Practical Reason and the First Amendment
![handle is hein.journals/uclalr34 and id is 1631 raw text is: PRACTICAL REASON AND THE
FIRST AMENDMENT
Daniel A. Farber*
& Philip P. Frickey**
Modern legal scholarship increasingly aspires to intel-
lectual grandeur. In a discipline that once celebrated the
virtues of thinking small,' the current fashion is now high
level abstraction. Much constitutional scholarship, for ex-
ample, is no longer devoted to specific constitutional issues,
but rather to philosophical debates about the nature of con-
stitutional interpretation. A similar trend toward grand the-
ory can be seen in first amendment writing, in which many
scholars have turned to increasingly abstract theories.
These writers attempt to identify a single unifying purpose
to the first amendment, from which they then deduce an-
swers to concrete first amendment problems.2
In this essay, we will question the continued viability of
the modern style in first amendment scholarship.3 We be-
lieve that, however promising grand theory might have
seemed ten or twenty years ago, the results have been disap-
* HenryJ. Fletcher Professor of Law, University of Minnesota; Visiting Pro-
fessor, Stanford Law School.
** Associate Professor of Law, University of Minnesota. We thank William
Eskridge, Suzanna Sherry and Gerald Torres for their helpful comments on an
earlier draft of this article.
1. Karst, The First Amendment and Harry Kalven: An Appreciative Comment on the
Advantages of Thinking Small, 13 UCLA L. REV. 1 (1965). Yet even Kalven asserted
that the quest for coherent general [first amendment] theory ... needs no apol-
ogy and no defense. H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT 4
(1965).
2. Judge Posner has recently termed this approach formalism; like us, he
rejects this approach in constitutional law. See Posner, Legal Formalism, Legal Real-
ism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. 179, 181,
217 (1986-87).
3. Our concern in this essay is with the speech and press clauses, rather than
the religion clauses of the first amendment.
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Practical Reason and the First Amendment
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