There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. Both were devoted to the rule of law, and each feared that the Court would create ad hoc exemptions for those exercising First Amendment rights.
Although Justice Scalia's First Amendment opinions show a determined search for rules and a willingness to take a close reading of precedent and history, Justice Scalia has made no effort to deal directly with the text of the First Amendment or to locate it within the larger structure of the Constitution. Justice Scalia has not done for the First Amendment what he has done for separation of powers, federalism or statutory construction. Similarly, Justice Jackson worked very hard at theory, although he never demonstrated Justice Scalia's preoccupation with the text. Justice Jackson, like Justice Scalia, never attempted to offer a broad vision of the First Amendment in the same way that he did for separation of powers or federalism.
Despite this dearth of textual exposition and theory from two of the our most driven justices, this Article suggests that there is a theory of the First Amendment, based on a close reading of its text and its place in the larger structure of the Constitution, that brings together the First Amendment approaches of both Justices. The “power theory” recognizes that the First Amendment bears a distinct form over the remainder of the Bill of Rights. When viewed against the disabilities in Article I, Section 9—where James Madison thought most of the Bill of Rights belonged—the First Amendment emerges as a powerful, but limited, constraint on legislation. As restated in this Article, the “power theory” of the First Amendment is more faithful to the text and structure of the Constitution and both narrower and more profound than our current conception of the First Amendment.
75 Tul. L. Rev. 251 (2000).
Bybee, Jay S., "Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment" (2000). Scholarly Works. 358.