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The First Amendment, Democracy, and Romance

The First Amendment, Democracy, and Romance

Steven H. Shiffrin
Copyright Date: 1990
Pages: 296
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  • Book Info
    The First Amendment, Democracy, and Romance
    Book Description:

    If an organizing symbol makes sense in First Amendment jurisprudence, it is not the image of a content-neutral government, argues Steven Shiffrin, nor is it a town-hall meeting or even a robust marketplace of ideas. If the First Amendment is to have an organizing symbol, let it be an Emersonian symbol: let it be the image of the dissenter.

    Originally published in 1993.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6346-4
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Introduction
    (pp. 1-8)

    On July 15, 1838, Ralph Waldo Emerson delivered an address to the Harvard Divinity School. The response was outrage. Emerson was not invited to speak again at Harvard for almost thirty years.

    The outrage was provoked. In speaking against “historical Christianity,”¹ Emerson told the “Unitarian clergy to their faces that they were preaching a dead theology.”² If Christ was important for religion, Emerson said, it should be because of what he said and not because of who he was. To emphasize the authority of Christ, rather than the power of his message, was to “corrupt”³ all attempts at communication, to...

  4. 1 The First Amendment and Social Engineering
    (pp. 9-45)

    Leo Tolstoy was a fox masquerading as a hedgehog. So said Isaiah Berlin.¹ The fox, Berlin explained, knows many things; the hedgehog knows one big thing. Tolstoy “preached not variety but simplicity, not many levels of consciousness but reduction to some single level . …”² Yet Tolstoy’s talent was to depict the multiplicity of nature, and his depictions overwhelmed his metaphysical commitments. He wanted to believe that the massive diversity he described ultimately belonged to one system, but his detailed evocations of the concrete resisted absorption into any well-rounded whole. Nonetheless, Tolstoy persisted in his belief in the one over...

  5. 2 The First Amendment and Democracy
    (pp. 46-85)

    Everyone thinks the first amendment stands for something, even balancers. To say that speech values are not all-important or to say that they must give way in concrete circumstances may be thought of as realistic or, alternatively, as dangerous. But to balance is not to deny first amendment meaning or value. Indeed, any notion that one could balance first amendment values without some notion of what they were would be incoherent.

    What first amendment values are and should be, however, has recently been much contested. For decades the Supreme Court had been rather unselfconscious about the nature of first amendment...

  6. 3 The First Amendment and Dissent
    (pp. 86-109)

    Richard Parker has written that conventional modes of constitutional argument “figuratively communicate ideological assumptions—general assumptions of political life—through their characteristic rhetoric and their characteristic metaphor.”¹ Development of first amendment doctrine has unquestionably been influenced by striking pictures and powerful rhetoric. As I wrote some years ago, “[T]he specter of a man shouting [fire falsely] in a theater [still preoccupies] first amendment scholarship. And so the commentators (not to mention the courts) try to decide whether Nazis marching in Skokie, communists advocating revolution, pornographers selling their wares, publishers defaming all manner of plaintiffs, or ambulance chasers soliciting customers are...

  7. 4 The First Amendment and Method
    (pp. 110-139)

    A first amendment case can not be resolved without a method¹ to resolve it. Many commentators insist, however, that the method used 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 decisionmaking process, but also the quality of decisions produced. Critics might suggest, for example, that it is not enough to be told that Schenck, Dennis, Whitney, O’Brien, Myers, and Carlin are dissenters, or that an act of dissent challenges existing habits, customs, traditions, or authorities. Certainly, they would not be satisfied with the...

  8. 5 The First Amendment and Romance
    (pp. 140-170)

    InThe Creation of the American Republic, Gordon Wood writes that the American Constitution “marked an end of the classical conception of politics and the beginning of what might be called a romantic view of politics.”¹ This romantic view of politics, according to Wood, emphasizes “the piecemeal and the concrete in politics at the expense of order and completeness,”² or as he also says, “The Constitution represented both the climax and the finale of the American Enlightenment, both the fulfillment and the end of the belief that the endless variety and perplexity of society could be reduced to a simple...

  9. Notes
    (pp. 173-280)
  10. Index
    (pp. 281-285)