The Romance of the First Amendment

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“On July 15, 1838, Ralph Waldo Emerson delivered an address to Harvard Divinity School that led to his thirty year ban from the institution. Emerson’s famous speech demanded and insisted of his audience that they speak out. Everyone faces the question, “Will you fulfill the demands of the soul or will you yield yourself to the conventions of the world?” The Harvard divines thought Emerson went too far; perhaps he did. Dissenters often do. Although Emerson’s perspective has helped shaped our literature and our culture, it has yet to be realized in American law. Emerson’s thought has been presented in thousands of classrooms to millions of students, but no Justice has ever even once referred to the free speech views of Ralph Waldo Emerson in any Supreme Court case. If an organizing symbol makes sense in First Amendment jurisprudence, it is not the image of a content-neutral government; it is not a town hall meeting or even a robust marketplace of ideas; still less is it liberty, equality, self-realization, respect, dignity, autonomy, or even tolerance. If it must need a symbol, let it be Emerson’s own: the dissenter. A major purpose of the first amendment is to protect the romantics – those who would break out of classical forms: dissenters, unorthodox, the outcasts. The First Amendment’s purpose and function in the American polity is not merely to protect negative liberty, but also affirmatively to sponsor the individualism, the rebelliousness, the anti-authoritarianism, the spirit of nonconformity within us all.”

– Steven Shiffrin, “The First Amendment, Democracy, & Romance”

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