Classic Revisited: Shiffrin, “The First Amendment, Democracy, and Romance”

For some work I am now doing, I recently read a wonderful book by Steven H. Shiffrin (Cornell), The First Amendment, Democracy, and Romance (Harvard UP 1990) and thought it would be a very good choice as a classic revisited.  Though the book focuses primarily on free speech rather than the religion clauses (Steve of course is deeply learned in both and has more recently written about the religion clauses extensively), and while I enjoyed (and agreed with!) much of the book, there is one portion which resonated especially deeply with me.  It is Chapter 4: “The First Amendment and Method.”  And Steve’s “romantic” pluralistic preferences, which shine through in this and later chapters, represent an original, provocative, and deeply appealing approach to constitutional interpretation.  Here’s a bit from Chapter 4 (110-112), in which Steve contrasts “eclecticism” and (what he calls) “Kantianism” in First Amendment methodology:

A first amendment case cannot be resolved without a method to resolve it.  Many commentators insist, however, that the method to resolve first amendment cases has been ad hoc and subjective.  The implication is that an improvement of method could significantly improve not only the decision-making process, but also the quality of decisions produced . . . . By contrast, I maintain that the problem with first amendment decision-making is for the most part not with the method employed but with the values held by decision-makers . . . .

The method employed in first amendment decision-making, however, has importance that transcends its capacity to determine results in individual cases . . . . If the first amendment is to serve as an important cultural symbol, the modes of justification we use to persuade ourselves and others of its value and importance are themselves of special importance.  Our modes of justification themselves exhibit features of our character and appeal to features of our personality . . . .

Indeed, my view is that the commitment to a particular type of method can be a major part of an individual’s intellectual identity.

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