In a series of remarkable forays, Robert Post develops an
original account of how law functions in a democratic society. His
work offers a radically new perspective on some of the most
pressing constitutional issues of our day, such as the regulation
of racist speech, pornography, and privacy.
Drawing on work in sociology, philosophy, and political theory,
Post demonstrates that the law establishes distinct and competing
forms of social order: democracy, in which the law embodies the
possibilities of collective self-determination; community, in which
the law articulates and enforces a common social identity; and
management, in which the law creates the conditions for
accomplishing specific goals. Debates over the boundaries between
these distinct domains, Post argues, are central to some of the
most intractable problems of modern constitutional law. Here we
see, for instance, how the controversy over the regulation of
racist speech negotiates the boundary between communitarian and
democratic forms of social ordering. We see how public forum
doctrine, a crucial but notoriously mysterious component of First
Amendment jurisprudence, arbitrates distinctions between the social
domains of democracy and management. Taking up specific court
cases, such as that against Hustler magazine and that allowing
prayers before state legislatures, Post shows us what is actually
at stake in these constitutional struggles.
A highly complex and sophisticated account of the operation of
constitutional law in modern society, "Constitutional Domains" is
essential reading for lawyers, social theorists, and makers of
public policy.
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