l activities, this did not occur immediately, as much due to conceptual difficulties as to ideological resistance. Early iterations of a right to
to be let alone seemed to involve both the notion that certain information should be
private and the idea that certain personal
activities should only be lightly regulated. Then, for a time, the privacy cases appeared to be limited to certain areas of personal concern: marriage, procreation, contraception, family relationships, medical decision making and child rearing. Most recently, however, the Court has brought the outer limits of the doctrine into question again by overturning a sodomy law directed at homosexuals without attempting to show that such behavior was in fact historically condoned. This raises the question as to what limiting principles remain available in evaluating future arguments based on personal autonomy.
Whereas much of the Bill of Rights is directed toward prescribing the process of how governments may permissibly deprive one of life, liberty, or property – for example by judgment of a jury of one's peers or with evidence seized through reasonable searches – the First Amendment is by its terms both substantive and absolute. While the application of the First Amendment has never been presumed to be so absolute, the effect has often been indistinguishable. Thus, the trend over the years has been to withdraw more and more speech and
speech-plus from the regulatory and prohibitive hand of government and to free not only speech directed to political ends but speech that is totally unrelated to any political purpose.
The constitutionalization of the law of defamation, narrowing the possibility of recovery for damage caused by libelous and slanderous criticism of public officials, political candidates, and public figures, epitomizes this trend. In addition, the government's right to proscribe the advocacy of violence or unlawful activity has become more restricted. Obscenity abstractly remains outside the protective confines of the First Amendment, but the Court's changing definitional approach to what may be constitutionally denominated obscenity has closely confined most governmental action taken against the verbal and pictorial representation of matters dealing with sex. Commercial speech, long the outcast of the First Amendment, now enjoys a protected if subordinate place in free speech jurisprudence. Freedom to picket, to broadcast leaflets, and to engage in physical activity representative of one's political, social, economic, or other views, enjoys wide though not unlimited protection. False statements, long derided as being of little First Amendment value, were brought within the ambit of free speech, although the standard of protection afforded to such a law – here, lying about one's military record – remains unsettled.
While First Amendment doctrine remains sensitive to the make-up of the Court, the trend for many years has been a substantial though uneven expansion. In particular, the association of the right to spend for political purposes with the right to associate together for political activity has meant that much governmental regulation of campaign finance and of limitations upon the political activities of citizens and public employees had become suspect if not impermissible. For example, during the last decade, confronted with renewed attempts by Congress to level the playing field between differing voices with disparate economic resources, the Court first accepted, and then rejected these new regulations. In the process, corporations, long barred from direct political advocacy, were given even greater access to the political arena.
Unremarked by scholars of some sixty years ago was the place of the equal protection clause in constitutional jurisprudence – simply because at that time Holmes' pithy characterization of it as a
last resort argument was generally true. Subsequently, however, especially during the Warren era, equal protection litigation occupied a position of almost predominant character in each Term's output. The rational basis s