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“One Nation Indivisible”: Unnamed Human Rights in the States, 65 ST. JOHN’S L. REV. 17 (1991)


In the United States, the right to free expression, if it is to
be enjoyed in the real world, has to be guarded (like all American
human rights) within the structure of federalism-of the coexistence,
in as good as every square foot of the country, of two
governments, the national government and the government of
some State. Free expression might be guaranteed in the most
absolute and efficient way against infringement by national
law-and still, if there were no national guarantee of free expression
against action by the States, you might live all your
years in dread of going to prison for publishing or even owning a
book dealing favorably with Socialism. The nation would not in
practical truth be a free nation. There is no advantage, believe
me, in going to a state prison rather than to a national prison.

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