The Death and Rebirth of the Clear and Present Danger Test
TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR PROFESSOR MORTON J. HORWITZ, pp. 211-45, Alfred Brophy & Daniel Hamilton, eds., Harvard University Press, 2008
35 Pages Posted: 26 Feb 2007 Last revised: 23 May 2012
Date Written: October 1, 2007
In a recent paper, "The Origin the Compelling State Interest Test and Strict Scrutiny," I argued that strict scrutiny did not originate in the Equal Protection Clause. Rather, it originated in the First Amendment in the late 1950s and early 1960s and it migrated from there to equal protection litigation in the late 1960s.
In this paper, I argue that once it is appreciated that strict scrutiny originated as a First Amendment doctrine, we can - by taking a closer look at First Amendment history - come to appreciate strict scrutiny as the clear and danger test reborn and transformed. It was in the cases establishing strict scrutiny in the First Amendment that the Supreme Court dismantled McCarthyism, ended the reign of deferential civil liberties jurisprudence, and revived the danger test in a new and different guise. The "real" Warren Court dates from these opinions.
When strict scrutiny was first enunciated in the mid-1960s in First Amendment litigation, commentators initially noted its roots in the pre-McCarthy era clear-and-present-danger precedents. By forgetting that connection, modern scholarship has missed an opportunity for a more nuanced understanding of strict scrutiny's history, jurisprudence, and role in American constitutional law, which this article explores.
Keywords: clear and present danger, first amendment, legal history, constitutional history, free speech, strict scrutiny, jurisprudence, balancing, judicial deference, Warren Court, Felix Frankfurter, William Brennan, compelling state interest
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