The Roberts Court is Off The Rails
Ordinary Americans are, by and large, pragmatists about legal matters. They tend to favor legal outcomes that deftly balance competing considerations. Outcomes that achieve this balance do not do a disservice to broad swaths of people but instead aim to enhance or at the minimum preserve meaningful social policies. Pragmatism about law, in other words, is really a product of thinking clearly about what the law is for: the law serves the American people, not the other way around.
Unfortunately, the currently constituted Supreme Court, led by that fearless foe of pragmatism, John G. Roberts, does not care that most Americans loathe the notion that judges ought to carry out their duties without the interests of the citizenry in mind. Constitutional law, as Roberts himself is keen to emphasize, has nothing to do with sound public policy and should not be tempered by any moral or social concerns, however relevant they may seem to the electorate. Constitutional law is a free-floating, self-sustaining set of rules that answers to no one, not even the American public.
Think about how dangerous Roberts’ anti-pragmatism and deep hostility toward common sense really is. Consider a case recently handed down by the Roberts’ Court, Citizens United, which addressed whether campaign finance laws that restrict corporations’ ability to support political candidates are constitutionally valid. In Citizens United, the Court, led by Roberts, held that “government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
First, note the dirty jurisprudential move being made here: Justice Kennedy’s majority opinion has placed nonprofits and for-profit companies on the same footing, as if it were plausible to think that nonprofits and for-profit companies care about campaign finance in the same way and for the same reason. They do not, as nonprofits have less money to give and ordinarily benefit from stronger campaign finance laws because such regulations ensure that large corporations find it harder to buy political favors.
Second, think about how the issue has been framed. The Roberts Court has insisted, rather comically, that this is about “free speech,” rather than the government’s legitimate interest in ensuring that political contests have an acceptable legitimacy quotient. This is a bold step by the Court, and one that belies the common view that political contests are influenced to an unreasonable extent by who the largest, best-heeled corporations want to serve in our government’s highest and most important political offices.
Third, the U.S. Congress has since 1890 been quite aware that Americans deeply feel that corporations should not be granted the same speech privileges that individuals clearly have under the Constitution, and have passed a bevy of laws (Tillman Act of 1907, Taft-Hartley Act of 1947, Bipartisan Campaign Reform Act of 2002) to reduce the impact of corporate money on political contests. Citizens United, of course, washes away this entire tradition in one fell swoop. Under this decision:
- the 62-year old Taft-Hartley restrictions on corporate expenditures are no longer valid;
- the Tillman Act of 1907’s ban on direct corporate contributions to political candidates is no longer enforceable; and
- at least 24 state laws relating to campaign finance have been summarily invalidated.
For constitutional litigators and constitutional scholars alike, the Roberts Court ruling is a clear fail, as the Supreme Court has been making distinctions based on the identity of a speaking for ages when adjudicating First Amendment concerns. The Court has in the past regulated the speech of (i) students, (ii) virulent racists, (iii) members of the Armed Forces, (iv) government employees, and (v) those who would threaten the President with bodily harm.
But the deeper problem is that the Roberts Court is unremittingly hostile to the responsibility it has to serve the American public as it interprets the Constitution. It has done so by adopting an indefensible conception of “speech” that the American public clearly rejects. One can only hope that Congress is willing to challenge decisions like Citizen United, decisions that are deeply anti-pragmatist and chafe against the healthy, realistic conception of speech embedded in our Constitution and political traditions.
No related posts.
Mr. Eden,
You make the bold, but believable claim that “Ordinary Americans are, by and large, pragmatists about legal matters.” I can maybe roll with you on that. But your idea resets on an assumption about the purpose of law in society, namely, the idea that the any legal judgment might be based on time-specific prevailing attitudes.
The problem with that assumption is that it is fundamentally inconsistent with the purpose of our legal system, which is designed to consider if the prevailing attitudes of many conflict with those protected minorities. In this case, the poor little guys are just your sweet and tender… corporations. (That’s either a Chinese hooker or a wonderful Thai dish). Your further lemma, that “pragmatism about law, in other words, is really a product of thinking clearly about what the law is for,” is far too broad a statement to be meaningful. How you determine “what the law is for?”" How do you identify those who practice sound methodology and operate without pretense? The answer is, no. Because the “purpose of the law” is exactly what the law is designed to protect against.
One of the major advantages of a limited, and not total, democratic process is stability. The value of stability is in the trust that individuals (including corporations) as well as foreign trading partners place in the US when doing business. Unlike the rest of the world, the United States has been able to avoid many of the tragedies and confrontations of this century, which I feel has been clogged with both great and horrible ideas. The US was not immune to the bad idea syndrome – we had a healthy number of communists, anarchists, White supremacists, and other such cooks, and generally did not place great restrictions on their speech. The Weimar German republic was not-not immune, and in fact reaped the rewards of rapid democracy when the National Socialist party won a couple of seats by chance. In America, Hitler does not gain such unwavering power. I would like to think that Americans would be less susceptible to that time of extreme argument anyway, but that’s probably just my bias.
In America, Hitler could possibly gain support with people are willing to place blind and irrational faith, such as the ones who believe that 144,000 horsemen will descend upon the Earth some time in the near future and destroy the gamblers and non-believers while rewarding the likes of Mr. Ted Haggard. You’d have to reasonably think that if Americans can place blind faith into a guy who looks like the carnie from Sham-Wow, you’re going to have a lot of them who would be down with murdering millions of innocent people.
The “winner takes all” nature of our democracy guarantees that the kooks, if ever too numbered in population, cannot twist the arm of the legislature (or disregard the process) in order to please an angry majority. Although this does occur, the court is empowered to review particularly egregious examples. A law that prevents the use of federally taxed income or revenue to project a message, over any publishing medium, should be obviously unconstitutional. The freedom of speech has historically encompassed the idea that speech or writing should not be restricted unless it represents some sort of “clear and present danger” as it traditionally cited.
The argument that corporate spending meets these requirements is based on the misguided principle that candidates who win seats thanks in part to these donations would be unfairly favored against a less-funded candidate who does not enjoy such support. While intuitive, it is also not necessarily true. For example, a candidate who has a favorable reputation in the market is more likely to increase investor confidence, spending, investment, and ultimately jobs. A candidate who is likely to reduce taxes for corporate spending, and somehow gets elected, will do as he promises. If the voters don’t like it, they will not re-up and probably would have a sour taste with a candidate who is openly a lackey (ok, a bitch) of corporate interests.
I think that there should be a follow up to this decision, as the current state of affairs is not exactly right. Congress can push through a law that allows for donations of any amount with the caveat that at least two distinct corporate donors, as well as the usual stuff, should be posted throughout the entire ad. For example, instead of “Paid for by John Schmuck for Congress,” it would be “Paid for by Kellogs, Haliburton Corporation, and Sarah Palin for US Senate.” In addition, one company name must be read before the commercial begins. I think that this is a good compromise, a pragmatic one as well, that allows for humiliation of whoever uses corporate money (and trust me, everyone still will) and lets the viewer know of the dirty, dirty capitalist money the corporation is sending back.
Comment on March 16, 2010 @ 1:49 am
Justin,
You’re a lovely writer, but you haven’t really grappled with the general jurisprudential issue (whether the law serves the American people) or the specific issue I wrote about (whether the Citizens United decision makes any sense in light of our Constitution and political traditions around campaign finance).
I stand by my claim that our Constitution, along with the interpretive traditions that have sprung up around that document, serves the American people and not the other way around. The Constitution is not an edict from God that exists is some perfect netherworld, and most constitutional scholars would surely agree that the plasticity of constitutional law bears this out.
You also made a few really glaring mistakes in making specific sub-arguments:
1. We do not have a winner takes all system. Constitutional law is designed to protect minorities so that majorities, as represented by Congress, cannot enact laws that the “winners” deem useful or necessary where those laws violate basic rights and protections.
2. We certainly regulate a MUCH wider range of speech than your post recognizes. Restricting what corporations can do in the context of supporting candidates is a rather tame species of speech regulation when one keeps in full view all of the things that the federal government regulates (symbolic speech (cross burning), speech of government employees, etc.). Moreover, you are in the minority historically – Congress for over 100 years has deemed your view anathema, so the onus rests on you, in my mind, to rebut that sensible view.
3. Your argument that a candidate supported by large corporations will have a beneficial “trickle down” impact on the larger economy is, well, I just don’t know what to say. It’s absurd to think that the most important political offices should be determined by corporations who will then expect their golden children to enact laws and policies that serve the interests of those corporations. What has recently happened with Wall Street is but one example of what is wrong with your view. (In that case we had a “trickle up” effect: gains were privatized, risks were socialized.)
Regards,
John
Comment on March 17, 2010 @ 11:16 am