Document Type


Publication Date



First Amendment, constitutional law, Supreme Court, equality, democracy


The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market effi­ciency; but, I argue, closer to their heart is antistatist fear of entrench­ment by elected officials, interest groups, and bureaucrats. These opin­ions limit the power of government to imple­ment distributional judgments in key areas of policy and, by thus tying the government’s hands, constrain opportunities for entrenchment. This antidistributive deployment of market-protecting policy is the signature of neoliberal jurisprudence.

But this jurisprudence has deep problems in an order of capitalist democracy such as ours. Whenever the state cannot implement distribu­tional judgments, markets will do so instead. Market distributions are, empirically speaking, highly unequal, and these inequalities produce their own kind of entrenchment—class entrenchment for the wealthy. A jurisprudence that aims at government neutrality by tying the distribu­tional hands of the state cannot achieve neutrality but instead impli­citly sides with market inequality over distinctively democratic forms of equality. Once we see that any constitutional vision involves some rela­tionship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.

Library of Congress Subject Headings

Freedom of speech, Democracy

Included in

Law Commons