The Egalitarian First Amendment: Its History and a Critique on the Grounds of Text, Rights, Negative Liberty, and Our Republican Constitutional Structure

Abstract:     
This article articulates the growing tendency of constitutional theorists and U.S. Supreme Court justices to construe the First Amendment in the light of egalitarian principles and argues that to do so is inconsistent with the meaning and purpose of the First Amendment. The article criticizes the egalitarian approach as creating a positive right, contrary to the structure of the Bill of Rights as a “charter of negative liberties,” and as diluting the right to speech by infusing in it a relative determination of speech values. Finally, the article concludes that the egalitarian reading should be rejected as endangering the very liberties the First Amendment creates.

Number of Pages in PDF File: 32

Keywords: First Amendment, interpretation, negative, negative liberty, charter, Bill of Rights, egalitarian, positive, positive liberty, history, text, right, Stephen Breyer, Active Liberty, Cass Sunstein, democracy promotion, Buckley, Abrams, Debs, antitrust, monopoly, marketplace, originalism

JEL Classification: K19, K39

Accepted Paper Series