<i>lawmakers don't have much to do with it</i><p>Traditionally they don't, but they could if they wanted to.  If the Supreme Court rules that something is not legal, the legislature can make it legal.  The Constitution can also be amended, making the issue of constitutionality null.<p>Some of the most powerful Constitutional protection is in the form of amendments; the Bill of Rights.  Technically, the freedom of speech is implicit in the text of the main body of the Constitution.  (Any powers not specifically given to the Federal government falls to the States and People.)  But the explicit text of the First Amendment has made it much easier for the People to retain their right to Free speech and press.