Moreover, there is no evidence on the other side -- nothing at all -- to suggest that, as an original matter, commercial messages should be treated differently from other types of messages.

By the time the 14th Amendment was ratified in 1868, advertising was “vigorous and thriving.”

Although the Civil War temporarily pushed ads off the front page, advertising's success in selling Civil War Bonds led to even more advertising. Yet no state barred advertising unless the underlying product or service was ille-gal, as was the case during the colonial era.

The Supreme Court did not decide any cases relating to advertising before the Civil War. To the extent that the Supreme Court addressed issues relating to advertising during and immediately after Reconstruction, its decisions were consistent with the view that advertising was no different than other forms of speech.

Only in the 20th century, with the separation of economic and civil rights, did a dichotomy come to be drawn between commercial speech and other forms of communication.

From the 1940s until the mid-1970s advertising was held to have no protection at all. Since 1976 the Court has generally protected speech, and has done so since 1980 under the Central Hudson “balancing test.”

In 1996, the Court suggested that it may be moving in the direction of the original understanding of the First Amendment, and may be willing to give heightened scrutiny to restrictions on the right to advertise.

In 44 Liquormart, Inc. v. Rhode Island, a unanimous Court struck down a Rhode Island prohibition on the advertising of retail prices of alcoholic beverages except at the point of purchase.

In so doing, at least five members of the Court acknowledged the importance of the colonial history of advertising regulation. Justice Stevens's plurality opinion referred to co-lonial America's solicitude for advertising, al-though it did not treat that history as determinative.

Justice Thomas relied on the historical argument set forth above in rejecting the notion that there was any “philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech.”

Justice Scalia said that he shared Justice Thomas's “discomfort with the Central Hudson test,” as well as his “aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them.”

Justice Scalia pronounced the historical material I presented in an amicus curiae brief “consistent with First Amendment protection for commercial speech, but certainly not dis-positive.”

Justice Scalia posed certain questions -- spe-cifically, about the state legislative practice at the time of the Framing and at the time the 14th Amendment was adopted. He also asked about the tradition of the American people with regard to advertising. I have tried to address all of these questions, and more, in my article on this topic in the Yale Journal on Regulation.

Thus, perhaps paradoxically, exploring the 18th-century approach to advertising can help bring clarity to the 21st-century problem we are discussing today -- i.e., what role should the government play in regulating advertising?