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
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 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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