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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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Constitutional Absolutes in a Holmesian World

Constitutional Absolutes in a Holmesian World

(p.263) Chapter 11 Constitutional Absolutes in a Holmesian World
No Law
Stanford University Press

This chapter proposes that the First Amendment should be uncoupled from the early-twentieth-century mindset that conditions its current interpretation, and that constitutional law should return to the founding era's predominant understanding of the amendment as a ban on the exercise of a certain power rather than as a guarantee of individual liberty. It argues that the First Amendment would make more sense in relation to constitutional law if the amendment were thought of as a structural provision defining the scope of federal power and not, or not primarily, as a provision protecting individual liberty. It proposes to read the free speech and free press clauses as denials of power to Congress, and to give that denial its full textual force.

Keywords:   First Amendment, Constitution, constitutional law, federal power, individual liberty, free speech, free press

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