Failed Constitutional Metaphors: The Wall of Separation and the Penumbra

Louis J. Sirico, Jr. *

Metaphors are common devices in judicial opinions. Courts often find them useful in explaining the law and its application. And in recent years, metaphors have sparked an increased interest among legal scholars who are concerned with the metaphor’s role in advocacy and judicial opinion writing. Although courts use metaphors to explain the law, they also use metaphors for a more significant purpose: they use them to create the meaning of the law. For example, when courts use the metaphor “the marketplace of ideas” with respect to the First Amendment’s guarantee of freedom of expression, we understand that freedom of expression was meant to take place in a forum resembling a laissez-faire market. Further, in this environment the best arguments should win out. As Justice John Paul Stevens wrote, “But the First Amendment does guarantee an open marketplace for ideas—where divergent points of view can freely compete for the attention of those in power and of those to whom the powerful must account.” Thus, because the constitutional amendment now promises a marketplace of ideas, freedom of expression furthers essential societal goals and enjoys considerable protection.

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*   Professor of Law, Villanova University School of Law. I wish to thank my research assistant at Villanova Law School, Kathryn Mellinger. Thanks also go to Professors Julie Oseid and Chris Rideout for taking the time to review my manuscript.