Ronald J. Krotoszynski Jr. * | 25.1 | Citation: Ronald J. Krotoszynski, Common Law Constitutionalism and the Protean First Amendment, 25 U. Pa. J. Const. L. 1 (2023).

Read Full Article

Not unlike the Greek god Proteus, a famous shape-shifter, the First Amendment seems to change its form and shape over time, through a process of dynamic judicial construction, to promote and safeguard the ongoing project of democratic deliberation. In fact, the First Amendment’s text plays virtually no meaningful role in protecting expressive freedom in the contemporary United States. Despite containing four distinct clauses (the Speech, Press, Assembly, and Petition Clauses), only the Free Speech Clause seems to do any meaningful jurisprudential work. The Press, Assembly, and Petition Clauses have fallen into desuetude; they generate little constitutional litigation and very few Supreme Court decisions. Textualist jurists, including Justices Neil Gorsuch, Clarence Thomas, Antonin Scalia, and Hugo Black, routinely claim that they must strictly follow the text as written when interpreting the Constitution. Curiously, however, these self-described textualist and originalist jurists do not follow this interpretative approach when applying the First Amendment. Instead, First Amendment interpretation is invariably purposive, dynamic, and of the “living tree” stripe. This phenomenon raises important and interesting questions about the relevance and efficacy of constitutional text in securing both expressive freedom and fundamental rights more generally. In the U.S., and abroad as well, expressive freedom depends much more on social, cultural, and political norms and traditions than on constitutional text. The protean First Amendment strongly suggests that—notwithstanding the vociferousness with which conservative judges, legal scholars, and lawyers advance textualist claims—the process of constitutional adjudication is, in its essence, a common law enterprise. Simply put, text can constrain only insofar as it provides a plausible basis for a judicial decision that accords with the contemporary constitutional sensibilities of We the People. 

***

* John S. Stone Chair, Director of Faculty Research, and Professor of Law, University of Alabama School of Law.