History

In Restraint of Liberty

Citizens United and the problem with conservative judicial restraint

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In his dissent from the landmark gun rights ruling in District of Columbia v. Heller (2008), liberal Supreme Court Justice John Paul Stevens charged his conservative colleagues with a surprising crime. "No one has suggested that the political process is not working exactly as it should," Stevens declared. Thus it is "clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."

Dissenting last month in the free speech case Citizens United v. Federal Election Commission, Stevens repeated the charge of judicial activism, lambasting the conservative majority for "bypassing or ignoring rules of judicial restraint used to cabin the Court's lawmaking power."

Examine virtually any criticism of Citizens United and you'll find a similar complaint. "Make no mistake," declared Loyola law professor Richard Hasen, "this is an activist court that is well on its way to recrafting constitutional law in its image." Liberal columnist E.J. Dionne sputtered at "the Supreme Court's recent legislation—excuse me, decision." Union leaders Ron Gettelfinger and Larry Cohen bewailed the Court's "stunning display of judicial activism that overturned federal and state campaign laws dating back to the early 19th century." University of Chicago law professor Geoffrey Stone described Citizens United as "a very activist decision that will fundamentally transform American politics in the years to come."

While they're wrong about the outcome of the case, these critics do raise a valid point. Every major proponent of judicial restraint has emphasized that the courts should defer to the will of the people and their representatives, and therefore vote to uphold the vast majority of duly-enacted laws. In a famous 1958 lecture at Harvard University, for instance, federal judge and respected legal writer Learned Hand famously likened the Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the very idea of democratic rule. Were the Court to have the final say on every political question, Hand declared, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Conservative federal Judge Robert Bork agreed, writing in his popular 1990 book The Tempting of America that "in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities." Progressive Era Justice Oliver Wendell Holmes—one of judicial restraint's earliest and most influential advocates—put it a little more bluntly: "If my fellow citizens want to go to Hell I will help them. It's my job."

More recently, during his 2005 Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and the popular will that Roberts extended all the way to the abortion-affirming Roe v. Wade (1973), a decision he called "the settled law of the Land."

So following that logic, why shouldn't duly-enacted campaign finance laws receive the same deference from the Court? Or in the case of Heller, why should the courtroom replace the ballot box when it comes to removing gun control regulations?

Applied consistently, judicial restraint offers no satisfactory justification for these decisions, something that the respected conservative legal commentator Stuart Taylor Jr. recently acknowledged. Writing in National Journal, Taylor criticized Citizens United's conservative majority for having "forfeited whatever high ground they once held in the judicial activism debate." Conservative federal Judge J. Harvie Wilkinson said the same thing after Heller, arguing that Justice Antonin Scalia's majority opinion "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." In Wilkinson's view, "The largest threat to liberty still lies in handing our democratic destiny to the courts."

But that gets things exactly backwards. Heller and Citizens United were correct precisely because in those decisions the Supreme Court acted to protect constitutional rights from democratic majorities. Indeed, the Court has been at its historic best when doing just that.

Consider Meyer v. Nebraska (1923), which dealt with a state law banning foreign language instruction for young children, passed during the anti-German hysteria of World War I. The Nebraska Supreme Court had upheld the ban, writing, "The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land." Practicing the judicial restraint that he preached, Justice Oliver Wendell Holmes deferred to the state legislature and cast a silent dissenting vote.

Similarly, in Pierce v. Society of Sisters (1925), the Court struck down an Oregon law, which had been spearheaded by the Ku Klux Klan and other anti-Catholic groups, forbidding parents from educating their children in private schools. In his majority opinion, arch-conservative Justice James McReynolds declared, "the child is not the mere creature of the state" and nullified the offending law.

If it had followed the majoritarian, pro-government bias of judicial restraint, the Court would have offered zero protection in such cases, thus nullifying the judiciary's constitutional role and leaving our rights at the mercy of lawmakers. That's the real threat to liberty.

So let's say the Supreme Court did abandon judicial restraint in Heller and Citizens United. Good riddance.

Damon W. Root is an associate editor at Reason magazine.

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  1. “No one has suggested that the political process is not working exactly as it should,” [Justice] Stevens declared. Thus it is “clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.”

    In other words, judicial restrain should be practiced whenever the potential outcome is disliked by the liberal judge . . . only.

    1. Very convenient ideology, because Scalia shows real restraint. In Bush vs Gore, he disliked the outcome of the election, so he restrained himself as to elect the president himself. I’ll buy Steven’s activism if you’ll get off you high horse. They’re all crooks who rule by their ideals, not the law.

      1. yawn…

        1. Pete Weber, please it’s the 21st century. Take off the shades and come up with a better name.

      2. Ye gods, that is bullshit of the highest order. And I think Republicans are stupid statist assholes.

        1. The bullshit of the highest order is down below. Just look for someone who doesn’t understand the meaning of “begging the question.”

      3. I definitely think we should ignore the most egregious example of judicial activism in court history because it doesn’t further our narrative.

      4. How many SC judges followed your advice re: McCain-Feingold?

  2. Off Topic: No snow yet where I am, supposed to be tomorrow I think.

    Reports from DC friends is the Snowpocalypse is upon them. The 6PM rush hour happened between noon and two.

    1. The correct term is “Snownami”

      1. Sorry, but it’s Snowmagedeon.

        It’s coming down here like someplace much farther north. We’re all expected to be dead by Saturday night. I mean all of us. Everyone in DC. But, only those without geothermally heated bunkers and atomic powered snow blowers like our masters have.

          1. “They took the bar! The whole fucking bar!”

    2. Just got off the phone with outside counsel in DC. He said “Snowpocalypse.” At $600/hour, I think he spoke authoritatively.

      1. Well, if you’re paying him, then he is absolutely correct.

        I’ll be sending you my bill for consultation.

        1. Oh, we’re paying him.

          1. Well, in this case, I’d say a bit too much.

            Fortunately for you, I only charge $450/hour for my opinion.

            1. He’s a specialist.

              1. What? And I’m not? I specialize in non-directional snark and thoughtless drivel.

                1. Sadly, there is not much demand in the snark and drivel trade. The market is currently swamped with suppliers.

      2. Your mouth piece has it right. Snowpocalypse is even in the Urban Dictionary, what more authoritative source can you find than that?

        At this moment it looks like I could do donuts with the truck but going to have a few more beers and wait until morning.

        1. Feh. *Everything* is —pocolypse now. Shoepocolypse. Kittenpocolypse. It’s shop-worn formula. Never mind all those soft, round letters in the middle, faying it up even more.

          Now, armegeddon; that’s a man’s word. It reeks of bloody swords over the plains of battle, bodies strewn as far as the eye can see. —mageddon has a *much* more authoritative ring to it AND has one of the worst movies in history sharing half the word.

          1. And it seems, at least 3 different spellings. Top that pocolypse!

  3. Why does SCOTUS even debate the possible/probable effects of a law or the absence of a law rather than or outside the context of what the Constitution permits government to restain?

    1. This has been precisely my question about the ‘liberal’ minority on the current court. Time and time again they have written in majority opinions and in dissents about the potential outcome as a reason for holding something constitutional or not. It is as if the truly believe that the constitution restrains the government “unless it is really, really important”. In fact, that’s almost word for word what Stevens says in his dissent. It is perfectly constitutional for congress to make a law abridging free speech if they find it to be important to do so. This despite the plain language of the first amendment to the contrary. (‘NO Law’ is pretty unambiguous, and does not allow for exceptions due to “importance”)

      1. They’re judicial realists, a jurisprudential school of thought of choosing the decision you want and giving all the reasons why you’re correct, like public policy concerns etc. I never understood why this made any sense. I wish judges would turn back to a natural law based analysis or heck, even a formalist analysis based on the actual law.

  4. Despite being a wonderful thing, Roe v. Wade is a prime example of raw judicial power and activism. The vast majority of duly-enacted laws in 1973 were anti-abortion.

    1. Despite being a wonderful thing, Roe v. Wade is a prime example of raw judicial power and activism

      What about the fact that the protection of the right to an abortion can not be reasonably extrapolated from the enumerated protections in the Constitution? (By contrast, it is much less of a stretch to conclude that the First Amendment protects the right of the New York Times Company to publish articles critical of the government.)

      1. A right need not be “reasonably extrapolated from the enumerated protections in the Constitution” in order to be a right protected by the Constitution. Go read it again and come back.

        1. It wasn’t about the Federal government not being able to restrict abortions. The right to privacy is expanded to restrict the state and local governments as well. This is a good thing, IMHO, but it was decided under a somewhat shakey rational of “penumbral” rights, rather than a simpler reading of “If the constitution doesn’t grant the government power over this aspect of your life, then the congress cannot enact a law to govern it.” In fact, that was part of the argument against an enumerated bill of rights in the first place – the suspicion that later generations would come to read this list as comprehensive. Even the notion of “penumbral” rights gives a bit of a nod to this notion, when the opposite should be the case. The government has no rights not granted by the constitution. Period. So if the constitution does not give the government the right to create a ponzi-scheme retirement plan for all of the citizens of the United States, then the congress cannot enact such legislation. Pretty straightforward and simple. It didn’t stop them from creating the Social Security Administration though.

          1. Should not abortion regulations have been reserved to the states or the people via the Tenth Amendment?

            1. Actually the states would be restrained by the same limitations as the federal government under the 14th amendment.

              “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

              If we agree that a citizen’s “privileges or immunities” (aka rights?) includes all things which the constitution says congress can make “no law” about, then states have no more lawful abilities of restriction than congress.

              1. Of course, this would mean that the federal gov’t had the authority to decide criminal laws nationally in the first place, which would make the 10th Amendment irrelevant. Criminal, health, and marriage laws were left to the individual states. The incorporation doctrine cannot cure this and grant new enumerated powers.

        2. I don’t think it could be reasonably exprapolated from the unenumerated ones either.

          1. how about the right not to be forced, at the point of a gun, to use your body to support another, even if the other is a person? You have to introduce a positive right to get past this problem. Of course, then you’re not talking about rights any more at all.

            1. Problem is that, absent rape, your willful actions and decisions placed that person (if the other is a person) in the position of life-or-death dependence without their consent.

              I don’t think you should ordinarily be compelled to offer one of your two functional kidneys to a stranger just because you’re a match, but if they lost their kidneys in an accident where you were clearly negligent, then I think it’s pretty fair.

              1. oookay, you deem it fair. That’s nice. And in what world would THAT scenario ever happen? If I was going 100 miles an hour, drunk, with my eyes closed, amd I fatally injured someone’s kidneys, the government certainly doesn’t have the right to take one of mine as payment.

            2. Like child support and alimony?

            3. If you look at it from the point of view of the mother, then, yes, it would be a positive right. However, if you look at it from the point of view of the person or fetus, then it would be a negative right, meaning the mother had no right to aggress upon it without consent. Of course, consent is always a problem with children and the mentally incapacitated.

        3. What’s funny is that liberals the court can find a convenient “pennumbra” of personal liberties, which I’m OK with, but can’t seem to locate the penumbra of economic liberties outlined in the Bill of Rights.

          See Amendments 1, 2, 3, 4, 5, 9 and 10.

    2. From the song I am Woman as sung by Hellen Reddy:

      I am woman watch me grow
      See me standing toe to toe
      As I spread my lovin’ arms across the land
      But I’m still an embryo
      With a long long way to go

      Until I make my brother understand

      1. That should be greatest lyrical irony ever.

      2. Prolife propaganda in the Feminist National Anthem?

        Awesome.

        But then, not all feminists are pro-abortion. There’s Susan B. Anthony in the 19th Century, and Feminists for Life in this century.

        So I’m not sure I’d call it ‘irony.’

      3. An embryo with 3,000 mile long arms that’s almost creepy.

        1. But imagine the legs on her.

    3. ‘Despite being a wonderful thing, Roe v. Wade is a prime example of raw judicial power and activism.’

      Other than that, Mrs. Lincoln, how did you like the play?

  5. How about this idea?

    Just follow the Constitution and the relevant case law.

    1. Nutjob! Corporate apologist!

      1. Nutjob! Corporate apologist!

        I have never publicly stated that the will of the majority is absolute, unlike others who have posted on Usenet.

        Judicial activism is courts go beyond plain meaning and precedent, either to find exceptions to rights or invent new rights. Jacob Sullum once pointed out that results-based jurisprudence ultimately undermines whatever protection a constitution offers.

        For example, I support decriminalization of marijuana. And yet, a Supreme Court ruling striking down state laws against marijuana possession on the basis that such laws violate the Ninth and Fourteenth Amendments would be raw judicial activism. There is no reasonable extrapolation of a right to smoke marijuana from any of the rights that the people retained at the time the Ninth Amendment was ratified.

        1. See this is the argument that broke out about the Bill of Rights (my historic knowledge fails me as to who was on what side, I’ll blame my largely public education for my ignorance). The loosing (they lost as we do have a Bill of Rights) side’s argument was, if it NOT in the Constitution government cannot do it.

          The creation of additional “rights” implied that the government is limited only to protecting citizens rights that are enumerated in said document, government can do anything else BUT violate outlined rights.

          1. I have never publicly stated that the will of the majority is absolute, unlike others who have posted on Usenet.

            Michael–Tweak your sarcasm detector settings.

            I agree with you. I was spoofing the twits who think that the plain language of the 1st Amendment is something to regressively parse into meaningless mush, just so their team converts a first down.

            I would go so far as to posit that the will of the majority should *never* be absolute, when you are talking about rights. Fundemental liberties (negative liberties, not the fictional positive liberties) should never be left up to the thoughtless chants and lynchings of the mob.

            1. Fundemental liberties (negative liberties, not the fictional positive liberties) should never be left up to the thoughtless chants and lynchings of the mob.

              Different people have different ideas of what constitutes fundamental rights.

              Ultimately, the constitutional amendment process is what we use to determine which rights are fundamental.

              1. We can at least agree that the enumerated rights are fundemental. That’s not an exhaustive list by any means (nor shoul dit be), but it’s a starting place.

                However, someone arguing that even these rights are up for grabs is not someone to be taken seriously. Excepting the 18th Amendment, corrected by the 21st,there have been no amendments that have restricted already existing enumerated liberties.

  6. Judicial restraint and judicial activism does not mean what these people claim it does.

    It has nothing to do with being deferential to legislative bodies or not.

    It has to do with enforcing the Constitution according the the literal text as per what the common understanding of the words were to those who ratified the Constitution at the time they did so.

    Whether that results in affirming some law passed by a legislature or striking it down is NOT the determining factor.

    1. As an attorney and private conlaw scholar, I’m inclined to agree with Mr. Martin.

    2. Ding! We have a winner.

    3. Damon Root gets it exactly right by emphasizing the specific role of the judicial branch: to guard against the tyranny of the majority. Commenters have tended to wander off that element of constitutional law. I’m not a lawyer, but as I reverse-engineer the three-branch system established by the Constitution, I don’t see any other purpose for the judicial branch than that.

      1. Damon Root gets it exactly right by emphasizing the specific role of the judicial branch: to guard against the tyranny of the majority

        Only as far as the Constitution permits.

        Striking down state or federal laws prohibiting television news reporters from criticizing government policy, yes.

        Striking down state laws against the use of marijuana, no.

        1. How can you be so sure about marijuana laws even though the Constitution has a Ninth Amendment? “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

          1. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

            Smoking marijuana was not retained as a right at the time of the ratification of the Ninth Amendment, and the proper interpretation of the Ninth is that it protects rights retained at the time of the ratification .

            1. Perhaps it’s not “The Right to Smoke Mary Jane”, but, rather, “The Right to Put Whatever the Fuck you Want in your own Fucking Body, as Long as it Doesn’t Directly Harm Anyone Else” that the SCOTUS would be protecting. (Or, if you want a negative right, “The Right not to be Told not to …[etc.]”.)

              1. Perhaps it’s not “The Right to Smoke Mary Jane”, but, rather, “The Right to Put Whatever the Fuck you Want in your own Fucking Body, as Long as it Doesn’t Directly Harm Anyone Else” that the SCOTUS would be protecting.

                Is there any evidence that this was considered a right back in the 18th century?

          2. The Ninth Amendment preserves rights that are not stated in the Constitution, but there still needs to be a legal basis for those rights.

      2. Well, the majority neither passes nor enforces laws, so they actually guard against the tyranny of the incredibly small minority who are elected representatives, government officials, and so on.

        1. +1

      3. I just did a search for that term on this page. I’m glad somebody finally mentioned the concept. Rights are not forfeit simply because a majority finds them inconvenient.

    4. Agreed, very much so.

      Our system, that which was settled upon despite those who felt they had something better, is not unchangeable but there are rules that must be followed to do such. Those who fought for and founded this country were not lovers of government they did however understand some government was a necessary evil, so they put it together in a such a way it could serve it’s minimal purpose and still be nearly impossible to grow into a monster. It’s a good system, best I’ve ever been made aware of. It can protect us from tyrannies of majorities and minorities, from dictators and overthrow by conspiratorial groups. If only we had just stayed on top of those we select to represent us, and those justices stick to that constitution.

      I swore an oath to defend the United States Constitution from all enemies domestic or abroad. Every one of those people we sent to Washington swore a similar oath. Seems the difference is I took mine seriously. That document they so readily ignore is the very heart of being an American.

      It’s my hope these recent decisions signal an awakening within the Judiciary. If not we have a very rough road a head of us. A tremendous amount rests on their shoulders now. They’re probably our last chance to see this country saved.

      Checks and balances, Obama’s right we haven’t seen a lot of those in a century.

      Best way to clear the despots out of Washington: Hold them to the rules, if politicians can’t stretch and break the rules then they are denied the motivation to even be there in the first place.

  7. If legal and constitutional language were perfectly unambiguous then there would be no need for the defeasible principle of restraint. However, language in general is not unambiguous. A right to bare arms is plainly stated. Does it include a right to build a private army with tanks and fighter jets? I don’t see how an appeal to original intent can solve questions of interpretation when it comes to advanced modern weaponry. The Court needs some principles of jurisprudence for such cases.

    Similarly with the 1st amendment. Is unlimited corporate spending to advance commercial interests by influencing the political process protected? Some deference to the democratic process may be in order here; it is, at least, not crazy to think so.

    But restraint should be defeasible. Liberals will not widely accept restrain in questions concerning the rights of oppressed groups. Indeed, another principle of jurisprudence is that of strict scrutiny of (even democratically supported) laws that discriminate in some fashion. In my view, however, corporations do not fall under the conditions for applying strict scrutiny. The court has interjected itself into a decision made through the democratic process to protect that very process from oligarchic influence. Maybe alarmists are wrong about the potential implications. However, I have a hard time seeing the case for judicial activism to protect the interests of legal fictions.

    1. “Some deference to the democratic process may be in order here; it is, at least, not crazy to think so.”

      No. It is crazy. It’s not as if there weren’t cash-rich busineses with political aims back in the 18th century.

      1. Now. Now. Let’s remember what we read earlier on Reason: that it’s mostly liberals who condescendingly think they have a monopoly on knowledge and that anyone who thinks otherwise is crazy.

        Actually, I probably don’t have enough knowledge of history to continue the argument, but I can suggest how it might go. My understanding is that at the founding there were pretty serious limitations on corporations. They could only exist for a few decades, only trade in one commodity, etc. Correct if that’s wrong. My further understanding is that the founders were highly suspicious of the mercantilist merging of corporate and state power (sort of what the original tea party was about, no?). If I’ve got the history right then I don’t see it as wildly implausible to think that at least many of the founders would get on board with restrictions on political influence as a trade off for removing commercial limits on corporate wealth accumulation. In any case, I don’t think the short text of the 1st amendment clearly settles the issue one way or another.

        But what do I know… I’m a craaaazzzzzy librrrruullll.

        1. crazy was jrshipley’s word of choice, not mine.

          1. You were perfectly free to choose a different word when you wrote “No, it is crazy.” 😛

            I was just having some fun with the stupidity of the whole “liberals are condescending and arrogant” article from earlier.

        2. That’s wrong. Plus, we’re talking about Federal restrictions on expression, not regulation inherent in state statues that enable various corporate form.

    2. Some deference to the democratic process may be in order here; it is, at least, not crazy to think so.

      There is already a democratic process for changing the Constitution. Either pass an Amendment or deal with it.

      1. Passing ammendments is hard!

      2. Your response begs the question. Nice try though.

    3. If legal and constitutional language were perfectly unambiguous then there would be no need for the defeasible principle of restraint.

      Help me spot the ambiguity on “Congress shall pass no law . . .”, jrs.

      1. It’s not clear to me that campaign finance law abridges anyone’s right to free speech.

        1. You’re saying I can’t buy a megaphone to amplify my voice on the street corner?

          1. of course you can. I’m saying it’s not clear to me that limiting a fiction of commercial law’s ability to buy all the megaphones abridges any individual’s freedom of speech. Indeed, you were perfectly capable of buying a megaphone before the recent decision, no?

            Anyway, I’m done here. You guys were all fun to argue with. I’m actually sympathetic to some things both sides say on this. My main premise was that the liberal side is not a bunch of crazy morons who fail to take the constitution seriously, but now I’m being pressed into defending that side as though I was solidly in that camp.

            1. My main premise was that the liberal side is not a bunch of crazy morons who fail to take the constitution seriously

              Actually, now that you mention it…

            2. I can’t make a movie saying Hillary Clinton should be bitchslapped just before an election. That’s political speech, not “money.” Unconstitutional, and obviously so.

              1. The fact it’s “political” is unimportant beyond that it makes the unconstitutional regulation of expression more obvious.

                1. Right. I’m not much for the hierarchy of speech–it’s either protected or not–but there’s no question political speech is very important to a free society.

            3. Prisoners in jail are perfectly capable of ranting at walls.

        2. Really? You can’t broadcast a critical ad mentioning a condidate’s name within 60 days of a general election and that’s somehow not an abridgement of speech rights? That doesn’t strike you as a convenient protection of the incumbent political class from the most widesrpread and powerful criticism, media-wise?

          Can I have some of what you’re smoking?

          1. Of course I can’t. I could never afford it.

            But by “you” I think you mean “corporations”, right? And we’re back to begging the question whether limiting corporate spending to influence elections abridges the right to free speech. My point was just that when all either side can do is beg questions and pound fists that maybe there’s a place for deference. I would also suggest that is especially relevant when the law is passed democratically with the intent of protecting the democratic process from oligarchic influence… you know, all that East India Company mercantilist stuff.

            But maybe we should just defer to the rightwing papacy and their direct line to Jefferson in all matters of interpretation.

            Ok, now I’ve really been playing for too long. Cheers.

            1. But maybe we should just defer to the rightwing papacy and their direct line to Jefferson in all matters of interpretation.

              Or, you know, the plain language of the Constitution, which, by the way, outranks democratic processes.

              Nah, that’s crazy talk.

            2. Or maybe there’s no good reason to enable the creation of the limited liability corporation? Read your Rothbard, baby.

            3. The problem with attempting to limit what “corporations” can say is that corporations aren’t an entity with the ability of speech. A building doesn’t have or express opinions. Only people do.

              The court’s decision was based on ensuring that individuals have a right to say what they want (via their dollars) whether they are in a group or not. It would be very silly if you were only allowed to express your opinion if you did it without the help of people who agree with you.

              1. Word up, slutmonkey! It’s so funny how that works, corporations and governments alike get treated like they’re their own big, scary monsters. No, there are people in there!

        3. A right to bare bear arms is plainly stated.
          +
          Is unlimited corporate spending to advance commercial interests by influencing the political process protected?

          Is it unconstitutional to keep the National Rifle Association’s Institute for Legislative Action from airing pro-gun-rights campaign ads the week before an election? I think so, and that’s precisely what the case was about.

          Liberals will not widely accept restrain in questions concerning the rights of oppressed groups. Indeed, another principle of jurisprudence is that of strict scrutiny of (even democratically supported) laws that discriminate in some fashion. In my view, however, corporations do not fall under the conditions for applying strict scrutiny.

          So the NAACP, LULAC, NOW, AARP, ACLU, Indian tribes, AFL-CIO, and PFLAG should be prohibited from running political commentary before an election, but major media corporations should not?

          It’s not clear to me that campaign finance law abridges anyone’s right to free speech.

          [4,000,000 NRA members hold up their hands]

        4. Political advertisement is either speech or it is not. Either way, the fact of whether it is or is not cannot be changed based on from where it originates.

          If it is not speech then the argument can be made that Congress can pass a law restricting it because it would not be protected by the First Amendment.

          If it is speech, Congress does not have the Constitutional authority to restrict it in any way. The First Amendment is pretty clear on that point. It doesn’t make exceptions for the source.

          But so what? Who cares about the Constitution? It’s not like double standards ever hurt any other group of people in this country…

    4. I completely disagree. Not with the notion that corporate dollars may have an unwanted corrupting influence on a democracy, nor with the notion that it might be a good idea to restrict their deployment in this regard.

      What I disagree with is the notion that this qualifies as a constitutional argument. The constitution clearly does not allow the government to restrict speech…. at all.

      If we need to restrict speech to protect our government from corruption, we’ll need to add to the powers that the government has to restrict our speech via a constitutional amendment. This is precisely how it should be. Your much lower standard of “well, I think it is a really important, so I’ll apply some jurisprudence to alter the plain meaning of the language” does not sufficiently guard against Tyranny.

      1. You’re misunderstanding my argument. The point would be that it isn’t clear whether this restricts freedom of speech. To pound the table and say “NO law” just misses the point. I don’t see anything in the text that strictly implies that imposing limits on corporate influence in the political process restricts anyone’s right to free speech.

        You’re attributing to me a purely consequentialist argument that I’m just not making. In fact, I tacitly expressed some skepticism about the most alarmist predictions behind the consequentialist argument.

        1. To pound the table and say “NO law” just misses the point.

          No, that *is* the point. It’s kinda, you know, crystal clear, in that regard.

          Let us know when you get that “no law” part figured out.

          1. Indeed so.

            The nature of any party that chooses to engage in freedom of speech is irrelevant.

        2. The lawyer arguing the government’s case said he believed McCain-Feingold would permit the government to ban books an act that traditionally qualifies as restricting speech. Please explain exactly HOW you don’t see that it restricts 1st amendment protected rights?

        3. It isn’t clear what 2 plus 2 is. To pound the table and say “4!” just misses the point.

      2. If we need to restrict speech to protect our government from corruption, we’ll need to add to the powers that the government has to restrict our speech via a constitutional amendment.

        If freedom of speech corrupts our representatives, we need new representatives. The last thing we need to do is give them more power.

    5. Re: jrshipley,

      If legal and constitutional language were perfectly unambiguous then there would be no need for the defeasible principle of restraint.

      That’s a non sequitur.

      A right to bare arms is plainly stated. Does it include a right to build a private army with tanks and fighter jets?

      The Constitution does not grant rights. The Articles and Amendments are meant to be restrictions on the Federal Government, not a list of ennumerated rights the People can enjoy.

      If a person can afford it, then he could create his own private army. The 2nd Amendment is actually a prohibition imposed on Congress to pass laws that abriges the right to bear arms. It does NOT grant that right to people since it already exist!

      But restraint should be defeasible. Liberals will not widely accept restrain in questions concerning the rights of oppressed groups.

      If that is the case, the concept of judicial restraint becomes meaningless, since it would end up meaning “restrain when the outcomes does not sit well with me.”

      What should be defensible is the concept of Judicial Nullification, which is exactly what was applied in this case – you strike down laws that are clearly violating individual’s Constitutional or natural rights. Individuals do not lose those rights just because they form organizations – this includes corporations.

      Instead, what SHOULD be discouraged is judicial legislation, or the invention of rights that do not exist.

      1. I don’t think I said anything about “granting” rights. So you can save that bit of boilerplate for someone else. As far as defeasibility of restraint and the standard of strict scrutiny it has nothing to do with what sits well with me. It has to do with whether in fact there has been a history of opression. Actually, I’m not a legal scholar and it may be more complicated than that. But in any case it very clearly doesn’t have anything to do with what sits well with me or anyone else.

        1. Re: jrshipley,

          I don’t think I said anything about “granting” rights. So you can save that bit of boilerplate for someone else.

          You implied it:

          “A right to bare arms is plainly stated. Does it include a right to build a private army with tanks and fighter jets?”

          As far as defeasibility of restraint and the standard of strict scrutiny it has nothing to do with what sits well with me.

          No, what I am arguing is that it can end up being meaningless if one applies his or her own subjective reasons for defending it.

          1. I think the distinction between granting and stating is pretty clear. This is a red herring anyway.

            1. I think the distinction between granting and stating is pretty clear. This is a red herring anyway.

              Yes, but then you go ahead and ask the mother of all irrelevant questions: Does it include a right to build a private army with tanks and fighter jets?

              I am clearly indicating to you your contradiction, and remind you that the Constitution does NOT grant rights, so YES, any person that can afford it can build his or her private army. He or she has that right.

              1. Lots of people have private armies. They are called security companies.

      2. Also, nobody has argued that individuals lose any rights by forming corporations. I’ve seen that repeated over and over and I don’t know where it’s coming from. The question that’s been raised is whether corporations are unique individuals over and above the people that comprise them.

        1. Re: jrshipley,

          The question that’s been raised is whether corporations are unique individuals over and above the people that comprise them.

          No, they cannot be – organizations cannot be a separate entity from the individuals that conform them (the contrary is the collectivist’s main argument in favor of the State). However, the Citizens United ruling does not give any superior rights to corporations, it simply indicates the obvious: That organizations and corporations have the same rights as the individuals that conform them.

          1. They shouldn’t be – that’s why I go with Rothbard – down with limited liability.

            1. Re: Me,

              I happend to agree with Rothbard – why grant organizations something individuals cannot have, i.e. “Limited Liability”? Leave that to contracts and agreements between corporations and their customers, not to some Statist artifice.

              1. I happend to agree with Rothbard – why grant organizations something individuals cannot have, i.e. “Limited Liability”? Leave that to contracts and agreements between corporations and their customers, not to some Statist artifice.

                Limited liability applies to shareholders, not the corporation itself.

                The corporation is unlimitedly liable for all debts.

                1. Michael,

                  But again, the corporation is not a separate entity – why wouldn’t the shareholders be liable for debts as well? They are part of the organization! Again, that can be established by contracts and agreements (so not to scare the shareholders away), no need for some Statist artifice.

                  1. My main issue is in the torts context, as ostensibly LLCs have to notify oher contracting parties of their limited-ness for it to apply. (Not that I don’t think the gov’t shouldn’t be giving them that sortcut) To me the bigger issue is in torts.

                    1. My main issue is in the torts context, as ostensibly LLCs have to notify oher contracting parties of their limited-ness for it to apply. (Not that I don’t think the gov’t shouldn’t be giving them that sortcut) To me the bigger issue is in torts.

                      Corporations only act their their employees (much like government does). The employees who committed the tort and everyone up the chain of command to the corporation itself would be jointly and severally liable for torts. (It works different for government because governments act like liability shields for their employees.)

                      I presently work for World Financial Group as a licensed agent. If I commit a tort during the course of my duties, I will be liable, and everyone up the chain of command to the CEO to the corporation itself will be liable as well.

                  2. But again, the corporation is not a separate entity – why wouldn’t the shareholders be liable for debts as well?

                    Because the creditors did not loan money to the shareholders, but to the corporation. Just like President Barack Obama- or you for that matter- not being unlimitedly liable for paying off U.S. Treasury bonds. (American citizens are essentially shareholders of the United States of America.)

                    They are part of the organization!

                    As a matter of fact, banks and other lenders can insist the CEO put up personal property as collateral for a loan.

                  3. How could that be done through contracts? Without incorporating, the people forming the organization cannot, simply by agreeing with each other, prevent themselves from being liable.

                    The practical reason for having limited liability is clear enough, but as a matter of justice, I see no problem with the idea of investors contributing a certain amount of money in exchange for certain benefits (some measure of control or portion of the profit) without automatically putting everything they own on the line.

                  4. Also, I think that something can be governmental without being “Statist.” The State can choose to recognize limited liability, but very little of what governments do is less imposing than that.

        2. If people have raised that question, what does it have to do with the Citizens United case? If individuals have a 1st Amendment right to freedom of speech (which we do, of course), why wouldn’t they have the right to exercise it in association with each other in the form of a corporation? Regardless of how we look at corporations, they are entitled to the protection of the 1st Amendment: To the extent that a corporation is just an association of people, each person has 1st Amendment rights and may use them in association with others. To whatever extent that it loses the 1st Amendment protection of its members because it is a separate person, independent of those members and not entitled to the protection of their rights, wouldn’t that “person” have to have 1st Amendment rights? If, on the other hand, we claim that the corporation is not a real person (which I think is a pretty reasonable claim to make) in order to support the conclusion that it has no 1st Amendment rights, then shouldn’t we also have to admit that it is an association of real people who do have 1st Amendment rights and are entitled to use them in concert? If that group of people is a “person” for the purpose of denying it the rights of its members but is not a person for the purpose of determining whether it has right of its own, then individuals would lose rights by forming a corporation.

    6. Liberals must play by the rules just like everyone else. The Constitution does not make any group or individual above any other regardless how righteous they feel their cause. And the causes of Liberals have hardly been historically righteous unless one ignores history for that group’s revisionist versions.

      I wouldn’t put too much into “democratic” processes we aren’t a democracy, we never have been, most of the framers had extremely low opinions of democracies. Democracies don’t protect the rights of their citizens, some group will always be abused. There are some democratic elements incorporated into our constitutional republic, but that’s where it ends. The central pillar of our rule is our constitution it’s the very reason we have a judicial branch with SEPARATE and EQUAL powers.

      Once again, it’s our system, we may change the rules, we can make ourselves a monarchy if we wish BUT changes must be made by the rules. Anything else is a coup, which is what has been going on for some time now. Thru the back door.

    7. You forget that many of these “legal fictions” are pretty much prerequisites for any group of people to get together and pool resources to engage in political speech.

      Citizens United wasn’t a big evil for profit corporation, it was a non profit advocacy group just like the ACLU, the Sierra Club, or the NRA.

      Thus even if the constitution distinguishes between speakers, which it doesn’t, campaign finance law was bad law because it didn’t distinguish between groups like the ACLU and Goldman Sachs. A law supposedly designed to stop such big corporations that applies to a small group of people making a anti Hillary movie doesn’t really make much sense does it? Nor does it make much sense when the law is so vague that electioneering speech is impossible to define inviting arbitrary enforcement, or does it make much sense when the regulations that groups must go through to engage in speech are so onerous that they have a chilling effect on such speech. That’s why the court ruled the way it did; and the reason that libertarians are rightly upset with liberals is because they are ranting about big corporations without any mention of the fact that “corporations” include non profit advocacy groups, churches, labor unions, etc.

      I’ll point out that the constitution also clearly protects a right to assemble and associate, the first amendment does not just protect an individual’s right to stand on a soap box with a megaphone. Money is needed to speak, and the only way to finance that speech other than being personally rich or a member of exempted groups like the corporate media or the political parties is to form a group yourself which given our legal system will likely be incorporated. Now you might have a case if you could find a corporation that was buying up all the ad time with the sole intent of blocking others from speaking, but you can’t just create before the fact restrictions on all corporate speech based upon such a hypothetical. That’s like restricting all Muslims when they fly because some Muslims might be terrorists.

  8. Or in other words, REAL judicial restraint means judges restrain themselves from considering the Constitution a “living document” and reading meanings into it that have no relationship to the words contained therein as understood by the ratifiers.

  9. Judicial restraint is one of those semantic nullities that means whatever one wants it to mean. Until it has a widely accepted meaning, its use should be regarded as signal that what follows is self-serving and cannot be supported by reasoned argument.

    1. “Objectivity” is also a semantic nullity; “reasoned argument” depends entirely upon those whom one calls one’s “peers”. “Federalism” means at least two different things–I would suspect even more than that, counting upon human ignorance. What, exactly are you saying?

  10. Gallup: Majority of Democrats “Have A Positive View of Socialism”:

    http://freemarketmojo.com/?p=6809

    1. And in other breaking news, the sun rose in the east this morning.

      1. The interesting statistic is the one showing that 20% of “conservatives” view socialism positively…

      2. +1

  11. RI man charged with operating on his own dog

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    BARRINGTON, R.I. (AP) — A Rhode Island man who says he couldn’t afford veterinary care for his dog has been charged with illegally operating on the pet.

    Alan MacQuattie recently removed a cyst from the leg of his 14-year-old Labrador mix. The dog was operated on again by professionals to deal with an infection from the first surgery.

    E.J. Finocchio, president of the Rhode Island Society for the Prevention of Cruelty to Animals, calls the surgery a “heinous crime.”

    Court records show MacQuattie pleaded no contest last week to misdemeanor charges of animal cruelty and unauthorized practice of veterinary medicine. He was allowed to keep the dog.

    MacQuattie has not returned a call seeking comment Friday. But he tells WPRI-TV, which first reported the surgery, that he didn’t think he had done anything wrong.

    http://hosted.ap.org/dynamic/s…..SECTION=US

    1. Is he seriously named Finnochio? That’s hilarious.

      1. Better than frocio, no?

        1. I think a lot of people immigrated to the US to escape funny sounding names.

    2. But he tells WPRI-TV, which first reported the surgery, that he didn’t think he had done anything wrong.

      That’s because he didn’t – only the government’s agents think he did, because they are obtrusive busybodies. The dog is his property.

      1. You can kill and eat your own pig, but it’s a crime if you set it’s broken leg.

          1. I think you were right: as a contraction, it is “it’s.”

        1. That’s how it is in this post-PETA country.

          Whenever I watched Animal Cops, I always found it interesting that the cops always confiscated the animals from and arrested only the poorest of the owners, those that clearly could not defend themselves. The government does not seem to go after people that know their rights and could embarrass the State by fighting these so-called “animal rights laws” in the courts as unconstitutional (which they are, since they violate the 4th Amendment.)

          Imagine how it would look if a brave individual fought the State on this one and wins – the State’s ideological base would revolt!

          1. How do animal rights laws violate the 4th amendment? Did you mean they potentially violate the takings clause of the 5th amendment? The 4th amendment doesn’t apply to the validity of the substantive underlying law, just the methods used to search pursuant to alleged violations.

            1. Re: Me,

              Glad you asked. Here it goes, and learn:

              How do animal rights laws violate the 4th amendment? Did you mean they potentially violate the takings clause of the 5th amendment?

              Animal Right Laws have nothing to do with rights (animals cannot have rights since these exist by virtue of havig reason and the ability to act with purpose); they are nothing more than property transfers from the individual to the State. Since these transfers are NOT done with any due process or compensation, then they totally violate the 4th Amendment protection of your property.

              The 4th amendment doesn’t apply to the validity of the substantive underlying law, just the methods used to search pursuant to alleged violations.

              Then you totally misunderstand the private property protection clause of the 4th Amendment. The Amendmnet states that people are to be secure in THEIR PROPERTY unless a search warrant is issued or after due process (e.g. a court decision). Animal Rights Laws cannot be construed as “due process” but as an actual redefinition by the State on what is property and what it is not. Since the State can use this new “definition” to make you unduly UNSECURE when it comes to YOUR PROPERTY (in this case, YOUR animals), then the State violates the 4th Amendment every single time the Animal Cops come to your house to confiscate your animals or arrest you for so-called “animal cruelty.”

              The State cannot be in the business of redefining what is property and what it is not (as in the Dred Scott case), in order to CIRCUNVENT the limitations imposed by the 4th Amendmnent: Saying that an animal is suddenly NOT property does not pass muster.

              1. That seems a little left field, but thanks for hipping me to cases like Presley v. City of Charlottesville.

              2. “Me” (and I am not “Me,” by the way) is correct. The Due Process clause is in the 5th Amendment (as is the “takings” clause), and the 4th Amendment does not disallow all laws concerning people’s “persons, houses, papers, and effects.” It requires that those things be secure against unreasonable searches and seizures, and it limits and regulates the use of warrants.

                Also, where you reference Dred Scott v. Sandford, you are not using it in support of your argument, are you? Slaveowners did claim that restrictions on slavery in the territories would unlawfully deprive them of their property, but I don’t want to assume without asking that you were intending to argue that they were right.

  12. Judges should be restrained when they vote against Exxon’s profits and completely unrestrained when they vote for Exxon’s profits.

  13. Damon Root gets it exactly right by emphasizing the specific role of the judicial branch: to guard against the tyranny of the majority. Commenters have tended to wander off that element of constitutional law. I’m not a lawyer, but as I reverse-engineer the three-branch system established by the Constitution, I don’t see any other purpose for the judicial branch than that.

    1. I think that the purpose of the judicial branch is to guard against the potential error, apathy, or malice of the other two branches (in following the Constitution). All three branches guard somewhat against the tyranny of the majority. The judicial branch (at least in the federal government) is removed from the control of the majority by an additional step, but I think that the purpose in that is more to limit the authority of the executive and legislative branches than it is to make the judicial branch even more distant from the people.

      I remember someone from Reason (and I have a feeling that it was Damon Root in that case, too) writing something on this topic before, but I also remember someone in the comments pointing out that the author had misinterpreted the conservative objections to “judicial activism,” “legislating from the bench,” and whatever else it might be called. The real divide is not between those who think that judges should do more and those who think that judges should do less, or between those who think that the majority should be trusted and those who think that the majority should not be trusted. The divide is over how judges should decide whether and when to act, and if so, how to act — by following and applying the Constitution or by independently making up “constitutional” law of their own. Even though a certain amount of legitimate disagreement can exist over the meaning of a constitutional provision, one of the two major schools of thought on constitutional interpretation is so far from imposing honesty or plausibility on its decisionmaking process that the disagreement can be described very simply: it is the idea that the Constitution should be applied vs. the idea that the Constitution should be invoked by courts as they create and manipulate “constitutional” law of their own making and design.

      1. I found it. It was in the comments to this: https://reason.com/archives/200…..tcontainer

  14. “Every major proponent of judicial restraint has emphasized that the courts should defer to the will of the people and their representatives, and therefore vote to uphold the vast majority of duly-enacted laws”

    Oh piss off with this. The job is to interpret and uphold the Constitution. If they were to just go with the majority then Jim Crow laws would have been on the books much longer than they were.

    Get this through your fucking head, WE ARE NOT A DEMOCRACY. We are a REPRESENTATIVE REPUBLIC. Just because more people shout about something doesn’t fucking mean it’s right.

    For fucks sake, enough with this shit.

  15. No terms has been more misunderstood than “judicial restraint” and “judicial activism.” Correctly used, it means what John Marshall understood it to mean: understanding the difference between issues that the Courts are competent to address (e.g., whether a statute is consistent with the constitution) and the issues best left to the political branches (e.g., what level of tariffs should we set; should we sign a trade agreement with Bolivia). These days the terms “judicial restraint” and “judicial activism” are little more than shibboleths that are lobbed back and forth as it suits the needs of whoever is lobbing them.

  16. Eek, my grammar is good…

  17. Well, isn’t the SCOTUS just a part of the lawmaking process as the other two branches? Then whence comes the cries of “judicial activism?”

    1. Did you fail civics? The SCOTUS doesn’t create law, Congress does. Maybe you should go back to the 5th grade.

  18. Corporations can not issue comments in the last few days before and election unless they buy ink by the barrel. Then they can go right into the voting booth with you under your arm.

    1. Which leads to the ironic result if corporate freedom of speech rights were formally limited to the press that advertising supported business could infuence elections but businesses that advertise could not. It’s silly to require money be laundered through the New York Times, NBCU or Fox News. Get the $$$ source right out on the table.

      When one considers, for example, the business conglomerate operated by no less than Ben Franklin, it’s clear that the founding fathers understood that organized businesses were/are the purveyors of protected speech.

  19. The point that a lot of commentors are missing is that “legislative judge” is an oxymoron. Judges can’t pass legislation. They are only able to do one of three things:
    1. Settle disputes over court proceedures
    2. Interpret exactly what is meant by imprecise wording in a law.
    3. Settle disagreements between contradictory laws. (or a law and the constitution.)

    The alleged “judicial activism” comes from decisions where judges compare the constitution to laws that are passed and when there is a dispute they favor the constitution (as they should.)

    People need to remember that we do NOT live in a straight democracy. We live in a CONSTITUTIONAL republic/democracy hybrid. The constitutional part means that the legislative majority rightly can’t pass laws that violate the constitution.

    I’m glad to have our constitutional form of government because it provides stability against the whims of the 51% majority.

    1. That’s the bit I don’t understand about statements about judicial activism vs. upholding the laws enacted by the people’s representatives: Aren’t constitutional provisions also laws enacted by the people’s representatives? So how is it activism to uphold those bits of law against bits of laws inferior to them?

    2. “Legislating from the bench” refers to the application of novel rules of law that are not truly based on the Constitution (though the Constitution is wrongly invoked in support of them) or Acts of Congress. As precedent, those rules then effectively become law, since they are prospective, binding rules of general application.

      The criticism is not that courts are applying rules, when they do this. The criticism is that the rules that they are applying did not previously exist and are not plausible interpretations of either the Constitution or laws enacted by Congress. In doing this, the courts violate the Constitution, and unlike laws passed by Congress, we can only correct their errors by 1) amending the Constitution or 2) working over the course of a generation or more to (politically) alter the composition of the Supreme Court.

  20. The judge is using the excuse that judicial restraint is respecting “the settled law of the Land.”

    The trouble for his arguement is that there is already a way to create ACTUAL settled law of the land. It’s called an Amendment to the Constitution. Until then, it is not settled and their points are completely invalid.

    The argument over this is over. If you can successfully change the constitution then and only then is it “the settled law of the Land.” Anyone arguing otherwise is a retard.

  21. “While they’re wrong about the outcome of the case”

    Please explain…at all. Or remove this weird comment from the article.
    I have no idea what you’re referring to, which “they”, and whether or not you are talking about their predictions of the future (which presupposes you have seen the future).

    1. It means that they’re wrong in their belief that the case was wrongly decided. “They” are the people who think that the case was wrongly decided.

  22. There exists no person that I am aware of that actually believes in judicial restraint when they are against the law in question.

  23. It’s fascinating how liberals will simultaneously argue for a “living” Constitution and “dead” legal precedent (at least the precedents they like). They seem to have that formula precisely backwards.

    1. It’s fascinating how liberals will simultaneously argue for a “living” Constitution and “dead” legal precedent (at least the precedents they like). They seem to have that formula precisely backwards.

      How many liberals defend Baker v. Nelson ?

  24. Since when is upholding the 1st and 14th amendments judicial activism. Rights of assembly (presumably including association), petition, and free speech are the basis for the will of a democratic majority to exercise their desires through governmental action. But those same rights guarantee that the minority has a fair and free chance to persuade sufficient numbers of their fellow citizens to change sides in the eternal debates and form a new majority. Lincoln may have freed the slaves(de jure) but it was the free and open discussion of the meaning of civil rights that created a new majority dedicated to de facto equality ( or at least advanced the cause to our present state of affairs. God (or Gaia) help us if we are denied that free option of open discussion by all parties. If Soros may create multiple entities with the expressed intent of changing our society, those of us who disagree should at least have an opportunity to pool our hundreds of dollars to challenge his millions.

  25. Money buys elections. Here in Illinois a wife beater-pawn broker-steroid addict was elected as the democratic canditate for lieutenant governer simply because he poured millions into his campaign. Why should corporations be allowed to pour millions into campaigns to elect the candidate of their choice, generally those of a republican ilk. This spells the end of democracy or what little was left of it.

    1. You do realize that Citizens United had nothing to do with campaign contributions, right? RIGHT?

      1. citizens united is intricately related to the issue of campaign contributions. what’s the difference between giving a candidate money and spending that same amount of money on an ad that says vote for him?? no difference actually

        1. So your argument is that the ruling is bad because it wouldn’t prevent something that happened under the law that was overturned? Yeah, that makes sense.

          Do you realize that the government argued that it could ban a book exposing Mr. wife beater-pawn broker-steroid addict if it contained a single line advising not to vote for him, or to vote for his opponent? Do you realize that the government argued that it had every right to prevent said book from being published or sold in bookstores or online?

  26. Don’t progressives think “judicial activism” is a good thing? Oh, sorry, that was last month.

  27. OK, judicial activism now OK.

    Let me guess–if Thomas, Scalia, Roberts, Alito or even Kennedy has a fatal heart attack tonight, the answer will be different tomorrow.

    Jesus.

  28. Why don’t we just call judicial forecasting and activism what it is, judicial planning. It is the brother of economic planning. 9 people sit on a court and project how laws will affect the whole society. We know that fails in free markets, which law is unquestionably a part of. Judicial planning must go!

  29. If we start with the assumption that the U.S. Constitution maximizes individual liberty then the SCOTUS should uphold the Constitution and overturn any rulings that come before it that are at odds with the U.S. Constitution. Similarly the SCOTUS should reaffirm all rulings that come before it that are consistent with the U.S. Constitution.

    It seems to me that that is the real issue, not one of Judicial restraint vs judicial activism.

  30. has nobody here ever heard of stare decisis?
    the point is that just because one court disagrees with a previous decision it can’t just overturn it. it needs a special reason to decide that the precedent needs to be overturned, i.e. changes in technology or obvious racism in the previous decision. no such reason to overturn austin v michigan COC exists.

    anyways, that’s my real problem with the case, it’s not just overturning a law, it’s the supreme court overturning a hundred years of its own precedent.

    it’s NOT a question of judicial activism, it’s a question of Stare Decisis, which if you never heard of then you have no business relaying your completely uninformed opinion.

    1. The Supreme Court did not ignore 100 years of precedent, the decision that was overturned was 20 years old.

  31. “If we start with the assumption that the U.S. Constitution maximizes individual liberty”

    that’s a completely wrong assumption. in fact, the constitution was a step down from the articles of confederation in terms of individual liberties
    while it is true that there is great emphasis on individual liberties in the constitution, it is absolutely false to say it even tries to maximize it.

  32. finally, the litigants, citizens united didnt even argue over constitutionality, they argued that current laws didn’t apply to their case. the conservative majority of the court took it upon themselves to question its constitutionality,
    simply put, the court was outside its jurisdiction

    1. simply put, the court was outside its jurisdiction

      If that’s not the dumbest statement in this thread, it has to be close.

  33. First amendment rights for corporations? Don’t you need vocal chords to speak? People have vocal chords, not corporations. So who speaks for corporations? A handful of members on the corporate board of directors that’s who. These directors alone speak on behalf of the corporation with no input from the stockholders nor employees of whom they represent. They secretly use stockholders money to bribe our politicians with lucrative campaign contributions if they agree to play their game. Otherwise they threaten to defame them with a slanderous media blitz of lies and innuendo. They launder millions of dollars of “contributions” through 527s, organizations for the purpose of hiding the true source of their corporate contributions from their stockholders and the public. They distort facts to convince the public that it’s in their best interest to support their candidate of choice while cloaking their real motives. They give these 527s names like Citizens United or CPRights (Conservatives for Patient’s Rights). They falsely represent themselves as advocates for us, the people of this country. Nothing is further from the truth. Billions of dollars of windfall profits are at stake, all at our expense. In any other context, these actions would be considered fraud and highly illegal. But not for them.

    So we look to congress to come to our rescue and fix this injustice. But.. they are not about to slaughter the cash cow that will fund them through their next election cycle. Clearly we can’t look to the Supreme Court to protect us either. So what’s the solution?
    – We need to stand up and demand true campaign reform.
    – Support an amendment to change the constitution to limit first amendment rights to people, not corporations (H.J.RES.74).
    – Demand that laws which allow corporations to secretly hide behind 527s be repealed.
    – Demand laws that require corporations to disclose to stockholders and the public the dollar amounts they give to influence elected officials or elections.
    – Don’t buy into negative campaign ads.
    – Let your TV networks know you don’t want to see ads from these organizations.
    – And be informed about the voting habits of your government representatives at the local, state and federal levels.

    If corporate board members want to organize and use their own funds to promote their ideas, that’s fine. But to use money that belongs to others for political purposes without their consent or knowledge is fraud. Let’s clean it up.

    1. Sieg Heil!!

  34. If the Supreme Court were to practice judicial restraint as I understand it in this article there would be no need for the SC in the first place. My preference is that the SC could practice restraint in items not covered by the constitution and all others shall follow it, and even turn over 100 years worth of laws if deemed to be unconstitutional.

  35. N.Y. Democrat is now embracing a communist:

    http://biggovernment.com/mvadu…..van-jones/

  36. jack: “First amendment rights for corporations? Don’t you need vocal chords to speak? People have vocal chords, not corporations. So who speaks for corporations?”

    Typically washed up over the hill hasbeen actors and sometimes Peyton Manning since Tiger Woods isn’t speaking much these days.

  37. If the Supreme Court were to practice judicial restraint as I understand it in this article there would be no need for the SC in the first place. My preference is that the SC could practice restraint in items not coveredreplica omega by the constitution and all others shall follow it, and even turn over 100 years worth of laws if deemed to be unconstitutional.

  38. First amendment rights for corporations? Don’t you need vocal chords to speak? People have vocal chords, notreplica omega corporations. So who speaks for corporations?”Typically washed up over the hill hasbeen actors and sometimes Peyton Manning since Tiger Woods isn’t speaking much these days.

  39. essor Richard Hasen, “this is an activist court that is well o

  40. Eh bien, je suis un bon poste watcher vous pouvez dire et je ne donne pas une seule raison de critiquer ou de donner une bonne critique ? un poste. Je lis des blogs de 5 derni?res ann?es et ce blog est vraiment bon cet ?crivain a les capacit?s pour faire avancer les choses i aimerais voir nouveau poste par vous Merci
    ?????
    ????? ???

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