was recently acknowledged by the U.S. Supreme Court in District of Columbia v. Heller (2008), but his views of the First Amendment are just as consequential.
Tucker opposed blending ‘civil and religion institutions’
In discussing the religion clauses in his lectures, Tucker tied them to the declaration in the Virginia Bill of Rights and noted that governments could not convince through torture or punishment. In an analogy similar to Thomas Jefferson’s image of a wall of separation between church and state, Tucker opposed the blending of “civil and religion institutions” by observing that the necessity “to separate them by mounds which can never be overleap’d,” was “the only means by which the peace of mankind, and the genuine fruits of charity & fraternal love can be preserved” (Hardy 2008, 275).
In his notes, Tucker tied First Amendment freedoms of speech and press to “liberty of thought,” further indicating that they were natural rights, which “are the immediate gift of the Creator, and are equally entitled to exemption from coercion by any earthly power” (Hardy 2008, 276). He opposed restrictions on such rights even during times of war, believing that such laws “are rather traps than fetters.” He further argued that America had extended greater rights than had England and considered charges that such freedoms had distorted “liberty” into “licentiousness” as “a calumny” (Hardy 2008, 277). He accepted the right of individuals to pursue cases against libels in state courts.
In dealing with the rights of assembly and petition, Tucker observed that the rights included that of instructing legislative representatives.
Tucker’s thought press freedom protected against government interference
In discussing freedom of the press in his Commentaries, Tucker connected this First Amendment freedom to freedoms guaranteed in state bills of rights. Whereas such freedom stemmed in England from unwritten law that only provided for freedom from prior restraint, American freedoms were wider and were more securely protected by explicit guarantees against any federal interference with the press.
Reflecting his Jeffersonian attachment to states’ rights, Tucker observed that, in ratifying the U.S. Constitution, Virginia had specifically indicated that “the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”
Tucker further expressed his opposition to the Sedition Act of 1798, which he considered to be beyond the authority of Congress to enact. Connecting such suppression to the notorious Star Chamber Courts of England, Tucker observed that individuals had sought asylum in the U.S. to escape persecution. He further noted “That nothing could more clearly evince the inestimable value that the American people have set upon the liberty of the press, than their uniting it in the same sentence, and even in the same member of a sentence, with the rights of conscience, and the freedom of speech.”
Tucker lauded a free press conducted with ‘decorum’
Whereas English law accepted parliamentary sovereignty as a way to protect against abuses of the monarch, U.S. law was equally concerned about protecting against legislative abuses. Tucker observed that in America “The legislature, no less than the executive, is under limitations of power.” He further commented that “This security of freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great-Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequently penalty of laws.”
Tucker favorably cited the Virginia and Kentucky Resolutions for opposing the Sedition Act, again stressing the power of state laws to provide for remedies against libel and slander. He observed that “A free press, conducted with ability, firmness, decorum, and impartiality, may be regarded as the chaste nurse of genuine liberty; but a press stained with falsehood, imposture, detraction, and personal slander, resembles a contaminated prostitute, whose touch is pollution, and whose offspring bears the foul marks of the parent’s ignominy.”
Tucker fashioned freedoms into expansive ‘rights’
In an appendix to his commentaries, Tucker observed that what he called the “right of personal opinion,” consists “first [of], liberty of conscience in all matters relative to religion; and, secondly, liberty of speech and of discussion in all speculative matters, whether religious, philosophical, or political” (Beneke 2004, 154). Professor Chris Beneke notes that, in so doing, Tucker “refashioned both speech and press freedom and liberty of conscience into expansive rights” that included not simply the right to believe but also the right of disbelief (2024, 154).
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.