Issue #23, Winter 2012  The Roberts Court v. America   These
changes in the First Amendment’s meaning track larger changes in
the political and intellectual tone of the time. They put new
intellectual premises to work in constitutional law, premises
that themselves form no part of the Constitution. For one, this
neo-Lochner-ism takes plausibility from the background idea that
the distinction between politics and markets, or principles and
interests, is spurious: A democratically adopted policy is just
the aggregation of some people’s interests, and a company’s
economic interests make as worthy a basis for political argument
as any principle. For another, there is no publicly acceptable
measure of value except what people say they want and are
willing to pay for: preferences, that is, backed by cash. Any
attempt to establish an independent standard, such as fairness
or cultural excellence, is elitist, parochial, or a try at petty
tyranny. For a third, markets are the best way by far of
capturing and maximizing