Supreme Court

"The Court's ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy"

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Institute for Justice attorney Paul Sherman has a great post up at National Review's Bench Memos blog explaining why today's Citizens United decision was such an important free speech victory:

The ruling represents a tremendous victory for free speech and a serious blow to proponents of campaign-finance "reform," who have roundly denounced the ruling and have all but predicted the downfall of the Republic as a result. But the reformers' rhetoric is just that; the Court's ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy….

When you hear reformers howl about the downfall of elections as a result of this ruling, consider that states like Missouri, Utah, and Virginia already allow corporations to spend unlimited amounts on political ads, and there's no evidence that these states' elections have been "corrupted" or "overwhelmed" by this additional political speech. And that is not surprising. After all, no matter how much money is spent to promote or oppose candidates, voters remain free to disagree with those views. And they often do, as well-financed but failed candidates Ross Perot, Steve Forbes, Mitt Romney, and, more recently, Jon Corzine can attest.

Read the whole thing here. And while you're at it, check out page 54 of Justice Kennedy's majority opinion in Citizens United, which favorably cites IJ's excellent friend of the court brief.

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  1. The real story is the judicial activism of Roberts, Alito, Scaleia, and Token – overturning a McCain law he worked so hard to put in front of Bush to sign.

    1. The obvious lesson is for people to stop bad-mouthing judicial activism as such. If judges can never “legislate from the bench,” then we have no safety from the tyranny of the majority.

      1. But its one of the 3-4 great lines of bullshit conservatives feed to their open-mouthed guppies.

        Along with

        “they won’t let us drill here”

        “they comin’ to git mah guns”

        and

        “this is a Christian nation”.

        1. Free speech is sometimes scary speech.

          1. Especially when misspelled by Tea-gurgglers.

            1. Stay away from my guns, freak. You won’t hear the chamber close before the report.

        2. You are half a piece of shit, shrike.

      2. The obvious lesson is for people to stop bad-mouthing judicial activism as such. If judges can never “legislate from the bench,” then we have no safety from the tyranny of the majority.

        Except that this isn’t “judicial activism,” according Black’s Law Dictionary or any other source. The obvious lesson is for people to stop trying to redefine a term, or else just stop using the term.

        1. Overturning decades of Congressional will in a dramatic way that is justified only by a dubious reading of the constitution isn’t judicial activism? I’d say that’s the definition of it.

          1. Overturning decades of Congressional will in a dramatic way that is justified only by a dubious reading of the constitution isn’t judicial activism? I’d say that’s the definition of it.

            Yes, but you’re ignorant. The term has absolutely nothing to do with Congressional will, despite what some also ignorant conservatives say.

            Or at least that’s the way it used to mean, and most law dictionaries still have it. But then people started (some intentionally) muddling the term.

          2. Well, more to the point, there is no decades of “Congressional will” either.

          3. Moreover there is nothing dubious about reading “Congress shall make no law” to mean that congress shall make no law.

            1. Exactly Escaped. The “dubious” readings of the constitution was allowing the stifling of free speech for 100 years.

              1. Oh please. You people aren’t even pretending not to be corporate whores anymore.

                Those poor corporations, they just can’t get a word in edgewise!

                1. Build your next car, Tony. From the ground up.

                  Oh, you want GM, Chrysler, or Ford to build it for you? But, but… those are corporations, no?

                  1. I recently saw some kind of very strident anti-capitalist/anti-corporate bumper sticker. On a Ford.

                    Alas, it wasn’t a Ford Cognitive Dissonance.

        2. Well, it comes to this:

          If the decision is one I like, then it is not judicial activism. If instead I don’t like the decision, then it is judicial activism.

          Never mind if the decision is consistent with the letter of the constitution.

          1. Yes, it has come to that. Same sort of thing that has mean that libertarians can’t have the word “liberal” any more.

            Personally, it makes me feel like ruining the term “pro-choice” by using it for vouchers and everything else.

            1. “Personally, it makes me feel like ruining the term “pro-choice” by using it for vouchers and everything else.”

              Excellent idea, at least when talking to liberals.

          2. If it were easy to figure out what the constitution requires we wouldn’t need a supreme court.

            You’re just substituting your own preferred interpretation of the constitution for others’ and calling anything that disagrees with it activism.

            1. Re: Tony,

              If it were easy to figure out what the constitution requires we wouldn’t need a supreme court.

              Don’t be disingenuous – the Courts are not sage priests to “interpret” the Constitution. They are there to make sure the newly minted laws do not overstep the limits imposed by the Constitution or trample on people’s rights – it is easy for an overeager Congress to do either or both.

      3. The real lesson is to apply the correct definition of “activism”, the one universally used everywhere else in political discussion. That is, the one specifically intended by those who honestly oppose it, instead of the definition used by members of the left when they want to scream “Hypocrisy!”

        “Judical activism” does not mean “action by judges”, it means “efforts to enact leftist policies by judges”, just like “student activism” means “efforts to enact leftist policies by students”.

        Accordingly, overturning a leftist policy through the courts isn’t judicial activism, it is an anti-activist judicial ruling. Because the activists, in the normally-used definition, are all in favor of campaign finance reform.

    2. Sotomayor voted against this decision, didn’t she?

      1. oh my bad. wrong token.

        1. ……….

    3. It is not judicial activism to enforce the constitution as written and apply a consistent rule of law. By your logic, it would be judicial activism to over turn any act of Congress no matter how grotesque. Judicial activism is where, rather than applying a consistent rule of law, the court decides what the outcome of the case should be based on its own values and then tortures the law to produce that outcome.

      1. Thanks to John for saving me the time from typing the same thing.

      2. The court made obsolete many of its own decisions on campaign finance. As they are by definition the arbiters of what is and isn’t constitutional, this ruling is the essence of judicial activism, as it goes completely against both congressional will and court precedent.

        1. So Tony, once a decision is made, any overruling of that decision is judicial activism regardless of the content or value of the original decision? Yeah, that makes sense.

          1. Actually, I think the term “judicial activism” is fairly meaningless. Most of the time it’s a phrase Republicans use when the court rules in a way they don’t like. But it’s simple enough to point out that when the court is “activist” according to their own definition of the term, but rule in a way they like, they tend to hold off on their crusade.

            1. Actually, I think the term “judicial activism” is fairly meaningless. Most of the time it’s a phrase Republicans use when the court rules in a way they don’t like. But it’s simple enough to point out that when the court is “activist” according to their own definition of the term, but rule in a way they like, they tend to hold off on their crusade.

              Except that’s not the definition that most use. I admit that some do, but you also should admit that Democrats use the phrase “judicial activism” to mean anything that they don’t like, and that they started doing it in order to appropriate the term.

            2. Everywhere else in a political context, “activism” means left-wing political activity. “Civil rights activism”, “environmental activism”, “peace activism”, “student activism”, “gay rights activism”, “youth activism”, “animal rights activism”, “gun control activism” . . .

              So, why do you expect conservatives, speaking in a political context, to suddenly use “activism” to mean something other than “left-wing political activity”

        2. The court made obsolete many of its own decisions on campaign finance. As they are by definition the arbiters of what is and isn’t constitutional, this ruling is the essence of judicial activism, as it goes completely against both congressional will and court precedent.

          Thank god.

      3. constitution as written

        Except it wasn’t written that way – its your lurid fantasy.

        Its like ‘Kelo’ – which sucks – but “public use” is poorly defined.

        Ham-headed cons see Kelo as restricted to railroads – loosey-goosey liberals see Kelo as public “use………….”.

        Neither is correct – grow up – its poorly defined.

        So overturning McCain-Feingold is clearly judicial activism.

        1. There is nothing “poorly defined” about “public use” not applying to taking property for a private entity. Kelo was “judicial activism”.

          Further, you and Tony have this bizare idea that judicial activism means ‘breaking with precedent’, which is completely bizarre. By your logic, it is judicial activism to overrule the Japanese internment cases. Hey, in 1945 that was stare precedent wasn’t it?

          Scalia makes the argument that this is what the text says. You may not agree with that. You may think he is wrong. That makes it bad interpretation, not judicial activism.

          1. I have no problem with “judicial activism”.

            I actually hate the term in political use – it is flung around in public more than one of Rick Santorum’s dead fetuses.

            1. I actually hate the term in political use – it is flung around in public more than one of Rick Santorum’s dead fetuses.

              Yes, I agree with that. And in some part it’s been flung around by people who, like you, have no problem with the original definition, realized that the term itself could be made vague, realized that the term was popular, and set out to appropriate it for themselves.

              It’s the same thing you assholes did with “liberal.”

              1. Hey, I am a proud liberal like Jefferson and Hayek!

                I didn’t besmirch my own label!

                1. Jefferson and Hayek would be appalled with you, shrike. Good thing for you they’re dead.

                  1. +10 rep

        2. What is so loosely defined about “speech” amd “no law”?

          1. Well, it’s pretty clear that speech and money aren’t the same thing, so I’ll give you that.

            1. Yes, yes it is. That you can’t grasp these simple concepts is of no matter to me.

              Now, go away, troll.

            2. So you’d have no trouble with, say, a federal statute forbidding the New York Times Company (a New York corporation) from spending any money to urge the reelection of Barack Obama?

            3. So the 1st only applies to speech that costs nothing (i.e. verbal speech), but not when you buy a quill pen and some ink and parchment and write it down? Or hire Ben Franklin to print it?

    4. Racist.

      1. Yeah, I was noticing shriek’s casual racism. Way to go, shriek!

        1. I don’t like affirmative action.

          Token Thomas licked that salt for all its worth.

          1. Hmm, it’s more like you don’t like conservatives and lucidity. But call it affirmative action if you like.

            1. It is true that I don’t like conservatives.

              What does that have to do with ‘Stare decicis”? (trick question!)

              Hayek and Rand hated conservatives too. Big deal.

          2. Justice Thomas was easily more qualified than Justice Souter. I can grant that he was not an obvious choice, though neither were Souter, O’Connor, or many other justices.

            His opinions are well-written and uniformly interesting. Yes, he’s willing to consider doctrines that no one else will– see his separate concurrence in the recent FCC case where he opines that Red Lion and Pacifica should be overturned– but he’s certainly intelligent.

            I’ll take “extremist” applied to Justice Thomas, if you offer that.

            1. Good post.

              I know it was intended for me so I won’t be rude and ignore it.

              I liked Souter – not the point.

              And I don’t anything about the ‘Pacifica’ case – will Wiki it now.

              (Thacker is the most reasonable of the conservative leaners here)

              1. just Wiki’d – good one!

                Limitations on free speech on PUBLIC airwaves?

                Carlin too — my bias is for Carlin —- tough one!

                I have to think on this one.

          3. Hey, shrike, looks like you and I both hate Thomas.

            I wonder if his wife took my advice to increase his chances of early death via heart disease…

        2. If it’s bad for Thomas to be an affirmative action justice, what’s that mean for our president, who seems to have just that one qualification for office? At least Thomas is a legitimate constitutional scholar.

          1. The president was legitimately elected and this time by an actual majority of the people. No affirmative action involved. The only reason that term could possibly enter your head with regard to the president is because he’s black, you fucking racist.

            An affirmative action president might be defined as a semi-literate son of a former president who only got through school because of his family connections and who was later appointed to the office by the supreme court. That’s some affirmative action.

            1. The president was legitimately elected and this time by an actual majority of the people. No affirmative action involved.

              And Justice Thomas was legitimately nominated and approved, racist.

              Yeah, Justice Thomas was chosen in part because of his race, just as Justices Souter, O’Connor, and others were chosen for various qualities, and just as some people voted for (or against) Obama on behalf of his race.

              1. But as with their philosophy of governing (it’s pointless because government is useless), Republicans manage to prove themselves right on affirmative action by nominating someone only because of the color of his skin without regard to the fact that he’s ignorant and borderline psychotic.

                1. Ignorant and borderline psychotic? You know, those words mean things. Quite a few legal scholars think that Thomas is the best of the bunch, as far as legal reasoning goes. He’s a lot more consistent than most of the justices, and he writes pretty well-reasoned opinions.

                  Let’s face facts. Without identity politics, Obama doesn’t even get in the Senate, let alone the presidency. And, to be fair, there’s no Thomas, either. That’s not to say for one nanosecond that there are not qualified and competent black (or other minority) candidates for either gig. My personal first choice for the next justice is Janice Rogers Brown, notoriously black, female, and (Dear Jesus!) Southern.

                  1. “My personal first choice for the next justice is Janice Rogers Brown, notoriously black, female, and (Dear Jesus!) Southern.”

                    My first choice is Judge Joe Brown.

                2. It’s as if you’ve never read any of his decisions, to say he’s ignorant and borderline psychotic. It would take someone to be ignorant and borderline psychotic to label Thomas’s reasoned and thoughtful jurisprudence such.

              2. I agree with you Thacker – I hope I don’t diminish your street cred.

                Decision making is a complex matrix for sure – and over eager politicians sometimes weight attributes unevenly.

            2. No, that’s a legacy admission. Get them straight.

  2. “And they often do, as well-financed but failed candidates Ross Perot, Steve Forbes, Mitt Romney, and, more recently, Jon Corzine can attest.”

    And Michael Huffington.

  3. In the wake of the revelation yesterday at the Prop. 8 hearings that the Mormon Church was concealing direct involvement in the proposition’s passage, has anybody explored whether this ruling would also apply to churches? Or is it tailored narrowly?

    Reading Scalia’s comments below about speech being protected, not the speaker, makes me wonder why it would not.

    1. In the wake of the revelation yesterday at the Prop. 8 hearings that the Mormon Church was concealing direct involvement in the proposition’s passage, has anybody explored whether this ruling would also apply to churches? Or is it tailored narrowly?

      Does your opinion change at all given that church support was agreed by all sides as critical to passing the 1964 Civil Rights Act?

      I know that for a lot of people, Constitutional rights depend on who is using them and what they’re doing with it. So anonymous donations and no restriction on advocacy by corporations are good when the NAACP are doing them, but bad when evil corporations are doing them.

      1. Er. Well I haven’t expressed an opinion in this thread on this ruling (if it matters, I support it).

        I’m just looking ahead and trying to see how far this precedent goes. Frankly I think churches should be able to say whatever the hell they want (even though I oppose Prop. 8) and it should be up to the parishioners to decide whether it’s out of bounds, not the government.

        As for the tax-exempt issue, I throw up my hands on that one. On the one hand, that does give them an advantage when it comes to being able to spend money to influence politics. On the other hand … the government taxes too much as it is.

        1. this is why I support income tax exemptions for everybody

    2. So will the Latter Day Saints lose their tax-exemt status. If so, that would be great because the entire mormon church is just a big ponzi scheme.

      1. add the letter “p” as needed.

      2. So will the Latter Day Saints lose their tax-exemt status. If so, that would be great because the entire mormon churchall organized religion is just a big ponzi scheme.

        Fixed.

  4. But it will result in fewer committed progressive politicians being elected. And that is bad for the people, bad for the country, and bad for Democracy.

    I don’t want my country put up for sale. Only responsible people like journalists, concerned citizen and approved interest groups should have a say in elections. Entities interested in profits rather than people, should have no voice in how our country is run!!

    1. B+ performance art

      Points off for the comma splice and failing to use the term “buying votes.”

      1. I’m not seeing the comma splice.

        1. Strike that. I apparently meant to say extraneous comma.

      2. Thank you. I bet I could post on KOS or over at TPM and it would draw raves.

  5. And Michael Huffington.

    Hey, you breached Reagan’s commandment – never mention the gayness of a Republican.

    1. Was Ariana just a beard? No wonder she became a liberal.

      1. She was his merkin, not beard.

  6. Judging by the level of outrage displayed by Chuck Schumer, I suspect the Powers What Be see this as an infringement of the powers of incumbency.

    Oh, horror!

    ps- Dylan Ratigan is a hyperventilating populist piece of shit.

    1. If you are a Congress critter and your plan to stay in office is to demagogue against the evil capitalists and speculators, this is definitely bad news.

      1. If you are a Congress critter Barack Obama (or Hugo Chavez) and your plan to stay in office is to demagogue against the evil capitalists and speculators, this is definitely bad news.

        1. “plan to stay in office is to demagogue against the evil capitalists and speculators, this is definitely bad news.”

          Quite the contrary. It gives progressivees a new way to mobilize their base (something they urgently needed with the healthcare fiasco). “Save the country from the evil right-wing courts”–just as conservatives in the past won votes by their mantra “save the country from the evil left-wing courts.”

          Yes, of course big business will raise money aginst them–but they did that already, given the huge loopholes in the laws.

  7. Links to National Review make fourteen latent libertarians into Maoists, each.

  8. I agree with the decision because I believe it is always better to allow more speech rather than less. I do believe, however, that powerful corporations will be able to get more favors from the federal government and stifle competition somewhat more effectively than they have in the past, just by sheer weight of dollars. The reason is that the kinds of favors corporations want typically won’t come to the attention of the public in a way that would meaningfully impact the vote.

    1. Standard Libertarian Answer #101 – don’t give the government the power in the first place (or work to take it away) and this wouldn’t be an issue.

      1. I’m familiar with it. Given the failure of libertarian ideas to take a lasting hold on the public, however, we have to live with the problem anyway.

        1. I’m paddling as fast as I can!!!

          1. Paddle harder.

    2. “I do believe, however, that powerful corporations will be able to get more favors from the federal government and stifle competition somewhat more effectively than they have in the past, just by sheer weight of dollars.”

      As opposed to powerful unions, who have no influence of legislation whatsoever?

      1. I am definitely not a fan of them either.

        1. Rich corporations has plenty of influence before the ruling. Which was another criticism of campaign finance laws: they don’t really do jack shit other than sound good to idiots.

          1. Jack shit. You stole that phrase, bitch.

          2. The transparency laws are a good thing. I think it is useful to know who is doing the speaking. We definitely get more benefit from broadening access to information about the speaker than trying to restrict their speech.

          3. Not true. They allowed little corporations to be jerked around while the big corporations were unscathed.

            But to most left-wing morons, all corporations are big ‘n’ greedy.

            1. Sounds like you know more about the law than I. Or is it simply that the richer you are, the easier it is to hire lawyers to come up with a “workaround”?

              1. The purpose of the law was to obfuscate information about the candidates – like where they’re getting the money from – not to make buying and selling of politicians harder. Killing this legislation is a small victory for transparency.

            2. That’s generally who gets screwed the most. A lot of regulations–in most industries–are really intended to create barriers to entry. That’s the kind of footsies big businesses and government play. In fact, it shows the total confusion the left has about big business. It WANTS to be regulated!

    3. Where do I have my company go to get some of them favors you mentioned? Cause we’ve gotten basically nothing but a good ass fucking from the gummint for…decades anyway. So we’re up for some favors right about now – thanks.

      1. Definitely depends upon who you are. For example, let’s compare the government’s policies towards natural gas drilling companies versus, say, the oil companies. Got a billion or two? I can find you a Congressman to rent.

        1. Well, shoot – that don’t sound like a favor at all. But thanks anyway – guess it’s back to the anal punishment for us.

    4. Like big Pharma needs stinking tv advertisements to get favors?

      1. Take two boondoggles and call me in the morning

  9. Let me say this: Jack shit will change from this decision as far as influence goes.

    But we’re a little more free as a nation than we were yesterday.

    1. It is one less lever to harass the shit out of people they don’t like.

      It amazes me how people claim to support an open system but then want campaign finance laws. We are so much less free because of them.

      For example, if you had the time, it would be a blast to run for Congress or at least for a major party nomination for Congress. And it takes less money to do that than you think. If you are pissed off enough and have a few supportive and wealthy friends, thirty years ago, you could do it. And maybe even win. But not today. Forget it. Having a few wealthy buddies to help you out isn’t good enough. They can only give you a thousand dollars a piece. You have to be a political animal who has the connections and the ability to go out begging for donations. And you also have to hire an expert lawyer to keep from going to jail for violating these laws.

      These laws rule out all but the most depraved for public office. And I am convinced they are the reason why our political class is so much worse today than it was in the past.

      1. I’m not saying that nothing changes–plenty of litigation is now going to go bye-bye. Rather, I meant that they who have influence due to their wealth will continue to have influence. Just like they did under McCain-Feingold, which was worse than useless.

        I don’t have as big a problem with the disclosure rules, which were not struck down.

        1. I don’t have as big a problem with the disclosure rules, which were not struck down.

          I do. Speech can be anonymous speech.

          Do you think that DC is less corrupt as a result of disclosure rules? All it does is let you know who is on whose payroll. Companies give to whomever they think will be the winning team and even them they hedge their bets and donate all around. We are less free because of disclosure rules, not more so, as was shown in the Prop 8 debacle.

          As has already been said today ad nauseum: take away Congress’ powers to grant favors and watch the corporate donations evaporate. No need for any compaign finance laws then.

          1. OK, how about this: A moratorium on laws; no new laws for 10 years. None.
            Whatsoever.

            1. And make all those Congresscritters get real jobs?

              You sir, are no gentleman!

              1. I certainly am not. I’m a lawyer.

          2. As big, I said. I have problems with those, too. However, there is at least a principled argument to be made that those in government who receive funds should have to disclose their source.

            I agree that the fundamental solution is your last statement.

            1. OK, OK, you and your big as.

      2. Somehow, John, I don’t think that two Senators beating each other sensless with fire tongs and a cane in the Senate chamber is “better” than what we have today. For my part, I have never had much respect for our “political class”.

        1. I said it was worse today than in the past. That doesn’t mean that it is the worst ever. The political class that gave us slavery and the civil war is probably worse. But today’s is pretty bad.

          1. It’s terrible. The worst part to me is the public’s acquiesence in treating politics as entertainment. Civics lessons may be an obsolete relic, but they did have societal value.

        2. The only thing that could be better than “two Senators beating each other sensless with fire tongs and a cane in the Senate chamber” is three or more Senators beating each other sensless with fire tongs and a cane in the Senate chamber.

      3. That is true. You need an expert lawyer to make sense out of the morass of “campaign finance” and election reform laws passed over the last 30-40 years.

        And this drive to “keep money out of politics” overlooks one key truth: If government had not grown so large, if government regulation of our lives had not become so pervasive, and if government handouts were not so freely given to favored interest groups, there would be no incentive for “money” to become involved in politics in the first place.

  10. Off-Air America [Daniel Foster]

    C’est fini:

    It is with the greatest regret, on behalf of our Board, that we must announce that Air America Media is ceasing its live programming operations as of this afternoon, and that the Company will file soon under Chapter 7 of the Bankruptcy Code to carry out an orderly winding-down of the business.

    And then there is this sentence:

    In this climate, our painstaking search for new investors has come close several times right up into this week, but ultimately fell short of success.”

    Has this been a bad week for liberals or what?

    1. This just makes me even HAPPIER! I think I’m gonna buy two lottery tickets.

      Tonight, I dine on Liberals’ tears and Krugman’s deflated hubris.

      Lucky, lucky, lucky…

      Thanks for brightening my day further, John!

    2. I never thought I would see the day when liberal talk radio would have to close its doo…

      … Ok, yes, I did. Their business model was irrational, just like anything done by economics-illiterate kooks.

    3. Oh, yummy, yummy, salty tears indeed.

      Kick ’em when they’re down. Kick ’em hard.

    4. Maybe they’re just a scummy corporation changing their business model to direct campaign funding instead. Y’ know, now that’s it’s legal again.

    5. He that outlives this day, and comes safe home,
      Will stand a tip-toe when this day is nam’d,
      And rouse him at the name of Crispian.
      He that shall live this day, and see old age,
      Will yearly on the vigil feast his neighbours,
      And say ‘To-morrow is Saint Crispian.’
      Then will he strip his sleeve and show his scars,
      And say ‘These wounds I had on Crispian’s day.’
      Old men forget; yet all shall be forgot,
      But he’ll remember, with advantages,
      What feats he did that day.
      * * *
      And gentlemen in England now-a-bed
      Shall think themselves accurs’d they were not here,
      And hold their manhoods cheap whiles any speaks
      That fought with us upon Saint Crispin’s day.

      1. Great speech, but I like the one with the womby vaultages, too.

  11. Air America is merely a syndicator anyway. Most of their shows will likely be picked up by other syndicators.

    1. Old Mexican – wanna go into the syndicated-radio-show bidness with Air America’s orphans? No? Not even halfies? Didn’t think so. Thought I’d check.

      1. Not me – I’ll pass.

  12. Liberals on Free Speech and Campaign Laws

    by Stephan Kinsella

    http://www.lewrockwell.com/blo…..more-48090

    It’s widely believed ? even by Nolan Chart libertarians ? that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties[…] This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.

    A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place ? after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791.

    1. Money 🙂 (no pun intended)

    2. Very, very Hamiltonian.

  13. I think that all laws found to be unconstitutional should require the sponsors and all signees in favor of the legislation to be tried and executed as enemies of the state. Why should McCain, Feingold, et al be allowed to walk the streets when it is clear they were supporting the subversion of the constitution by illegitimate means?

    1. That’s not a bad idea – after all, they all swear to uphold and protect the Constitution. Anything that violates that vow should be considered as high treason.

    2. I imagine because then the SCOTUS would be even less likely to declare laws unconstitutional.

    3. Too much power to SCOTUS (if they’re opposed to Congress). More to the point, there can be reasonable disagreement.

      I think it would have to be pretty egregiously wrong to merit execution. I couldn’t condone it on a 5-4 decision, but certainly 9-0. 7-2 would probably be ideal.

    4. Seems a tad harsh. How about if all the sponsors and signees just get booted from office?

  14. Re: Tony,

    If it were easy to figure out what the constitution requires we wouldn’t need a supreme court.

    Don’t be disingenuous – the Courts are not sage priests to “interpret” the Constitution – the document was written in plain English. They are there to make sure the newly minted laws do not overstep the limits imposed by the Constitution or trample on people’s rights – it is easy for an overeager Congress to do either or both.

    1. If the document is so easy to interpet, written in “plain English” etc., why does it never clearly provide for judicial review?

      This it seems to me is the contradication faced by libertarians and others who would like the Court to overturn lots of laws, yet claim this isn’t “activism”–no matter how overwhelmingly the laws in questionn passed and no matter how many past Court precedents have sustained them–because the “plain language” of the Constitution supposedly requires invalidation.

      But if we are to look at the Constitution’s “plain language” we will see no reference at all to judicial review! So the advocates of judicial review have to talk about “implied” powers of the Court in the same way that they hate when advocates of more execuitve or legislative powers do it for *those* branches! Is is hard for me to see how one can legitimately privilege one branch of government (and one fileld by lifetime appointees) this way…

      1. But if we are to look at the Constitution’s “plain language” we will see no reference at all to judicial review!

        Yes it does. Only modern lawyers think it does not:

        Article III, Sec 2:

        “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution[…]”

        There it is indicated that the Supreme Court can look at and nullify a law if it goes beyond the scope of the enumerated powers of the Constitution or any of the amendments (that is what “arising under this Constitution” means, in plain English.)

        And I am not even a native English speaker.

        1. OM-

          With all due respect, you may not be a native English speaker, but you certainly write better than the vast majority of them-

          It would kill me to learn that you are a bilingual ed product.

        2. As Alexander Bickel explained long ago in *The Least Dangerous Branch,* the language of the arising-under clause *by itself* would not necessarily authorize judicial review:

          “Note well, however, that what the Constitution extends to cases arising under it is ‘the judicial Power.’ Whether this power reaches as far as Marshall wanted it to go–namely, to reviewing acts of the legislature–is the question to be decided. What are the nature and extent of the function of the Court–the judicial power? Is the Court empowered, when it decides a case, to declare that a duly enacted statute violates the Constitution, and to invalidate the statute? Article III does not purport to describe the function of the Court; it subsumes whatever questions may exist as to that in the phrase ‘the judicial Power.’ It does not purport to tell the Court how to decide cases; it only specifies which kinds of case the Court shall have jurisdiction to deal with at all. Thus, in giving jurisdiction in cases ‘arising under … the Laws’ or ‘under … Treaties,’ the clause is not read as prescribing the process of decision to be followed. The process varies. In cases “under . . . the Laws” courts often leave determination of issues of fact and even issues that may be thought to be “of law” to administrative agencies. And under both ‘the Laws . . . and Treaties,’ much of the decision concerning meaning and applicability may be received ready-made from the Congress and the President. In some cases of all three descriptions, judicial decision may be withheld altogether–and it is for this reason that it will not do to place reliance on the word ‘all’ in the phrase ‘all cases… arising …. ‘ To the extent that the Constitution speaks to such matters, it does so in the tightly packed phrase ‘judicial Power.’

          “Nevertheless, if it were impossible to conceive a case ‘arising under the Constitution’ which would not require the Court to pass on the constitutionality of congressional legislation, then the analysis of the text of Article III made above might be found unsatisfactory, for it would render this clause quite senseless. But there are such cases which may call into question the constitutional validity of judicial, administrative, or military actions without attacking legislative or even presidential acts as well, or which call upon the Court, under appropriate statutory authorization, to apply the Constitution to acts of the states. Any reading but his own was for Marshall ‘too extravagant to be maintained.’ His own, although out of line with the general scheme of Article III,may be possible; but it is optional. This is the strongest bit of textual evidence in support of Marshall’s view, but it is merely a hint. And nothing more explicit will be found.”

          http://books.google.com/books?id=eEoyK7ZCXjsC&pg=PA5

          It is, not true, by the way, that only “modern lawyers” have questioned the constitutional basis of judicial review. See Justice (later Chief Justice) of the Pennsylvania Supreme Court Gibson’s famous attack on the doctrine in his dissent in the 1825 case of *Eakin v. Raub*. http://digitalindalo.com/polisci/eakin.html

          1. It does not purport to tell the Court how to decide cases; it only specifies which kinds of case the Court shall have jurisdiction to deal with at all. Thus, in giving jurisdiction in cases ‘arising under … the Laws’ or ‘under … Treaties,’ the clause is not read as prescribing the process of decision to be followed.

            Bullshit – next thing, he will be asking for a manual on how to breathe. What do Judges do? Review cases as they pertain to a specific law. What cases? Anything that falls under the Constitution (which includes legislation) How is it done? In the same manner the Constitution confines the powers of the Legislature and Executive to the enumerated powers, so does the Judicial limit its decisions to the confines and limits imposed by the constitution. It does not need to be spelled out exactly – the Judicial swears an oath to uphold and defend the Constitution just like every member of the Legislative and Executive branches.

            They have the capacity and obligation to review a case (which can and does include legislation) as it pertains to the Law of the Land: The Constitution.

            Th critics of Judicial Review have indicated with good reason that many times the Supreme Court has gone BEYOND the scope of the Constitution and made decisions that define powers that are not enumerated, either by unduly limiting the scope of the Bill of Rights or by creating new rights that did not exist and that place an “obligation” on government. But that is not the fault of the concept of Judicial Review – the fault lies entirely on a legal philosophy called “positivism”, which has permeated judicial decisions and legislation ever since government discovered it could transform Man to Its Image.

            1. I do not think that it is too much to say that if the Framers had wanted the court to have a power of jusicial review, they should have indicated so more specifically. (There were very few possible precedents for such a power, and they were heavily disputed.)

              Moreover, if the Framers intended the court to have the right to review the consitutionality of the acts of congress, it seems peculiar that they gave Congress (a) the right to make “exceptions” to the appellate jurisdiction, and (b) the right to pack the Court by changing the number of judges any time they wanted to.

              The basic problem with advocates of judicial review is that they think that the very idea of a limited-powers Congress implies a need for judicial review, that otherwise the limitations on the powers of Congress will be meaningless. But that is not so. How was the Sedition Act eliminated? Not through judicial review–the courts, who for obvious reasons consisted of Federalists, sustained the law–but by political action by both the states (the Virginia and Kentucky Resolutions) and the people (who elected Jefferson in 1800). These are not perfect methods, but I’ll take them over relying on nine lifetime appointees any say.

  15. One can argue that *any* judicial review is activism, since the power is not clearly found in the Constitution itself.

    In the past, it was mostly the Right which attacked judicial review. This has been changing over the past several years-see Mark Tushnet’s *Taking the Constitution Away from the Courts* and Larry Kramer’s *The People Themselves* (though Kramer asserts he is attacking not judicial review, but judicial supremacy–i.e., the idea that, failing a constituotional amendment, courts have the “last word” on constitutional issues) for examples of attacks from the Left. My guess is that these attacks will increase in intnsity over the next few years. (Unless of course one of the five of the more conservative justices dies and Obama gets a chance to replace him. In which case, of course, the Right will again decry “judicial activism” and the Left will again uphold the Court as the palladium of our liberties…)

  16. I think that for the first time in a long time I can truly look at a Supreme Court decision and happily declare too all who may hear:

    Pwned!

  17. Man, this has been a really good week.

    1. This is The Libertarian Moment, apparently. But then again, it’s always The Libertarian Moment according to Reason writers…

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