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No LawIntellectual Property in the Image of an Absolute First Amendment$
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David L. Lange and H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780804745789

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804745789.001.0001

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Justice Black and the Absolute First Amendment

Justice Black and the Absolute First Amendment

(p.239) Chapter 10 Justice Black and the Absolute First Amendment
No Law
Stanford University Press

This chapter examines the origins and significance of Justice Hugo L. Black's First Amendment views. It begins by reviewing a related but quite distinct constitutional issue, the so-called incorporation debate. It then turns to Justice Black's absolutist interpretation of the First Amendment, which was driven by the same concerns and shaped by the same considerations as his approach to the incorporation issue. The relationship between Black's views on incorporation and his First Amendment absolutism suggests that his insistence on the primacy of the constitutional text stemmed from a sophisticated concern about the function of a written Constitution, the role of the judiciary in our constitutional system, and the consequences of judicial review based not on the Constitution's language but on extratextual abstractions.

Keywords:   Justice Hugo L. Black, First Amendment, Constitution, incorporation debate, constitutional issues, absolutism, judiciary, judicial review

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