First Amendment Imperialism (A Response to Michael Walzer's Leary Lecture)

Abstract:     
The First Amendment threatens to swallow up all politics, replacing democratic decision-making based on claims that policies are in the public interest with judicial analysis of the nature of free speech and the distinction between speech and action.

In the manner of classic social contract theory, First Amendment law asserts the separation of the state from the most salient issues of democratic debate. Increasingly, however, it acts as a bar to governmental action not just with regard to the issues of conscience and religious practice with which it began, but far into the realm of economic regulation we thought the courts had abandoned to the legislatures after the Lochner disaster.

Keywords: free speech, Lochner, economic regulation

JEL Classifications: H11, K40, L50, P11, P16

Accepted Paper Series