Free Speech When Constitutionalism Was Unpopular

by Laura Weinrib

Chicago's Best Ideas
January 2013

In the mid-1930s, the future of judicial review was uncertain. Politicians, social activists, and even legal academics denounced the federal judiciary’s hostility toward New Deal legislation as a threat to democratic progress and economic recovery. In the face of President Roosevelt’s “court-packing plan” and competing proposals to curb judicial power, conservative lawyers sought strategies for restoring popular faith in the federal courts. Their solution, Professor Weinrib will argue, was to embrace a cause they had long denounced as a front for radical activity: the judicial protection of free speech. After decades of heated clashes, the American Bar Association joined forces with its long-time adversary, the American Civil Liberties Union, to celebrate the First Amendment. In a self-conscious attempt to improve its public image, it recast the federal judiciary as a defender of personal liberties as well as economic rights. The new civil liberties consensus produced an unprecedented but durable commitment to a constitutional and counter-majoritarian theory of free speech.

Laura Weinrib is Assistant Professor of Law at the University of Chicago Law School. This Chicago's Best Ideas talk was recorded on November 7, 2012.

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