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Volume 105

Article

A Democratic Political Economy For the First Amendment

Nelson Tebbe, Jane M.G. Foster Professor of Law, Cornell Law School

15 Mar 2020

Today, the relationship between the First Amendment and distributive justice is fraught. Judges and other constitutional actors have been interpreting freedoms of speech and religion in a manner that unwinds government programs designed to ameliorate disparities of wealth, income, and other primary goods. And the regressive impact of actions grounded in these constitutional freedoms is particularly noticeable against the backdrop of historic levels of economic inequality1See THOMAS PIKETTY, CAPITAL IN THE TWENTY-FIRST CENTURY 15, 23 (2014) (arguing that income inequality has increased since the 1970s so that in 2000–2010 it matched and even exceeded the level in 1910–1920). Paradoxically, these constitutional rights, which are commonly associated with democracy, are working to undermine the material conditions for a cooperative society.

Two particular developments illustrate the problem. One is the diagnosis of “First Amendment Lochnerism.” That trope compares the Supreme Court’s contemporary speech and religion jurisprudence to its decision-making during the Lochner era. The comparison has a critical valence, of course, because Lochner is conventionally regretted. And it has been deployed by some prominent jurists, including Justice Elena Kagan2See Janus v. AFSCME, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting) (warning that the Court had “weaponize[ed]” the First Amendment “in a way that unleashes judges . . . to intervene in economic and regulatory policy”). and Justice Stephen Breyer.3See Nat’l. Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2381–83 (2018) (Breyer, J., dissenting) (recognizing that the Court’s approach “invites courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic regulation” and citing Lochner v. New York, 198 U.S. 45 (1905) ); see also Sorrell v. IMS Health Inc., 564 U.S. 552, 602–03 (2011) (Breyer, J., dissenting) (“At worst, [the majority decision] reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”).

A related development is destabilization of the midcentury settlement.4This has also been referred to as the “New Deal settlement,” the “liberal compromise,” the “civil liberties compromise,” and the “civil liberties settlement.” See, e.g., LAURA WEINRIB, THE TAMING OF FREE SPEECH: AMERICA’S CIVIL LIBERTIES COMPROMISE 9 (2016) (“civil liberties compromise” and “civil liberties settlement”); Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 COLUM. L. REV. 1953, 1967 (2018) (“liberal compromise”); Larry D. Kramer, The Supreme Court 2000 Term: Foreword: We the Court, 115 HARV. L. REV. 5, 14 (2001) (“New Deal settlement”). After the Supreme Court abandoned Lochnerism and ceased invalidating New Deal programs, it established a new arrangement: economic justice would be deconstitutionalized and dejudicialized, while “social” and “political” rights would continue to be enforced using judicial review.5See, e.g., Becerra, 138 S. Ct. at 2381 (Breyer, J., dissenting) (“Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution. Ever since this Court departed from the approach it set forth in Lochner v. New York, ordinary economic and social legislation has been thought to raise little constitutional concern.” (citations omitted) ). The legal source of the settlement is generally thought to be United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See, e.g., Suzanna Sherry, Property Is the New Privacy: The Coming Constitutional Revolution, 128 HARV. L. REV. 1452, 1469 (2015) (“[T]he Carolene Products footnote created bifurcated review.”). While these categories of rights—political, social, and economic—cannot be neatly maintained, practitioners commonly use them in this context. The settlement has served as a defining feature of American constitutionalism in the intervening years.

Now, however, judges have unsettled that bargain by invalidating economic regulation using freedoms of speech and religion, which are paradigmatic examples of rights that fall on the noneconomic side. Lawyers on the left have been caught flat footed because they are accustomed to operating without any articulated political economy at all.6See Jeremy K. Kessler, The Political Economy of “Constitutional Political Economy,94 TEX. L. REV. 1527, 1528–29 (2016) (noting that “constitutional political economy became something of a dead language” after the New Deal) (citing JOSEPH FISHKIN & WILLIAM E. FORBATH, THE ANTI-OLIGARCHY CONSTITUTION (forthcoming 2020) (manuscript at 65–66) ). For many of them, the lesson of Lochner is just that constitutional law is prohibited from embracing judgments on matters of economic justice. They assume that any such judgments must be subordinated to constitutional rights, including freedoms of speech and religion.7For one call to rethink the First Amendment’s economic valence, see Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 COLUM. L. REV. 2161, 2163 (2018). But what if the problem was not that the Lochner Court was operating with a substantive understanding of the relationship between law, politics, and the economy, but just that its understanding was undemocratic?

In this Article, I begin building an interpretation of the First Amendment that promotes the practical conditions for a vital democracy. I argue that considerations of distributive justice do properly affect interpretation of free speech and religious liberty. This is true even assuming that those provisions have priority over ordinary law, including economic regulation. 

The argument is divided into two parts, following this Introduction. Part I outlines a democratic interpretation of the First Amendment that harmonizes rights protection with concern for political, social, and economic belonging. It specifies how distributive justice properly affects jurisprudence in a manner that the conventional prioritization (and judicialization) of individual rights has seemed to foreclose. Speech and religion doctrines are integrated in a coherent account, which is keyed to a conception of democracy.8See NELSON TEBBE, RELIGIOUS FREEDOM IN AN EGALITARIAN AGE 25–36 (2017) (describing the coherence method). In brief, people who are suffering from certain forms of deprivation and disadvantage will find it impossible to exercise their basic rights to participate in the project of cooperative government. Basic liberties are thwarted by insufficiency of primary goods, while membership status may be degraded by structural inequality of economic wherewithal. To illustrate the approach, I evaluate concrete conflicts occurring both inside courts and outside them. For example, a democratic political economy has implications for campaign finance regulation, labor law, regulation of prescription drugs, the requirement of “net neutrality” for internet service providers, and the obligation of employers to provide health insurance coverage for female contraception.9See infra Part I.

Part II uses the approach to understand the current moment in constitutional law. First, it sets up a historical comparison to Lochner that is deliberately presentist and designed to highlight undemocratic conceptions of the relationship between First Amendment law and distributive justice. To that end, I isolate two aspects of Lochnerism, both of which are drawn from the democratic theory outlined in Part I. One aspect is that constitutional actors are using a conception of rights that could be called “anticlassificatory.”10See, e.g., Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 SUP. CT. REV. 233. The term anticlassificatory, which I owe to Genevieve Lakier, does not capture all aspects of the conception of rights that I wish to describe, but it indicates some central features. See infra subpart II.B. Doing so allows them to downplay the effects of power disparities and other social circumstances on the exercise of basic liberties, even though these interpreters often do attend to the values of free speech and how those values are served on the ground (and in this sense they have assimilated the lessons of legal realism). A second aspect is that they deem the existing distribution of primary goods to be neutral and natural, rather than politically constructed, and they use that baseline to identify government departures as burdensome or biased. Understanding Lochnerism this way opens up one critical approach to cases like Citizens United, Sorrell, and Hobby Lobby.11See infra sections II.A.3–4.

Notably, this way of interpreting the First Amendment applies beyond courts. It has purchase wherever constitutional arguments occur: in legislatures, administrative agencies, nonprofit organizations, media outlets, and political mobilizations. This interpretation highlights the way the Lochner Court deployed a political economy that frustrated democratic principles. And it suggests that such a proclivity can be shared by legislative and executive actors. Part II therefore features current examples from outside the judiciary. And it draws not only from speech law, which has dominated the literature so far,12But see Elizabeth Sepper, Free Exercise Lochnerism, 115 COLUM. L. REV. 1453, 1455–56 (2015) (comparing Lochnerism and modern freedom of religion jurisprudence). but also from the law of religious freedom.13See infra section II.A.4 (free exercise).

Part II ends with a particular account of the breakdown of the midcentury settlement. Although this point is closely related to the diagnosis of Lochnerism, the two are distinct. While the comparison to Lochner is designed to identify pathologies, the observation that the settlement is being reworked has no necessary negative valence. That arrangement may have been unprincipled from the start. Understanding it from the perspective of democratic theory suggests that the problem is not that the Court has begun to operate with an account of the relationship between law, politics, and the economy—that is inevitable—but instead that it is choosing an account that undermines collective self-determination.14See infra subpart II.B. Rather than rehabilitate the settlement, then, constitutional actors might respond by improving their understanding of how First Amendment rights interact with economic justice. Questions of institutional design—e.g., how to allocate authority to interpret and enforce the Constitution among branches of government—could then be answered from that perspective.

A few caveats. Nothing here should be read to suggest that constitutional law is especially important for combatting contemporary forms of unfreedom or inequality. To the degree that First Amendment decisions are contributing to the difficulty, however, it is necessary to construct alternatives. A related caution is that courts are unlikely to lead the effort to reimagine free speech and religious liberty. Constitutional arguments are likely to have greater impact outside the judiciary.15For examples, see infra subpart I.A, sections II.A.3–4. For a leading theory of institutional design in constitutional decision-making, see LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES 1–11 (2004).

Third, I bracket the matter of whether economic rights to contract and property should be constitutionalized,16Compare JOHN TOMASI, FREE MARKET FAIRNESS 89–92 (2012) (giving civil, political, and economic liberties the status of rights that the government can limit only for compelling reasons), with Alan Patten, Are the Economic Liberties Basic?, 26 CRITICAL REV. 362, 363 (2014) (arguing that economic liberties should not enjoy priority but defining economic liberties somewhat broadly and understanding priority in a particular way), and with Anna Stilz, Is the Free Market Fair?, 26 CRITICAL REV. 423, 423 (2014) (offering “doubts about whether ‘thick’ economic freedom is a condition of democratic legitimacy”). and I stop short of proposing socioeconomic rights to housing, education, basic income, health care, and the like.17Cf. Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, 94 B.U. L. REV. 671, 692–95 (2014) (advocating for a return to the “Anti-Oligarchy Constitution”); William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 14 (1999) (tracing the founding history of the idea that citizens had “a right to sufficient property upon which to work to support themselves and their families”); Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U. PA. L. REV. 962, 962 (1973) (discussing Rawls’s A Theory of Justice as it relates to “affirmative rights . . . to education, shelter, subsistence, health care, and the like”). Although those kinds of guarantees may well be attractive, I first want to explore the more proximate and difficult argument that distributive imperatives affect our interpretation of negative rights. 18See, e.g., Lea Ypi, The Politics of Reticent Socialism, 2 CATALYST 157, 157–76 (2018), https://catalyst-journal.com/vol2/no3/the-politics-of-reticent-socialism [https://perma.cc/AG5M-GUN7] (reviewing WILLIAM A. EDMUNDSON, JOHN RAWLS: RETICENT SOCIALIST (2017) ) (exploring such a transitional strategy).

Nor should my argument be taken to suggest that the First Amendment requires a particular distribution of primary goods. Rather, legal interpretation should be guided by a democratic commitment to ensuring the conditions for cooperative governance and the exercise of individual rights. For now, I have little to say about the demands of distributive justice that are independent of those conditions. 

I understand that some critical theorists have given up on rights discourse altogether. Even for them, however, the argument here should hold some interest, if only as part of a transitional strategy that negotiates longstanding features of existing constitutional discourse.18 An ambition of this Article is to bring together the critical literature’s powerful diagnosis of existing First Amendment practice with a constructive effort to imagine an alternative. 

Finally, it must be accepted that a turnabout in First Amendment interpretation is not likely anytime soon, given judicial and political realities. Nevertheless, academics can productively strive to develop a constitutional vision that is fully worked out, both in case conditions change and in order to promote that change with grounded arguments. Academics occupy an institutional position outside the government, advocacy groups, and business organizations, and they therefore have a distinct opportunity to undertake that work.

To read more, click here: A Democractic Political Economy For the First Amendment.

References   [ + ]

1. See THOMAS PIKETTY, CAPITAL IN THE TWENTY-FIRST CENTURY 15, 23 (2014) (arguing that income inequality has increased since the 1970s so that in 2000–2010 it matched and even exceeded the level in 1910–1920).
2. See Janus v. AFSCME, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting) (warning that the Court had “weaponize[ed]” the First Amendment “in a way that unleashes judges . . . to intervene in economic and regulatory policy”).
3. See Nat’l. Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2381–83 (2018) (Breyer, J., dissenting) (recognizing that the Court’s approach “invites courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic regulation” and citing Lochner v. New York, 198 U.S. 45 (1905) ); see also Sorrell v. IMS Health Inc., 564 U.S. 552, 602–03 (2011) (Breyer, J., dissenting) (“At worst, [the majority decision] reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”).
4. This has also been referred to as the “New Deal settlement,” the “liberal compromise,” the “civil liberties compromise,” and the “civil liberties settlement.” See, e.g., LAURA WEINRIB, THE TAMING OF FREE SPEECH: AMERICA’S CIVIL LIBERTIES COMPROMISE 9 (2016) (“civil liberties compromise” and “civil liberties settlement”); Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 COLUM. L. REV. 1953, 1967 (2018) (“liberal compromise”); Larry D. Kramer, The Supreme Court 2000 Term: Foreword: We the Court, 115 HARV. L. REV. 5, 14 (2001) (“New Deal settlement”).
5. See, e.g., Becerra, 138 S. Ct. at 2381 (Breyer, J., dissenting) (“Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution. Ever since this Court departed from the approach it set forth in Lochner v. New York, ordinary economic and social legislation has been thought to raise little constitutional concern.” (citations omitted) ). The legal source of the settlement is generally thought to be United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See, e.g., Suzanna Sherry, Property Is the New Privacy: The Coming Constitutional Revolution, 128 HARV. L. REV. 1452, 1469 (2015) (“[T]he Carolene Products footnote created bifurcated review.”). While these categories of rights—political, social, and economic—cannot be neatly maintained, practitioners commonly use them in this context.
6. See Jeremy K. Kessler, The Political Economy of “Constitutional Political Economy,94 TEX. L. REV. 1527, 1528–29 (2016) (noting that “constitutional political economy became something of a dead language” after the New Deal) (citing JOSEPH FISHKIN & WILLIAM E. FORBATH, THE ANTI-OLIGARCHY CONSTITUTION (forthcoming 2020) (manuscript at 65–66) ).
7. For one call to rethink the First Amendment’s economic valence, see Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 COLUM. L. REV. 2161, 2163 (2018).
8. See NELSON TEBBE, RELIGIOUS FREEDOM IN AN EGALITARIAN AGE 25–36 (2017) (describing the coherence method).
9. See infra Part I.
10. See, e.g., Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 SUP. CT. REV. 233. The term anticlassificatory, which I owe to Genevieve Lakier, does not capture all aspects of the conception of rights that I wish to describe, but it indicates some central features. See infra subpart II.B.
11. See infra sections II.A.3–4.
12. But see Elizabeth Sepper, Free Exercise Lochnerism, 115 COLUM. L. REV. 1453, 1455–56 (2015) (comparing Lochnerism and modern freedom of religion jurisprudence).
13. See infra section II.A.4 (free exercise).
14. See infra subpart II.B.
15. For examples, see infra subpart I.A, sections II.A.3–4. For a leading theory of institutional design in constitutional decision-making, see LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES 1–11 (2004).
16. Compare JOHN TOMASI, FREE MARKET FAIRNESS 89–92 (2012) (giving civil, political, and economic liberties the status of rights that the government can limit only for compelling reasons), with Alan Patten, Are the Economic Liberties Basic?, 26 CRITICAL REV. 362, 363 (2014) (arguing that economic liberties should not enjoy priority but defining economic liberties somewhat broadly and understanding priority in a particular way), and with Anna Stilz, Is the Free Market Fair?, 26 CRITICAL REV. 423, 423 (2014) (offering “doubts about whether ‘thick’ economic freedom is a condition of democratic legitimacy”).
17. Cf. Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, 94 B.U. L. REV. 671, 692–95 (2014) (advocating for a return to the “Anti-Oligarchy Constitution”); William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 14 (1999) (tracing the founding history of the idea that citizens had “a right to sufficient property upon which to work to support themselves and their families”); Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U. PA. L. REV. 962, 962 (1973) (discussing Rawls’s A Theory of Justice as it relates to “affirmative rights . . . to education, shelter, subsistence, health care, and the like”).
18. See, e.g., Lea Ypi, The Politics of Reticent Socialism, 2 CATALYST 157, 157–76 (2018), https://catalyst-journal.com/vol2/no3/the-politics-of-reticent-socialism [https://perma.cc/AG5M-GUN7] (reviewing WILLIAM A. EDMUNDSON, JOHN RAWLS: RETICENT SOCIALIST (2017) ) (exploring such a transitional strategy).

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