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For many years, commercial speech was summarily excluded from First Amendment protection, without reason or logic. Starting in the mid-1970s, the Supreme Court began to extend protection but it remained strictly limited. In recent years, that protection has expanded, but both Court and scholars have refused to consider treating commercial speech as the First Amendment equivalent of traditionally protected expressive categories such as political speech or literature. Commercial Speech as Free Expression stands as the boldest statement yet for extending full First Amendment protection to commercial speech by proposing a new, four-part synthesis of different perspectives on the manner in which free expression fosters and protects expressive values. This book explains the complexities and subtleties of how the equivalency principle would function in real-life situations. The key is to recognize that as a matter of First Amendment value, commercial speech deserves treatment equivalent to that received by traditionally protected speech.

Frontmatter -- Contents -- Preface -- 1. Introduction: The First Amendment and American Democracy -- 2. Adversary Democracy and American Political Theory -- 3. Cooperative Democracy and Public Discourse: The Flawed Free Speech Theories of Robert Post and Alexander Meiklejohn -- 4. Commercial Speech and the Twilight Zone of Viewpoint Discrimination -- 5. The Anticorruption Principle, Free Expression, and the Democratic Process -- 6. Adversary Democracy, Political Fraud, and the Dilemma of Anonymity -- 7. Conclusion: The Optimistic Skepticism of the Adversary First Amendment -- Notes -- Index

Introduction : America's contribution to political thought : prophylactic judicial independence as an instrument of democratic constitutionalism -- The foundations of American constitutionalism -- A taxonomy of judicial independence -- Judicial impeachment, judicial discipline, and American constitutionalism -- State courts, due process and the dangers of popular constitutionalism -- Constitutionalism, democracy, and the pathology of legislative deception -- Habeas corpus, due process, and American constitutionalism

Many have argued that soft money and special interests are destroying the American electoral system. And yet the clarion call for campaign finance reform only touches on the more general belief that money and economic power have a disastrous impact on both free expression and American democracy. The nation's primary sources of communication, the argument goes, are increasingly controlled by vast corporate empires whose primary, or even exclusive motive is the maximization of profit. And these conglomerates should simply not be granted the same constitutional protection as, say, an individual p

Many have argued that soft money and special interests are destroying the American electoral system. And yet the clarion call for campaign finance reform only touches on the more general belief that money and economic power have a disastrous impact on both free expression and American democracy. The nation's primary sources of communication, the argument goes, are increasingly controlled by vast corporate empires whose primary, or even exclusive motive is the maximization of profit. And these conglomerates should simply not be granted the same constitutional protection as, say, an individual protester. And yet neither the expenditure of money for expressive purposes nor an underlying motive of profit maximization detracts from the values fostered by such activity, claims Martin H. Redish. In fact, given the modern economic realities that dictate that effective expression virtually requires the expenditure of capital, any restriction of such capital for expressive purposes will necessarily reduce the sum total of available expression. Further, Redish here illustrates, the underlying motive of those who wish to restrict corporate expression is disagreement with the nature of the views they express. Confronting head-on one of the sacred cows of American reformist politics, Martin H. Redish here once again lives up to his reputation as one of America's most original and counterintuitive legal minds.

Over the last forty years both modern constitutional scholarship and Supreme Court constitutional doctrine have concentrated on the analysis of rights, while issues of constitutional law related to the structure of government have been largely ignored. The irony of this interpretive emphasis is that the Constitution itself contains relatively little dealing with rights. Rather, it is primarily a blueprint for the establishment of a complex form of federal-democratic structure. This work is the only scholarly attempt to emphasize the central role served by the structural portions of the Constitution. Redish argues that these structural values were designed to provide the foundation in which our rights-based system may flourish, and that judicial abandonment of these structural values threatens the very basis of American political theory.

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution's provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the very political branches that the Constitution is designed to restrain will fully control the remedies to be issued. Thus, all the political branches need to do to avoid constitutional control is deny the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet neither constitutional scholars nor the Supreme Court have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existence—of remedies to enforce constitutional dictates. This Article explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. It then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation, highlights the inadequacy of scholarly work in this area, and answers potential counterarguments. Finally, it applies this theory of constitutional remedies to the Supreme Court's implied remedies jurisprudence.

Those who classify themselves as liberal generally favor widespread use of class actions as a means of policing corporate misbehavior and protecting the individual worker or consumer against capitalist excesses. In this Essay, however, I take the counterintuitive position that while class action practice could conceivably be modified in ways that make it far more acceptable than it currently is, liberal political theory should be very skeptical of the modern class action device as it currently exists. Defining the foundation of liberal thought as a process-based belief in accountable democratic government and respect for the right of individuals to protect their rights by resort to the judicial process, I find that in all too many cases, the modern class action is substantially inconsistent with this liberal ideal. In their current form, class actions often serve as a means to deceptively alter existing substantive law through backdoor procedural transformation. This undermines both foundational premises of process-based liberalism.

In a time where the executive branch continues to grow in size and strength, reviving the nondelegation doctrine has become more important than ever. Judicial enforcement of this abandoned rule that Congress cannot delegate its legislative power serves three vital functions. It preserves the separation of powers, prevents tyranny, and promotes democratic accountability. But even if we acknowledge that enforcement of the doctrine is necessary to preserve the American form of government, a more difficult question is how the doctrine ought to be enforced. This Article rejects the formulations of the nondelegation doctrine proposed by both functionalists and formalists and proposes "pragmatic formalism" as a solution that carves a path between the two existing theories. After explaining the theory and applying it to the facts of the Supreme Court's major nondelegation cases, the Article also proposes a solution to one of the most difficult challenges facing the nondelegation doctrine: delegation during times of national emergency. By advocating for the use of pragmatic formalism to enforce the nondelegation doctrine, I hope to provide a rule that preserves the separation of powers, prevents tyranny, and promotes democratic accountability, but that also takes into account the realities and difficulties of lawmaking.