Question

1. How would you describe this judge’s ability to be neutral, principled and consistent?

Answer 1

NEUTRAL ACCESS

Proper exercise of this authority requires that the Court's decisions res on "reasons that in their generality and their neutrality transcend any immediate result that is involved.1 3 The legitimate exercise of the Court's power is dependent upon its ability to demonstrate in reasoned opinions that it has a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisoni an model that alone justifies its power.'4Thus, the Court must act on principles outside its own value choices; that is, it "must not be merely a 'naked power organ.""P 5B. The Constitution as Law: Neutral Principles Under Bork's theory the Constitution is to be interpreted as law in much the same way a judge would interpret a statute, a contract, a will, or the opinion of a court. This is not to say that a judge should not take into account the differences in various legal materials.6 But, these differences aside, "the judge is to interpret what is in the text and not some thing else."'17Bork's concept of neutral principles logically follows from the premise that the Constitution is law. Bork borrows the term "neutral principles"

We live in an age when, according to the U.S. Supreme Court, “disgust is not a valid basis for restricting expression.” This open-ended pronouncement now forbids regulating the depiction of animal cruelty, the sale of graphically violent video games to minors, lying about receiving the Medal of Honor, and defaming a soldier at that soldier’s funeral.

Neither these conclusions nor the Court’s premise that “one man’s amusement, teaches another’s doctrine,” is based on the Free Speech Clause first adopted by the American people. This critique may be unfashionable in an increasingly relativistic age, and may confuse the literal reader of the First Amendment’s blanket ban on any “law . . . abridging the freedom of speech.”

But the Court’s free speech absolutism is not the neutral principle it purports to be. By rooting its jurisprudence in the Court’s own value choices and not the First Amendment’s original meaning, the Court usurps the people’s rightful authority to assess the harm inflicted by speech, thereby equating “the freedom of speech” with willful blindness toward the principled distinctions between regulating valuable and vile speech.

The one consistent dissenter from the new depths of free speech protection, Justice Samuel Alito, provides a powerful critique rooted in the same response that Judge Robert Bork leveled against the Warren Court’s usurping of democratic authority in the 1970s. In then-Professor Bork’s seminal law review article, “Neutral Principles and Some First Amendment Problems” (1971), he explained how a judge in a democratic society can strike down democratic acts while preserving democratic rule. Essential to Bork’s argument is that a neutrally-applied principle of constitutional adjudication, such as generally prohibiting the people from regulating any speech content, is not truly “neutral” simply because the Court consistently applies it.

As Justice Alito said in his confirmation hearing, the “task of the judiciary is to apply principles that are in the Constitution, and not make up its own principles” (emphasis added). Thus, genuine neutrality requires the principle to be neutrally derived: it must be drawn from the Constitution’s text, history, and structure. Such a theory is truly neutral in that the judge is an intermediary in the interpretive process: a judge accepts the value choices of today’s majority as expressed in the text of its laws, unless an earlier value choice as expressed in the text of a constitutional provision contravenes it.

To be sure, this “originalist” inquiry is not necessarily easy—a point manifested in how puzzling it is to define the breadth of the Free Speech Clause. Still, we know enough to know that the Court’s recent decisions protect speech well outside the clause’s original scope.

Nearly all legal scholars agree that, if nothing else, “the freedom of speech” includes political speech—given the goal of the Bill of Rights as a bulwark against tyranny. At the Founding, a prior restraint on speech (prohibiting speech before it is spoken) was prohibited. While the Free Speech Clause’s text may tempt one to take its absolutist prohibition literally, the Founding generation had laws against pornography, blasphemy, libel, defamation, fraud, and perjury. Longstanding criminal prohibitions on solicitation (asking another to commit a crime), or conspiracy (an agreement with others to commit a crime) prohibited certain speech on criminal conduct.

1. The Neutral Derivation and Definition of Principles

2. The Neutral Application of Principles