In 1943, in what would become one of the most famous opinions in the First Amendment canon, Justice Robert H. Jackson described the difficult task that courts faced when asked to apply the federal constitution’s rights guarantees to a world radically transformed from the one the Framers had encountered. The profound economic, social and political changes of the intervening hundred and fifty years, Jackson wrote in West Virginia State Board of Education v. Barnette, meant that courts had to make legal principles developed at a time when the dominant view was that individual “liberty was attainable through mere absence of governmental restraints” make sense in a society “in which the laissez-faire … principle of noninterference ha[d] withered,” and “social advancements are increasingly sought… through expanded and strengthened governmental controls.” Changed conditions meant, in other words, that courts had to interpret the freedoms guaranteed by the first ten amendments in a manner that was consistent with the operation of the modern regulatory state then just coming into being. This was a challenging task; challenging enough, Jackson noted, “to disturb [the] self-confidence” (even the self-confidence of a Supreme Court justice, evidently). But it was not something that he believed could be avoided. The rest of the justices on the Supreme Court apparently agreed.

Read more at Federal Funding and the First Amendment, Knight First Amendment Institute