The Many Paths to Neutrality

Abstract:     
This essay introduces a volume, First Amendment Stories, which the authors edited and to which a number of distinguished scholars contributed. The authors reflect on the tendency of First Amendment law to abstract away from specifics, and note that free-speech and religious-liberty law and doctrines generally aim for a certain kind of “neutrality”; in the interest of hitting that target, some considerations that are salient to ordinary common sense are deemed not to count. But, how is this neutrality possible? How does it ever happen that people embrace it? What specific contexts lead courts to abstract away from both specificity and context, to adopt positions that are neutral toward, say, theological truth and the viewpoint of speech? Is this move – this striving – toward neutrality justified, or justifiable? This question, the authors believe, runs through this volume and its chapters.

It turns out that, like “equality,” neutrality has a conventional meaning, one that, in many ways, can obscure the term’s contested, complicated, and multiple meanings. When it is not used merely to suggest a kind of serene nonjudgmentalism, the invocation of neutrality in conversations about law and politics is typically a shorthand gesture toward the generally understood value of removing some issues from political consideration, together with the arguments in favor of this removal. Such linguistic conventions are useful. The vague term “neutrality” may either introduce substantive argument or serve as a meaningful slogan in the many contexts in which it is difficult to develop arguments in a careful, systematic way. “Neutrality,” though, is a fluid term, as this volume’s several stories illustrate. It must take its shape from its container, the specific arguments in favor of withdrawing this or that substantive issue from politics.

Number of Pages in PDF File: 17

Keywords: First Amendment, freedom of speech, freedom of religion, free exercise, establishment of religion, Constitutional Law, the Supreme Court, neutrality

JEL Classification: K49, K39, K19, K10

Accepted Paper Series