The Once and Future First Amendment, by 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 a judge?s attempt to interpret constitutional text be firmly anchored in the bedrock principles underlying a fixed constitution? Our difficulty

is not only with the meaning of words; it is also with the

more subtle problem of how we should approach interpretation. To paraphrase John Ciardi: How does our Constitution mean?5 My particular focus will be on the relationship between the First and Fifth Amendments in the hope that history may show what future we need to re-invent.

See full article for more. (This is from the Cato Supreme Court Review 2007-2008).

LOADING PDF: If there are any problems, click here to download the file.

Written by:


Cato Institute on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.