Academic

Garry on the First Amendment & Equal Protection

By Lawrence Solum

Patrick M. Garry (University of South Dakota - School of Law) has posted An Equal Protection View of the First Amendment (Quinnipiac Law Review, Vol. 28, No. 4, p. 787, 2010) on SSRN. Here is the abstract:

This article considers the debate among scholars as to the intent and purpose behind the Bill of Rights. One argument is that the Bill of Rights seeks to protect certain individual fundamental rights. Under this argument, the Bill of Rights seeks first and foremost to identify particular individual freedoms and to then create a constitutional protection for those substantive freedoms. There is, however, another argument that looks at the Bill of Rights from a wholly different perspective. This argument sees the Bill of Rights as provisions designed primarily to better ensure the maintenance of limited government within our constitutional scheme.

The way the Bill of Rights protects individual freedoms is through an equal protection approach. This approach best harmonizes the constitutional protections listed in the Bill of Rights with the workings of the democratic process outlined in the original Constitution. A democracy allows a society to govern itself according to its best judgment. The glaring problem with any democracy, however, is how to handle minorities and minority rights. An equal protection approach best serves this concern. At the same time, it also allows democratic society to govern itself, the only proviso being that whatever the majority does to the minority, it has to do to itself.

By viewing the Bill of Rights as first a provision aimed at ensuring that government possesses only limited powers and second as mandating that the various listed freedoms be protected through an equal protection approach, courts would be relieved of having to identify the parameters and underlying values and purposes of various individual rights and freedoms. By viewing the Bill of Rights as seeking to protect individual freedoms through an equal protection approach, courts can avoid interjecting their own substantive values. Thus, their role can be both narrower and more defined, which in turn will help preserve judicial integrity and authority.

Full post as published by Legal Theory Blog on December 14, 2010 (boomark / email).