First Amendment Imperialism (A Response to Michael Walzer's Leary Lecture)
Daniel J.H. Greenwood
Hofstra University College of Law
Utah Law Review, Vol. 1999, pp. 659-672, 1999
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.
Number of Pages in PDF File: 21
Keywords: free speech, Lochner, economic regulation
JEL Classification: H11, K40, L50, P11, P16
Date posted: January 1, 2003