Freedom and Federalism: The First Amendment's Protection of Legislative Voting

Abstract

The ideal of popular sovereignty inspired the creation of the American Republic.2 In an ideal republican government, elected representatives express and implement the people's will through legislative speech and activities. However, an elected legislator's ability to perform these representative functions depends largely upon her ability to speak freely and to make independent choices. In short, republican government requires legislative independence.3 It follows that constraints on independent legislative speech or voting undermine the legislature's representative function. As an institutional approximation of the republican ideal, the American constitutional system depends upon legislative independence for sustenance and legitimacy. American legislatures, the political institutions most responsive to the public due to regular and frequent elections, supposedly infuse the people's will into the machinery of government. As institutions designed to facilitate decision through debate, legislatures channel rich public debate into effective democratic self-government. As a result, more than any other institution of republican government, legislatures thrive when debate inside their walls is