Cato Supreme Court Review: 2007-2008

By Robert A. Levy; Ilya Shapiro et al. | Go to book overview

The Once and Future First Amendment

Janice Rogers Brown*

I am delighted to present the Cato Institute's sixth annual B. Kenneth Simon Lecture in Constitutional Thought, appropriately named after such a generous supporter of individual liberty and constitutionalism. It is an honor to be asked to follow in the formidable wake of such luminaries as Judges Douglas Ginsburg and Danny Boggs, and Professors Walter Dellinger, Richard Epstein, and Nadine Strossen.

While I am certainly not in their league as a scholar, I want to take up a thread that I think has been part of the continuing dialogue promoted by this lecture series. Judge Ginsburg called on students of the Constitution to refocus attention upon its text;1 Professors Dellinger2 and Epstein3 both argued, in essence, that economic, personal, and political rights are indivisible. In fact, one of Professor Dellinger's explicit premises was that disparaging the constitutional protection of economic liberties weakens the constitutional foundations of personal liberty.4 I agree, of course. And today I will try to complete a bit more of this tapestry by considering from a different perspective the questions that undergird each of those discussions. Those questions pertain to the constant challenge of constitutionalism: Is the Constitution merely an emanation of “transformative overarching principles” uncontrolled by the text and disconnected from the political philosophy on which the text is based? Or must

*Judge, United States Court of Appeals for the District of Columbia Circuit. This
article is a revised version of the sixth annual B. Kenneth Simon Lecture in Constitu-
tional Thought, delivered at the Cato Institute on September 17, 2007.

1 Douglas H. Ginsburg, On Constitutionalism, 2002–2003 Cato Sup. Ct. Rev. 7(2003).

2 Walter Dellinger, The Indivisibility of Economic Rights and Personal Liberty,
2003–2004 Cato Sup. Ct. Rev. 9 (2004).

3 Richard Epstein, The Monopolistic Vices of Progressive Constitutionalism,
2004–2005 Cato Sup. Ct. Rev. 11 (2005).

4 Dellinger, supra note 2.

-9-

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