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Constitutions are designed to control, or at least influence, future events – political events, adjudicative events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?

That is a question that ought to loom large in the deliberations of persons who propose and ratify new constitutions and new constitutional amendments. It is also a question that should form part of the backdrop against which particular constitutional provisions are interpreted. Here I plan to address just one small part of that inquiry: what perspective on the future should guide courts in interpreting the speech, press, and assembly clauses of the first amendment to the United States Constitution?

My thesis is that in adjudicating first amendment disputes and fashioning first amendment doctrines, courts ought to adopt what might be termed the pathological perspective. That is, the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The first amendment, in other words, should be targeted for the worst of times.

I would not make that claim about all provisions of the federal Constitution. Certain clauses – the equal protection and cruel and unusual punishment clauses, for example – may be designed, or at least most wisely interpreted, to serve the society primarily in periods of unusual idealism or cohesion. Provisions of that sort may be more significant for their capacity to stimulate, channel, or institutionalize progressive social change than for any role they may play in preserving traditional arrangements. But the speech, press, and assembly clauses of the first amendment, as well as some other provisions of the Constitution – the religion clauses and the dormant commerce clause come to mind – are best viewed as having primarily a preservative function. It is accordingly the pathological perspective that ought to inform the way those clauses are interpreted.


Constitutional Law | First Amendment | Law