Sunday, January 31, 2010

Genius and courage

If the framers of the United States Constitution could have lived to see the events of last week, they would be congratulating themselves on a job well done.

Supreme Court Justice Anthony Kennedy led a 5-4 majority to rule in the case of Citizens United v. FEC that the First Amendment does not permit a law that criminalizes campaign ads paid for by corporations and similar groups.

Justice Kennedy wrote that the law in question, the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act), was having a "chilling effect" on political speech. The law and the regulations following from it were so complex and uncertain, Justice Kennedy wrote, that they amounted to a prior restraint on speech. "A speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak," he wrote, exactly the sort of government power "that the First Amendment was drawn to prohibit."

The people who currently hold government power reacted to this decision with extraordinary hostility.

"This week, the United States Supreme Court handed a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence," President Barack Obama intoned in his weekly radio/Internet address. "This ruling strikes at our democracy itself," he said, "I can't think of anything more devastating to the public interest."

Over in the House of Representatives, Speaker Nancy Pelosi said the decision will allow "special-interest dollars to dictate the details of public policy."

On the other side of the Capitol, Senator Chuck Schumer said he will hold hearings to look for a way to get around the Supreme Court's decision.

Speaker Pelosi said she's looking at "legislative options available to mitigate the impact of this disappointing decision."

And President Obama said he has "instructed" his administration "to develop a forceful, bipartisan response to this decision."

The president was so angry at the Supreme Court that he lashed out at the the justices during his State of the Union address, accusing them to their faces of believing that "American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities." He said he was "urging Democrats and Republicans to pass a bill that helps to correct some of these problems." [That was milder than his written speech, which read, "to pass a bill that helps to right this wrong."]

Of course, the First Amendment can't be overturned by an act of Congress.

It was the genius of the Founders to protect our liberty by dividing and limiting government power. "Ambition must be made to counteract ambition," they wrote in Federalist No. 51, which is titled "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments."

It was published in 1788, but it's still in what book dealers call "very good" condition.

Federalist No. 51, written by Alexander Hamilton or James Madison, says the "preservation of liberty" requires that each branch of government "have a will of its own," with the members of each department having "as little agency as possible in the appointment of the members of the others." The framers agreed to "some deviations" from this principle, one being the appointment and confirmation of judges. Because of "peculiar qualifications being essential in the members" of the judicial branch, the most important consideration was "to select that mode of choice which best secures these qualifications."

The safeguard of liberty was "the permanent tenure by which the appointments are held in that department, [which] must soon destroy all sense of dependence on the authority conferring them."

That's exactly what you saw on television during the State of the Union address: Supreme Court Justice Anthony Kennedy and five of his colleagues calmly dismissing a presidential rebuke and the congressional standing ovation for it.

It's the framers' design. The Supreme Court doesn't answer to Congress or the president.

Still, it takes courage to stand up for the First Amendment in the face of withering criticism from those who find freedom of speech to be an obstacle to their plans.

"It will be that much harder to get fair, common-sense financial reforms, or close unwarranted tax loopholes that reward corporations from sheltering their income or shipping American jobs off-shore," President Obama seethed in his remarks about the Citizens United decision, "It will make it more difficult to pass commonsense laws to promote energy independence because even foreign entities would be allowed to mix in our elections. It would give the health insurance industry even more leverage to fend off reforms that would protect patients."

He's angry because the Supreme Court threw out a law that would have kept banks and insurance companies and oil companies and other corporations from running ads to give voters their side of the story when they are threatened and attacked by progressive politicians -- "men who use force to seize the wealth of disarmed victims," in Ayn Rand's words.

Corporations are no longer disarmed in the 30 days before a primary election because Justice Anthony Kennedy took a courageous stand for freedom of speech, and not for the first time. In 2002 he led a 5-4 majority in Ashcroft v. Free Speech Coalition, striking down a law that banned "virtual" child pornography, computer-generated images created without real children.

The withering criticism of that decision came from the opposite side of the political spectrum.

Justice Anthony Kennedy deserves credit for defending freedom of speech without fear or favor.

Incidentally, Austin v. Michigan Chamber of Commerce, the 1990 decision that was overruled by Citizens United, is a good example of the trouble caused by the Incorporation Doctrine, the Supreme Court's 20th-century project of applying some parts of the Bill of Rights to the states. Prior to the invention of the Incorporation Doctrine, the state of Michigan would have had a perfect right to restrict freedom of speech.

That's because the Bill of Rights was intended to apply only to the federal government, not to the states.

It was 1925, in the case of Gitlow v. People of State of New York, when the Supreme Court first suggested that the U.S. Constitution required the states to guarantee freedom of speech and the press. As late as 1922 the Court held that the Constitution "imposes upon the States no obligation to confer...the right of free speech."

Over time, the Supreme Court developed its theory that certain rights are so fundamental to the concept of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process to any person.

It gets a little tricky when the Court tries to explain which rights are "fundamental" and which ones are not. It gets even trickier when the justices cut the states some slack and allow that there may be a "compelling state interest" justifying the law, and as long as it's "narrowly tailored" it's probably constitutional.

In the now overruled Austin case, the Supreme Court held that "Section 54(1) of the Michigan Campaign Finance Act," which prohibited corporations from using their general treasury funds for campaign ads, did not violate the First Amendment because there was a "compelling state interest" in "preventing corruption" and the law was "sufficiently narrowly tailored to achieve its goal."

When the Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act in the 2003 McConnell v. Federal Election Commission case, the Austin decision was cited as a precedent.

The made-up balancing tests that the Supreme Court uses to apply the First Amendment to the states -- fundamental rights, compelling state interests, narrowly tailored laws -- were being applied to a law made by Congress, even though the First Amendment says that when it comes to freedom of speech, "Congress shall make no law."

That's the muddle that has been made by the Supreme Court's ever-evolving and constitutionally unauthorized Incorporation Doctrine.

"The biggest stretch that the Court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states," Justice Antonin Scalia told an audience at the American Enterprise Institute in February, 2006. "Nobody ever thought the Bill of Rights applied to the states. It begins 'Congress shall make no law.'"

But Justice Scalia would rather not talk about it.

"I'm not about to tell the people of New York state or of any state that their state government is not bound by the First Amendment," he said. "Okay?"

He's not really asking.

If we were following the Constitution as written, Michigan could ban corporate spending on campaign ads, and New York could require terrorists to testify against themselves, and California could ban jury trials, and Alabama could segregate its public schools. That's our federal system, as written, and as it used to be before the Incorporation Doctrine.

We have spent the last 75 or so years allowing the Supreme Court's decisions to substitute for constitutional amendments. That's why you hear about "test cases" going to the Supreme Court instead of "ratification debates" going on in state legislatures.

It's a risky practice. We're always just a 5-4 decision away from somebody's freedom being overruled.

Constitutional rights are most secure when they're in the plain language of the Constitution.

And even then it takes a Herculean effort to keep them.

Thanks, Justice Kennedy.

Copyright 2010

Source note: The Ayn Rand quotation is from Atlas Shrugged; it can also be found in her book, For the New Intellectual, in "The Meaning of Money."

Editor's note: You might be interested in the earlier post, "Rewriting the First Amendment." For more information and complete source notes on the history of the Incorporation Doctrine, read "How the First Amendment Came to Protect Topless Dancing," free online at and also published as the appendix to the novel, The 37th Amendment