Constitutions of Hope and Fear
52 Pages Posted: 6 Nov 2014 Last revised: 13 Nov 2014
Date Written: November 5, 2014
This review essay for the Yale Law Journal of Robert Post’s Citizens Divided: Campaign Finance Reform and the Constitution contrasts Post’s hopeful and optimistic vision of discursive democracy, and its accompanying hopeful and optimistic visions of the Constitution and the First Amendment, with the more fearful and risk-averse visions well-captured by Winston Churchill’s famous observation that “democracy is the worst form of Government except all those other forms that have been tried from time to time.” Although Post’s vision is attractive in a more hopeful or even utopian way, the more pessimistic vision of democracy, of constitutionalism, and of freedom of speech, arguably exemplified in the title of John Hart Ely’s Democracy and Distrust, is distrustful of government, distrustful of legislative power, distrustful of courts, and even distrustful of public discourse. And although this essay does not seek to determine as a matter of ideal theory which vision is superior, it does suggest that, pace Post, the vision of fear and distrust may fit better with existing American constitutional doctrine and traditions. Along the way, the essay also endorses substantial campaign finance regulation but questions, against Post and many others, whether drawing a line between the speech of corporations and the speech of natural persons is consistent with either free speech doctrine or the soundest underlying justifications for a free speech principle.
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