Journal article
How the Liberal First Amendment Under Protects Democracy
Minnesota law review, Vol.107, p529
2022
Abstract
This Article challenges the prevailing construction by advancing a theoretical account of the First Amendment that stresses its role as the underwriter of a republican form of government. It argues that, consistent with its classic liberal commitments, the First Amendment can be construed to protect the democratic process and to promote democratic self-governance. But it requires three critical pivots derived from a more nuanced account of the processes and purposes of self-governance. First, the Court must shed its singular preoccupation with speech. The First Amendment shields all political processes equally. Second, the First Amendment must be construed to foreclose political, social, and cultural entrenchment. The essence of self-governance is the absence of entrenched power. A strong anti-entrenchment norm is well-established in existing free speech doctrine in the prohibition on viewpoint discrimination." This strong anti-entrenchment norm must be extended beyond the marketplace of ideas. The First Amendment precludes uses of state power to make it difficult or impossible for citizens to resist social, cultural, and political power. Third, we must recognize that First Amendment rights-speech rights in particular-must sometimes be limited to protect the legislative prerogative to govern.
Metrics
1 File views/ downloads
1 Record Views
Details
- Title
- How the Liberal First Amendment Under Protects Democracy
- Creators
- Tabatha A Abu El-Haj - Drexel University, Thomas R. Kline School of Law
- Publication Details
- Minnesota law review, Vol.107, p529
- Resource Type
- Journal article
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021899515504721