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The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment by elected officials, interest groups, and bureaucrats. These opinions limit the power of government to implement distributional judgments in key areas of policy and, by thus tying the government’s hands, constrain opportunities for entrenchment. This antidistributive deployment of market-protecting policy is the signature of neoliberal jurisprudence.

But this jurisprudence has deep problems in an order of capitalist democracy such as ours. Whenever the state cannot implement distributional judgments, markets will do so instead. Market distributions are, empirically speaking, highly unequal, and these inequalities produce their own kind of entrenchment – class entrenchment for the wealthy. A jurisprudence that aims at government neutrality by tying the distributional hands of the state cannot achieve neutrality but instead implicitly sides with market inequality over distinctively democratic forms of equality. Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.


Constitutional Law | First Amendment | Law | Law and Politics | Supreme Court of the United States


This article originally appeared in 118 Colum. L. Rev. 2161 (2021). Reprinted by permission.