Ephraim Unell has posted The First Word Revisited on SSRN. Here is the abstract:
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This short piece reexamines the original meaning of the first word of the First Amendment: “Congress.” Does “Congress,” in the Amendment, refer to the federal legislature alone – or does it function as a synecdoche and convey a broader meaning there, encompassing one or both of the other branches of the federal government?
That the Constitution in Article I defines “Congress” does not mean it has the same meaning throughout. The literature examining the contextual meaning of “Congress” there is scant. Only two sources directly consider the meaning of “Congress” in the Amendment and its implications for the scope and content of the rights there.
My purpose here is to update and expand on those sources. My discussion here reviews and updates the evidence of the (original public) meaning of “Congress” in the First Amendment.
Though the evidence is inconclusive, on balance it tilts to the second possibility. I will show that “Congress” in the First Amendment is best understood as a synecdoche that includes the Executive branch as well.
This very interesting paper is recommended.
This issue is fascinating, but my own take is quite different than Unell's. So far as I can tell there is no direct evidence that "Congress" was used as a synecdoche–Unell adduces no such evidence. There is substantial evidence that various First Amendment rights were understood to apply more broadly, but that evidence is consistent with a much more plausible hypothesis–that the Ninth Amendment reflected the understanding that the enumerated rights in Article One and the first eight Amendments confirmed preexisting rights and limits on federal powers. Of course, there is the familiar difficulty with determining the content of such rights, but the extension of "freedom of speech" and other First Amendment rights to actions by the executive and judicial branches would appear to be an easy case. Unell deals with a version of this theory briefly in a footnote, but does not discuss its implications for the synecdoche theory.
The theory itself seems implausible. Assuming that the drafting of the First Amendment was done with an awareness of the possibility that it would be subject to interpretation and construction by judges and other officials, the use of synecdoche (or other literary devices) would surely have been avoided (if possible). Synecdoche is an invitation to confusion and misinterpretation.
Perhaps Unell's thesis is that the use of "Congress" is a legal synecdoche–that is, that the word "Congress" had its conventional semantic meaning but that the legal effect of the amendment applies more broadly. This could be made explicit by invoking the interpretation-constructin distinction. This argument is more plausible than the argument that the argument that Unell makes.