Constitutional Commentary

Faculty-edited law journal provides articles, review essays and book reviews on constitutional law and history.

Articles from Vol. 27, No. 2, Fall

A Thinker-Based Approach to Freedom of Speech
INTRODUCTION Many contemporary autonomy theories of freedom of speech champion the perspective and freedom of just one side of the communicative relation--usually, the speaker or the listener(s). Such approaches seem to neglect or subordinate the...
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Autonomy and Free Speech
The legitimacy of the legal order depends, in part, on it respecting the autonomy that it must attribute to the people whom it asks to obey its laws. Despite the plethora of values served by speech, the need for this respect, I claim, provides the...
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Comment on Baker's Autonomy and Free Speech
In approaching this comment I am conflicted in two ways. First, I have always been a great admirer of Ed Baker and his work, but I will be focusing mostly on those points on which we disagreed. Second, my relation to the autonomy theories of freedom...
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Comment on Shiffrin's Thinker-Based Approach to Freedom of Speech
A constitutionally protected right of freedom of speech is a limit on government policies that is deemed necessary to protect certain important values. Even among those who believe in freedom of speech, and believe that any defensible constitution...
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Court-Packing and the Child Labor Amendment
No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen states which contain only five percent of the voting...
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Freedom of Speech and Two Types of Autonomy
For several decades, I have maintained that social reality is too complex to hope or expect that First Amendment theory could be reduced to a single value or a small set of values. (1) Nonetheless, extraordinarily fruitful scholarship can be produced...
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Free Speech and Autonomy: Thinkers, Storytellers, and a Systemic Approach to Speech
Ed's and Seana's papers together present a powerful argument for the idea that autonomy is a fundamental value underlying the protection of free speech. As I have written elsewhere, I agree with this argument. (1) In this response to their papers,...
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Free Speech and Political Legitimacy: A Response to Ed Baker
Normative discussion too often suffers from lack of agreement on criteria by which to judge the merits of the various contending theories. Bereft of such common ground normative debate often has the deep subjectivity--and hence the productivity--of...
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Reply to Critics
I am grateful for the thoughtful and challenging responses of the group members and pleased to have the opportunity to elaborate upon the thinker-based approach in reply. I wish Ed Baker were still here to continue the conversation alongside. Unfortunately,...
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Seana Shiffrin's Thinker-Based Freedom of Speech: A Response
As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history...
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Seana Shiffrin's Thinker-Based Theory of Free Speech: Elegant and Insightful, but Will It Work in Practice?
INTRODUCTION Seana Shiffrin offers a persuasive account of how free speech is essential to the realization of several profound interests that we have as thinkers. This approach avoids the usual sharp separation of speaker and listener interests,...
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Speech Restrictions That Don't Much Affect the Autonomy of Speakers
I. SPEECH RESTRICTIONS WITH LITTLE IMPACT ON SPEAKERS The sad occasion of Ed Baker's untimely death is perhaps a fitting reason to reflect on the speech of those who are no longer living. Most of what is worth reading was written by authors who...
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There Is No First Amendment Overbreadth (but There Are Vague First Amendment Doctrines); Prior Restraints Aren't "Prior"; and "As Applied" Challenges Seek Judicial Statutory Amendments
In this short article I hope to clarify three doctrines that have produced enormous confusion among lawyers, judges, and academic commentators. These are the doctrines of First Amendment overbreadth, prior restraint, and as-applied (as opposed to facial)...
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