Crying Wolf: Neo-Patriots, Critical Race Theory, and the Constitutional Protection of Dangerous Ideas

Most Americans do not realize that, notwithstanding the First Amendment\u27s free speech guarantee, for most of our nation\u27s history, judges sent men and women to prison for expressing ideas considered too dangerous. It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the advocacy of ideas has been presumptively unconstitutional. In recent months, however, a number of state and federal measures have aimed to ban discussion of so-called divisive concepts, including Critical Race Theory ( CRT ) in public schools and workplaces. Others target books, such as The 1619 Project, or the use of selected curricular materialsf rom groups,f or example, like the Southern Poverty Law Center\u27s Learning for Justice Project. Still others target anti-racist diversity, equity, and inclusion trainings for government employees. Such materials and trainings have been declared anti-American, dangerous, hateful, or even racist by neo-patriots, persons in and outside government who seek to use the law to ban the expression of ideas they find objectionable. Remarkably, without any discussion of core First Amendment doctrine, what CRT is, or what critical race theorists have written, governments have once again responded to public pressure and declared some ideas and materials too dangerous and sought to punish some speakers. Recalling similar periods of viewpoint censorship during the last century, this essay examines the constitutional implications of bans on CRT, The 1619 Project, and other materials, and provides a constitutional roadmap for challenging such bans on First and Fourteenth Amendment grounds

Federalism by Deception: The Implied Limits on Congressional Power

The purpose of this Article is to lay bare federalism by deception and the theory of implied limits on federal power. Other scholars have recently noted the rise of anti-federalist viewpoints in modern cases. I go a step further to demonstrate how Supreme Court Justices have embraced anti-federal ideology, but have cited Federalist sources, including Marshall, to announce unenumerated limits on federal legislative power