
Contents
-
-
-
-
I Introduction: The Interrelationship of Text and Fundamental Human Rights Reconsidered I Introduction: The Interrelationship of Text and Fundamental Human Rights Reconsidered
-
II Common Law Constitutionalism and the (Limited) Role of Constitutional Text II Common Law Constitutionalism and the (Limited) Role of Constitutional Text
-
III The Cosmic Turtle Revisited: Judges—Not Text—All the Way Down? III The Cosmic Turtle Revisited: Judges—Not Text—All the Way Down?
-
IV Text, Judges, and Expressive Freedoms—Setting the Stage for a Comparative Legal Adventure IV Text, Judges, and Expressive Freedoms—Setting the Stage for a Comparative Legal Adventure
-
V Conclusion: Text Meets Courts V Conclusion: Text Meets Courts
-
-
-
-
-
-
-
-
-
1 Introduction: The Importance of Text to Securing Rights in a Written Constitution (with Particular Attention to Expressive Freedom)
Get access-
Published:May 2024
Cite
Abstract
In the contemporary United States, the federal judiciary, notably including the conservative majority on the Supreme Court, embraces “textualist originalism” as the primary interpretative methodology in constitutional adjudication. Coupled with a commitment to the “original public meaning” of the Constitution, Bill of Rights, and Civil War Amendments, in theory this approach constrains judicial discretion by limiting the power of judges to interpret independently constitutional text. In the context of the First Amendment, however, this commitment to textualist originalism gets largely, arguably completely, disregarded in favor of a dynamic, purposive, “living tree” approach that reads all four of the First Amendment’s speech-related clauses as creating a general rule against government censorship of speech that has any arguable connection to the marketplace of political ideas. The actual words of the First Amendment, and the four independent clauses, more or less go out the window. This demonstrates, with convincing clarity, the limited relevance of constitutional text to the protection of expressive freedom. Rather than hewing closely and carefully to the text and original public meaning, judges in the United States use a common law process to develop and refine free speech principles over time and on an interstitial basis. This ongoing process of common law constitutionalism—not the text—serves as the primary means through which the Article III courts define and protect expressive freedom.
Sign in
Personal account
- Sign in with email/username & password
- Get email alerts
- Save searches
- Purchase content
- Activate your purchase/trial code
- Add your ORCID iD
Purchase
Our books are available by subscription or purchase to libraries and institutions.
Purchasing informationMonth: | Total Views: |
---|---|
June 2024 | 9 |
July 2024 | 6 |
August 2024 | 10 |
September 2024 | 2 |
October 2024 | 11 |
November 2024 | 2 |
December 2024 | 8 |
January 2025 | 5 |
March 2025 | 5 |
April 2025 | 4 |
Get help with access
Institutional access
Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:
IP based access
Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.
Sign in through your institution
Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.
If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.
Sign in with a library card
Enter your library card number to sign in. If you cannot sign in, please contact your librarian.
Society Members
Society member access to a journal is achieved in one of the following ways:
Sign in through society site
Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:
If you do not have a society account or have forgotten your username or password, please contact your society.
Sign in using a personal account
Some societies use Oxford Academic personal accounts to provide access to their members. See below.
Personal account
A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.
Some societies use Oxford Academic personal accounts to provide access to their members.
Viewing your signed in accounts
Click the account icon in the top right to:
Signed in but can't access content
Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.
Institutional account management
For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.