Book Review: The First Amendment and the Future of American Democracy

Jeremy A. Rabkin, American Spectator (March 1977).


In the late 1930s, the Supreme Court largely abandoned its traditional defense of property rights and also gave up its long struggle to maintain a balance in the federal system by keeping Congress within the bounds of the interstate commerce clause. In the decades since, the Court has instead become increasingly vigilant in its defense of noneconomic liberties or, as they are sometimes called, “human rights”–presumably to distinguish them from those rights tainted by the inhuman institution of property. First Amendment case law, almost entirely the work of twentieth-century Courts, plainly reflects the new emphasis: almost in proportion as it has come to defer to legislative judgment in the economic sphere, the Court has interpreted the prohibitions on governmental activity implied in the First Amendment more expansively and enforced them more intransigently.

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