Law and Public Policy

D16(a) - American Constitutionalism

Date: Jun 14 | Time: 08:30am to 10:00am | Location: 680 Sherbrooke St. West 495

Chair/Président/Présidente : Mark Rush (Washington and Lee University)

Discussant/Commentateur/Commentatrice : Dennis Baker (University of Guelph)

Judicial Stare Decisis v. Legislative Rigor Mortis: The U.S. Supreme Court Precipitates a Constitutional Paradigm Crisis: Mark Rush (Washington and Lee University)
Abstract: In this article, I draw upon several recent free speech decisions by the US Supreme Court to demonstrate that, the court is preventing legislatures from addressing new challenges posed by technologically-enhanced speech. In so doing, the court is precipitating a constitutional paradigm crisis akin to what Thomas Kuhn described in The Structure of Scientific Revolutions. In requiring Congress and state legislatures to abide by “long-standing traditions” when restricting harmful speech, the court renders them unable and ill-equipped to address challenges and harm posed by technologically enhanced speech. I focus principally on U.S. v. Stevens and Brown v. Entertainment Merchants Association to demonstrate the Roberts court’s backwards-facing approach to harmful speech. I then contrast these cases with other case law in which SCOTUS has embraced technological change (or changes caused by other constitutionally-exogenous phenomena such as wealth, industrialization, or demographic change) and allowed the elective branches to legislate in a forward-looking manner in response to new social challenges. My conclusion is speculative and tentative. Insofar as the constitutionally-exogenous phenomena that I discuss are transforming the social structure in which courts, legislatures, and democracy operate, I argue that courts must allow legislatures to take risks in exploring new measures to protect the general welfare even if they impinge upon prevailing notions of constitutional rights. Constitutionalism and democracy must evolve to meet new challenges with appropriate—not out-of-date—measures.

Recent Trends in the Regulation of Academic Speech in American Higher Ed: Jeffrey Sachs (Acadia University, Senior Researcher for PEN America)
Abstract: Since January 2021, just over 100 educational gag orders -- state-level bills or executive orders restricting academic speech in higher education -- have been introduced in the United States. Few of these bills have become law and fewer still have had their intended effect, but supporters of these restrictions are undeterred. In 2023, they adopted a new legislative strategy focused on eroding the "academic freedom support network" that sustains academic freedom when it is under attack -- that is, faculty unions, accreditation bodies, and institutions of shared governance. Drawing on an original dataset of legislation as well as interviews, this paper examines that strategy and evaluates its prospects for success.