Date of Award

Spring 2022

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Law

First Advisor

Eskridge, Jr., William

Abstract

The three major essays and two smaller pieces that form this dissertation focus on the recent deregulatory turn in U.S. constitutional law. They analyze changing, and often competing, understandings of liberty and its relationship to concepts of welfare, choice, democracy, and the purposes of the state. Over the past forty years plaintiffs have increasingly invoked the Constitution, and the free speech clause in particular, in efforts to avoid economic regulation. Areas of life that were once thought irrelevant to the Constitution have become the fodder of pitched litigation, circuit splits, top appellate practices, and United States Supreme Court review. This dissertation traces the origins of that emerging constitutional revolution, which I describe as the Constitution’s neoliberal turn, and analyzes its implications for administrative practice, theories of democratic legitimacy, and constitutional change. The dissertation is animated by several questions: How do social processes structure law, and how is it structured by them? How does the law conceive of the person, liberty, welfare, democratic participation and legitimacy, and the purposes of the state? The essays herein are prominently informed by both doctrinal and legal realist perspectives. Several draw strongly on social science research, particularly in psychology and behavioral law and economics. The first major essay, The New Lochner, traces two of the key forces that have led to greater conflict between the First Amendment and modern administrative state: (1) a business-led social movement has fostered a deregulatory turn in commercial speech law and (2) administrative law and practice have shifted toward lighter-touch forms of governance that appear more speech-regulating. While a number of scholars have labeled the deregulatory use of the First Amendment a type of Lochnerism, this piece analyzes that analogy to identify the distinctive features of contemporary constitutional deregulation. Those distinctive features include: (1) Different scopes—contemporary constitutional deregulation is broader more trump-like than Lochner-era economic liberty. (2) Different theoretical justifications—where Lochner was based in the theory of Adam Smith and laissez-faire capitalism, advocates of the new Lochner largely base their arguments on the idea that “all speech is speech.” And (3) different baselines—where Lochner rested on the common law distribution of entitlements, the new Lochner largely rests on the apparent obviousness of what constitutes speech. The paper argues that because of the pervasiveness of speech and expression, the First Amendment sets the fullest boundary line of state power. As a result, if taken to its logical conclusion, the argument advanced by advocates of First Amendment deregulation—that all expression is speech for constitutional purposes, and all speech should be subject to the same stringent level of judicial scrutiny—would render democratic self-governance impossible. The first shorter essay, Adam Smith’s First Amendment, which was co-authored with former Dean Robert Post, provides a theorization of the democratic purpose of the First Amendment that, we argue, the First Amendment’s recent deregulatory turn subverts. The second major paper is First Amendment Coverage. First Amendment coverage—the term for the practices to which “the freedom of speech” extends—has been notoriously resistant to both description and theorization. At the same time, First Amendment coverage is currently undergoing great transformations: more of the regulation of economic life is seen in U.S. legal culture as of constitutional moment. This piece provides, first, a positive account of coverage. I demonstrate that while the First Amendment is often thought of as libertarian, its scope reflects the reverse: the social logic of and need for cohesive norm communities. Second, the piece provides a proscriptive argument about how we should approach First Amendment coverage, namely with consideration of those social and institutional contexts. In Business Licensing & Constitutional Liberty, the second shorter essay, I present current constitutional claims about business licensing in the context of the abovementioned trends. I argue that the important thing about these cases has little to do with licensing per se, but instead relates to the expansion of the Constitution and competing substantive understandings of liberty and the proper roles of the state and judiciary within U.S. legal culture. The last paper, The Tragedy of Democratic Constitutionalism, analyzes the broader shift towards a vision of liberty that is defined as freedom from the state and that views market ordering as central to the meaning and operationalization of constitutional liberty. This shift, the paper documents, is occurring not only under the Speech Clause but across a range of constitutional doctrines. The paper critiques the three major justifications for the emergent view of constitutional liberty—one from classical economics, one from originalism, and one from libertarian philosophy: (1) The paper notes that we might contest the importation of neoclassical principles into constitutional law on the grounds articulated by behavioral law and economics scholars. Even bracketing the empirical question of whether people act in consistently rational, wealth-maximizing ways, however, the justification from classical economics faces a steep challenge on its own terms. Namely, rational self-interest, even if stipulated, may not lead to optimal social welfare outcomes, as Garrett Hardin observed in The Tragedy of the Commons. (2) I argue that the living constitutionalist means by which the emergent model is being constructed is also contrary to the methodology from which originalism derives its normative force. (3) The justification from libertarian philosophy fails, too, because it offers no reason that its version of liberty should supplant others in constitutional law, particularly in a country of diverse values. And it ignores both the ways in which non-governmental forms of power structure choice, as Robert Hale observed, and the dimensions of lived freedom that depend on social interdependence rather than autonomy. The paper then situates the emergent constitutional shift within broader theories of constitutional change. It builds off the fact that the U.S. constitutional system is one of open-textured rights, the meanings of which are sensitive to litigant advocacy and norm change, as a deep literature in democratic constitutionalism has traced. Against the backdrop of a highly unequal world, the paper argues, this sensitivity exerts a system-tilt towards constitutional visions of liberty, like the emergent one, that entrench existing distributions of wealth, power, and status—as a product of contingent, if persistent, institutional, and cultural arrangements. That same sensitivity of the U.S. constitutional system to social forces, however, makes the trend toward status-quo-entrenching understandings of liberty one that a sufficiently mobilized populace can overcome.

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