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Jedediah Purdy @JedediahSPurdy
, 7 tweets, 2 min read Read on Twitter
1/ On the 1st Amendment (whose "weaponization," per Justice Kagan, is now widely recognized: I've just finished an essay titled, "Beyond the Bosses' Constitution: Toward a Social-Democratic First Amendment." It's at the top of jedfieldwork.blogspot.com
2/ It argues that (A) capitalist democracy faces perennial tensions between political equality and self-rule on the one hand, economic inequality, power, and entrenchment on the other. Class is real, and a structural feature of a capitalist democracy.
3/ (B) If it is impossible to push back democratically against economic power--if it is allowed to colonize & dominate politics--then democracy is undermined or worse. (C) SCOTUS jurisprudence has done exactly this, from campaign finance to union dues.
4/ (D) These developments are rooted in a fear of democracy that entered US jurisprudence in the 1970s and has affinities with the Hayek/Schumpeter/Friedman lines of thought that sought to protect economic order from political "intrusion."
5/ (E) That was a form of political economy that's fair to call (pardon me) neoliberal. (F) Any First Amendment jurisprudence will have some implicit political economy, some idea of the relation between political & economic power & how to police it.
6/ (G) So there should be a social-democratic First Amendment as well--one aimed at redeeming the promise of democratic equality and self-rule in light of the realities of capitalist democracy.
7/ My janky blogspot attic ate my footnotes, but this will be up in a more proper form soon. It'll be part of a Columbia Law Review forum on the First Amendment's future.
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