Political Conduct and the First Amendment
55 Pages Posted: 24 Jul 2021 Last revised: 3 Aug 2021
Date Written: July 21, 2021
The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Sadly, a singular preoccupation with speech in First Amendment jurisprudence has culminated in a construction of the amendment that operates to the detriment of democracy. Attached to a thin, discursive conception of self-governance that emphasizes political discussion over political participation, the Court fails to shield conduct that is vital to political accountability, responsiveness, and change—even when explicitly protected. But contemporary First Amendment doctrine does more to undermine democracy. It also undermines the capacity of legislatures to serve their most basic constitutional function—reaching provisional decisions on contested values. None of this is necessary. Properly construed and consistent with its classic liberal commitments, the First Amendment can do better to promote self-governance and to protect the democratic process. This Article explains how a more nuanced account of the First Amendment’s relationship to self-governance can get us there. The three main pillars of the new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.
Keywords: constitutional law, First Amendment, self-governance, politics, SCOTUS, Supreme Court of the United States
Suggested Citation: Suggested Citation