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47 Ind. L.J. 1 (1971-1972)
Neutral Principles and Some First Amendment Problems

handle is hein.journals/indana47 and id is 7 raw text is: INDIANA LAW JOURNAL Volume 47 FALL 1971 Number I NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT PROBLEMS* ROBERT H. BORK- A persistently disturbing aspect of constitutional law is its lack of theory, a lack which is manifest not merely in the work of the courts but in the public, professional and even scholarly discussion of the topic. The result, of course, is that courts are without effective criteria and, therefore we have come to expect that the nature of the Constitution will change, often quite dramatically, as the personnel of the Supreme Court changes. In the present state of affairs that expectation is inevitable, but it is never- theless deplorable. The remarks that follow do not, of course, offer a general theory of constitutional law. They are more properly viewed as ranging shots, an attempt to establish the necessity for theory and to take the argument of how constitutional doctrine should be evolved by courts a step or two farther. The first section centers upon the implications of Professor Wechsler's concept of neutral principles, and the second attempts to apply those implications to some important and much-debated problems in the interpretation of the first amendment. The style is informal since these remarks were originally lectures and I have not thought it worthwhile to convert these speculations and arguments into a heavily researched, balanced and thorough presentation, for that would result in a book. THE SUPREME COURT AND THE DEMAND FOR PRINCIPLE The subject of the lengthy and often acrimonious debate about the proper role of the Supreme Court under the Constitution is one that pre- occupies many people these days: when is authority legitimate? I find it convenient to discuss that question in the context of the Warren Court and its works simply because the Warren Court posed the issue in acute form. The issue did not disappear along with the era of the Warren Court * The text of this article was delivered in the Spring of 1971 by Professor Bork at the Indiana University School of Law as part of the Addison C. Harriss lecture series. t Professor of Law, Yale Lawv School.

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