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Can the Supreme Court find unconstitutional something that the text of the Constitution "contemplates"? If the Bill of Rights mentions a punishment, does that make it a "permissible legislative choice" immune to independent constitutional challenges? Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a Founding Era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.

This Essay identifies and elaborates two complications raised by Robert Post's Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post's theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution. The second complication is the interface between expert knowledge and public discourse. Post's theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example.

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the city's disagreement with a private message was the heart of its successful government speech argument. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.