The "power of precedent, when analyzed, is the power of the beaten track."– Benjamin Cardozo2
Though most of us are familiar with Robert Frost's "The Road Not Taken," it is actually the last three lines that are etched in our memory (Two roads diverged in a wood, and I / I took the one less traveled by / And that has made all the difference).
Those of us interested in law, however, really ought to pay closer attention to the first 15 lines, particularly as we increasingly come to think about law and precedent in a path dependent way.3
Two roads diverged in a yellow wood, And sorry I could not travel both And be one traveler, long I stood And looked down one as far as I could To where it bent in the undergrowth; Then took the other, as just as fair, And having perhaps the better claim, Because it was grassy and wanted wear; Though as for that the passing there Had worn them really about the same, And both that morning equally lay In leaves no step had trodden black. Oh, I kept the first for another day ! Yet knowing how way leads on to way, I doubted if I should ever come back...4
We think a great deal about the path that was taken, about the path that was followed, and almost never about the path not taken. A few brave souls do (none more powerfully than Charles Black in A New Birth of Freedom), but most of us, like Frost, "knowing how way leads on to way" pretty much never come back to that key turning moment.
Most of us, most of the time, are engaged in thinking about the next choice, the next fork in the doctrinal road, and thus most of the essays for this conference are (quite rightly) examining where First Amendment doctrine is headed, or where, alternatively, it should be headed.
But I want to pause a moment, and go back to that "yellow wood" and think about the path not taken – which, in this case, is the path of what might be called the First Amendment as a positive right. "Is the First Amendment merely the right to speak, and think and write – or is it, as well, the right to refuse to speak, and think and write." Might we think about the First Amendment as a far more robust guarantee of privacy and autonomy?
Indeed, not only can we do so now, but there were a few key moments when we might have done so before – and that might "have made all the difference."
The moment I have in mind, the moment at which the path-choice was faced, and a decision made, came early in the tenure of Chief Justice Earl Warren. Facing increasingly aggressive investigating committees of Congress, exercising their powers of subpoena and contempt, the early Warren Court addressed the question of what might be the limits to these powers – powers that are nowhere explicitly mentioned in the Constitution yet which have been exercised quite aggressively since the early 1800s.
When it comes to the question of the investigation powers of Congress, Martin Shapiro notes that the Court "failed as a political scientist" meaning it "failed to arrive at a realistic vision of the nature and function of a specific political institution" and we should hardly be surprised that the Court therefore "failed in its attempt to gain some control over that institution."5 Shapiro's was a contemporary argument for the Court to abandon a line of precedent that was ill-conceived and poorly designed to allow it to perform a vital function as a check on a runaway element of a co-equal branch. The Court, Shapiro argued, faced a hopeless task if it insisted on coloring within the lines of the existing precedent, of staying on a poorly designed path. But that's precisely what the Court did. One can make a powerful and convincing case that, given the circumstances and the degree to which the Court was involved in an increasingly acrimonious relationship...