Bench Memos

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Doctrines and the Constitution


In his NRO article yesterday on Fred Phelps’s funeral protests, Eugene Volokh provides an expert’s primer on the relevant First Amendment doctrines of the Supreme Court where picketing is concerned.

I don’t mean to make a simplistic observation (much less a simpleton’s observation), but it is difficult to say with any confidence that any of the doctrinal minutiae Eugene discusses are logical corollaries, strict or otherwise, of these words in the Constitution: “Congress shall make no law . . . abridging the freedom of speech.”

What Eugene describes are some more or less successful efforts to make principled policy choices about where to draw the boundary between the freedom to communicate and the government’s authority over conduct. But legislatures attempt to draw that boundary all the time themselves, and I haven’t yet heard a compelling reason to suppose that the Supreme Court’s doctrines are better, or constitutionally more worthy of respect even when they are better, than what the Congress, or the legislatures of Wisconsin and Minnesota, have to say on the matter.

This is another way of saying that the most pressing question in constitutional law today is the question of the scope of judicial review itself. Until that question is adequately answered, everything else is a debate about the best way to make Scotch without the subject of barley coming up.


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