Published online by Cambridge University Press: 02 August 2019
If we genuinely believe that the First Amendment exists to facilitate the process of democratic self-government, then the federal courts need to consider more carefully and more reliably the government’s duty to use public resources to support expressive activities related to democratic discourse. The Warren Court understood that equal citizenship required more than simply observing a rule of “one person, one vote” – although the Constitution certainly requires observation of this fundamental principle of political equality in designing electoral districts and conducting elections.1 The Warren Court consistently worked to deploy the First Amendment as a tool to create and support opportunities for democratic engagement within the body politic; it did not simply embrace a laissez faire free market approach to allocating the practical ability to exercise expressive freedoms.
The Warren Court repeatedly used the First Amendment as a source of affirmative, or positive, obligations on the government to facilitate, rather than impede, the exercise of expressive freedoms by ordinary citizens. The Burger Court failed to advance this jurisprudential agenda – but refrained from squarely overruling the Warren Court’s jurisprudential and doctrinal innovations. The Rehnquist and Roberts Courts, for the most part, have resiled from this project entirely.