Legal Commentary

Here's a link to my second and final post on the Constitution in 2020 blog in advance of the conference later this week.  This one is more directly related to the individual rights panel, on which Rick and I will both be speaking (and, I think, hitting some of the same themes).  Here are a few snippets:

Justice Oliver Wendell Holmes once famously wrote, ?We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.? The difficulty of this advice should not be underestimated ? especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have ?a deeply felt desire . . . to achieve noninstrumental certainty in the law.? And Fred Schauer has written of the lawyer?s tendency to think in terms of ?juridical categories? rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers? greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. ?Equality,? ?neutrality,? ?content-neutrality,? and many more buzzwords are touted as the path to an analytically pure First Amendment. . . .

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up ? from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes?s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them. . . . .

Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.