Dispatches from the Creation Wars

Volokh on First Amendment History

Eugene Volokh, a UCLA law professor who blogs, has an excellent article in the National Review Online. He correctly points out that constitutional law is a good deal more complex than we often hear from conservatives throwing out such noble-sounding but mostly meaningless catchphrases as “original intent” and “strict construction”. Speaking of the free speech clause of the first amendment, Volokh writes,

This also shows the error of faulting liberal judges for “making up the law” in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can’t just rely on the text. They can’t just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn’t even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.) One can criticize judges for just making up constitutional guarantees that aren’t mentioned in the Constitution at all. But here the Constitution does say something but something very general. If it’s to be enforced at all, judges have to give it specific meaning. And that’s been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.

Nice to see a rational viewpoint on conservative judicial philosophy being given space in a conservative magazine. I’ll probably put up a short essay on the issue of campaign finance reform at some point. It’s one of the areas on which I disagree with the party I typically vote for, the Libertarian Party.

Follow Up: Volokh has two follow ups on his blog, responding to reactions to his NRO article, located here and here. Overall, an excellent discussion on the evolution of the first amendment and the limits on free speech by both individuals and corporations.