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This introductory chapter sets out the book's main theme—the nature and process of freedom of speech within the course of campaigns and elections, or what is referred to as the constitution of electoral speech law. It argues that electoral speech is unique because of its situation within and impact upon the electoral process, necessarily requiring consideration of the customs, values, and inclinations associated with the maintenance of democratic forms, institutions, and practices themselves. An overview of the subsequent chapters is also presented.

This chapter examines the techniques, tactics, devices, and schemes that have the potential to constitute the manner means by which the justices “see” the speech question before them. What the members of the Court “have in mind” is especially important in that such contours influence their decisions. The chapter begins by discussing the general significance of the role of imagery in argument and develops the claim that the particular and literal “vision” of the case is critical to its ultimate resolution. It considers evident preferences for certain dimensions of electoral expression and the role for persuasion in the constitution of electoral speech law. Finally, the chapter turns to the role of and for perception, but specifically the significance of “schemata,” or those categories of the mind which represent an individual's “complex set of beliefs and feelings about some area of experience”.

This chapter focuses on two concepts that figure most prominently in the constitution of electoral speech law: “electoral superintendence” and the “marketplace of ideas.” It shows that “electoral superintendence” represents the general supervisory capacity the U.S. Supreme Court has assumed in electoral process cases since about World War II, while the concept of a “marketplace of ideas” has developed from Justice Oliver Wendell Holmes's famous contemplation of the potential for “free trade in ideas” to serve as the vehicle for evaluating competing claims and ultimately realizing the social good in the realm of expression. The chapter begins with an exploration of the essence and evolution of “superintendence,” as this notion encapsulates the Court's involvement in the organization of American politics.

This chapter considers the future of electoral speech law in three respects: (a) its evaluation by the justices presently on the Court; (b) its expansion and growth as a domain; and (c) its extension deeper and wider into existing dimensions of speech questions covered throughout this book. Constitutions, of course, err on the side of “great outlines,”, and the chapter considers how the received outlines of the electoral speech “constitution” of today might bear on the electoral expression debates of tomorrow.

This chapter focuses on the means by which rhetorical modes of argument and analysis facilitate the articulation of the constitution of electoral speech law. Assuming that arguments do, in fact, matter, whether they convey sincere sentiments or strategic sentiments (or more likely some combination of the two), it is essential to examine as well how this domain is constituted. Attention to rhetorical data is critical to this study because such materials can “serve as a gateway” to a more sophisticated understanding of the nature of Supreme Court decision making and the composition of Court rulings. In surveying these predominant modes the chapter examines appeals to historical materials; inclinations toward empirical data; and in a manner particular to this body of law, democratic dispositions of both an aspirational and precautionary nature, revealing important impressions of and inclinations toward the possibilities of political life.