June 24, 2011

The irony of Breyer's Sorrell dissent

By The irony of Breyer's Sorrell dissent

Author: Timothy Sandefur

Prof. David Bernstein makes an excellent point about Justice Breyer's dissent in Sorrell:

Breyer cites Holmes’s Lochner dissent for the proposition that when the USSC reviews economic regulations, it resulted “in the constitutionalization of economic theories preferred by individual jurists.” But the idea, adopted by Breyer, that the core of the First Amendment is about the marketplace of ideas and enhancing democracy, and therefore does not include commercial speech, is itself a judicial construct, based on the political theories preferred by Chafee, Holmes, Brandeis and other Progressives–and undoubtedly Breyer himself.

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Update: On a related note, Trevor Burrus explains why one generation of Oliver Wendell Holmes, Jr., is enough.

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