Friday, November 23, 2007

A Doctrinal "Feedback Effect" 2

In my last post, I set the stage for Professor Akhil Amar’s justification of his position that “the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action.”

Unfortunately, here is where I get lost. Essentially, Professor Amar points out that neither First Amendment paradigm (local citizen complaining about distant federal government vs. beleaguered southern Unionist advancing Reconstruction against irate locals) is contained in the text of the First Amendment. Likewise, the text of the Amendment does not reflect either the pro-jury or the anti-jury rules that flow from those paradigms.

Professor Amar then proceeds as follows:
"[It is reasonable to infer] that the core purpose of the unreconstructed First Amendment was to prevent not majority tyranny, but self-dealing by unrepresentative government agents. Given an agency-cost theory of free speech, a jury may well be the best guardian of the First Amendment’s core – a conclusion buttressed by the efforts of eighteenth-century speakers like Zenger and Callender to appeal from judge to jury. But if the original “First Amendment due process” theory is built in part on structural inferences from Barron, then the Fourteenth Amendment’s repudiation of Barron requires us to rethink the original assumptions that led us to juries. Once the Fourteenth Amendment is on the books, the agency theory of free speech is less explanatory than the minority-protection theory, for the latter better accounts for speech limitations on majoritarian state legislatures. And the minority-protection theory suggests a different optimal allocation between judge and jury. To put the structural point textually, the parallel language between the First Amendment and the Fourteenth should strongly incline us toward a unitary theory of freedom of speech against both state and federal governments.

With all due respect to Professor Amar, whom I admire greatly, I just don’t think this flies (or, more likely, I just don’t understand what he's saying). Professor Amar may well be correct that “[o]nce the Fourteenth Amendment is on the books . . . the minority-protection theory . . . better accounts for speech limitations on majoritarian state legislatures.” That does not establish, however, that the minority-protection theory better accounts for speech limitations on the federal government. In 1866-68, Republicans who passed the Fourteenth Amendment almost certainly viewed the federal government -- which they controlled -- as part of the solution, not part of the problem. Why isn’t it equally or more reasonable to posit different theories applicable to the federal and state governments?

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