By John D. Inazu. Full text here.
Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights. In Hamburger’s words, “more is less.” We can think of cautions like these as arguments for rights confinement. On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly. But the interplay between doctrine and cultural views suggests that rights confinement is an unproven, and indeed, unprovable, theory. Sometimes rights expansion will increase rights protection. Sometimes “more is more.”
This Article explores the choice between rights expansion and rights confinement and the influence of cultural views on that choice. It focuses on the rights of free exercise, speech, and association. Part I describes the inclination toward rights confinement in First Amendment scholarship. Part II critiques Hamburger’s “more is less” claim in the free exercise context and suggests that although Hamburger correctly diagnoses a weakened free exercise right, he fails to establish rights expansion as its cause. Parts III and IV offer an alternative explanation for the weakened free exercise right: shifting cultural views about religious liberty and the government interests with which it intersects. Part V discusses why cultural views may play differently for rights expansion of the rights of speech and association. Part VI considers the implications of the relationship between cultural views and First Amendment rights for a contemporary constitutional challenge: private, noncommercial groups that resist antidiscrimination norms.