The Supreme Court held last week that corporations are akin to people under the First Amendment and are thus equally guaranteed the right to spend money on political advertisements. As many commentators have recognized, this will undoubtedly transform the way in which the democratic process operates by giving political candidates access to vast corporate treasuries and thereby giving corporations a near puppeteer’s control over American democracy.
Whether this decision is in line with the Constitution is debatable. On the one hand, the text of the First Amendment is clear that “Congress shall make no law abridging the freedom of speech.” If political expenditures constitute speech then there’s nothing in the text that differentiates between people and corporations. On the other hand, it’s not cut and dry that such expenditures constitute speech, although the Supreme Court has long said that they do. When I think of what the “freedom of speech” protects, I see a protester on a soapbox criticizing the government, a “lone pamphleteer” distributing a controversial essay, and, yes, even pictures of Barrack Obama in Joker makeup. These are the quintessential examples of free speech. The point of the First Amendment was, in my view, to limit the government’s ability to act as a form of thought police.
Whatever your take on what the Constitution actually protects, it is certainly an imperfect document. I’ve written many times on this blog that the Constitution doesn’t protect a right to same-sex marriage. But I’ve never said that this is a good thing. When the Constitution doesn’t do the job, the only constitutional remedy is a constitutional amendment.
In response to Citizens United, Lawrence Lessig has proposed just that. From Change Congress:
Such an amendment must secure not one side in a political debate against the
other. It must instead give Congress the power to support its own elections in a
manner that secures its own independence. Members in Congress must be, and
must seem to Americans to be, free of any dependency upon lobbyists, or
fundraisers, and instead be dependent simply “upon the People.” We need an
amendment that gives Congress the power to secure this independence.
I encourage anyone to read the full essay here. It’s stirring, moving and, most importantly, convincing. There really is no good reason why Americans should settle for a political system that incentivizes corruption and disincentivizes bonafide leadership.
The Copenhagen talks have been in the news the last couple of weeks. The President just today announced a nonbinding agreement between various governments to pursue measures designed to mitigate rising global temperatures.
I am probably the least knowledgeable person on this issue in the world and I truly have no real stance. All I know is that a bunch of people say that human-induced global warming is fact, while others say that the jury is still out. It’s pretty hard for someone to have a confident opinion in such a climate.
One thing I am pretty confident in, however, is that temperatures have fluctuated dramatically throughout Earth’s history – long before the alleged drivers of human-induced global warming existed. I think this video sums it up pretty nicely for anybody who’s curious:
I’m sure there’s a scientific reason as to why we should think that our actions are what are driving the current hockey stick. But I can’t help but think it would take a pretty persuasive argument in the face of these statistics.
The Tiger Woods fiasco is literally getting worse by the minute. The tally keeps rising and now golf is left without its superstar “indefinitely.” It’s without a doubt a tragedy for all involved. But what bothers me more than Tiger’s “transgressions” is our insatiable thirst for them; our collective salivation triggered by celebrity suffering.
Yes, it’s certainly very hard to sympathize with Tiger in light of what he’s done. His current predicament is a self-inflicted wound. But why is this anybody’s business? We often forget that celebrities and their families are real people that face many of the same hardships as everyone else. I don’t think what Woods and his family are going through is any less painful just because of who they are. The difference between someone like Tiger and someone like me is only relative. I highly doubt that, in the midst of all of this, Tiger is thinking to himself, “Well, at least I’m still Tiger Woods.”
The lack of privacy here is stunning. It can’t be justifiable just because Tiger is who he is and did what he did – I’m not sure that Tiger’s wife is any less humiliated by all of the coverage than Tiger himself. Not to mention that he does have children who will be old enough one day to understand all of this. And let me be clear: it makes little sense to blame the media entirely, although it’s inevitable that Tiger and others will. The media only provides what’s in demand. If people turned a blind eye and a deaf ear to these types of stories, then coverage of them would dwindle. But considering the sheer magnitude of the coverage of this story, I suppose this appetite is human nature.
I’ve recently been read a couple of books by Richard Posner and Cass Sunstein – two of the most prominent legal thinkers alive today. In so doing, I came across a noticeable void in their respective discussions about constitutional law: neither of them provides insight into what the philosophical purpose of a constitution actually is. Posner spends the majority of his discussion on the pretextual nature of judicial philosophies, while Sunstein seems to explicitly state that constitutional law is about achieving desirable results rather than adhering to what interpretation requires.
Yet the question of whether judicial philosophies are merely custom-made pretexts for individualized and desirable results is irrelevant to the inquiry of whether a judicial philosophy is in fact correct and desirable. And the focus on substantive results and consequences, while certainly an appropriate consideration when interpreting vague, ambiguous, and ancient constitutional text, does not belong at the forefront. What does, in fact, belong at the forefront becomes clear when the purpose of a constitution is considered. This inquiry causes the American system of government to emerge with better clarity. What we see is an organized society whose charter does not call for a permanent and authoritarian form of change through manipulative interpretations of its text, but rather popular change through the democratic process of law-making; laws that can compromise, change over time, and represent the voice of the citizens that they are created to rule.
A constitution is a limited set of binding principles designed to endure through changing times. The key words here are (1) limited, (2) binding, and (3) endure. Because a constitution represents the birth of an organized society, the principles it addresses are the most basic and fundamental aspects of how the government is designed to operate. Such basics are limited in the sense that they cannot establish what they do not address. Notwithstanding Sunstein’s refusal to acknowledge what the word “interpretation” means, it certainly cannot mean seeing something that is not there.
A constitution is binding in the sense that society must follow its dictates. If a constitution could be readily disregarded by succeeding generations, this would run counter to the concept of organized society. This concept goes hand in hand with the philosophical necessity that a constitution should endure. If a constitution’s original meaning does not endure, then its purpose and utility are stripped. A constitution’s original meaning must be preserved in order for the document to endure; if its words were permitted to change over time, it would not be an enduring charter for the functioning of government, but a tool for manipulation in an effort to effect change. But a constitution is not designed to facilitate change; it is designed to impede change. Individuals may wish for “due process of law” to include the right to smoke marijuana or to solicit prostitutes. But such basic national principles must mean what they were designed to mean, not what a portion of society would like them to mean.
Many people erroneously associate originalism and other forms of strict interpretation with a lack of progress. They argue that such interpretations would “take us back to 1789.” But these arguments dramatically misconstrue the consequences of strict interpretation and, simultaneously, how American federalism operates. The application of a minimalist form of originalism would simply remove the constitutional justifications for some of the country’s most polarizing and controversial issues. For instance, the reversal of Roe v. Wade would place the issue of abortion in the hands of either federal or state legislators. Congress could pass a right to choose law, or, alternatively, the individual states could write their own laws on the matter. While this would create a broad array of state laws addressing abortion, leaving some of the country’s citizens displeased with others, such a result would at least be a democratic one. Uniformity is a desirable goal, but not if it’s one side of a divisive issue imposing its view on the rest of the country.
Originalism is thus a promoter and facilitator of democratic progress; a form of progress that is a hallmark of our constitutional scheme. Societal advancement on controversial matters is best left to the People through the exercise of their democratic rights. Most importantly, such progress is worthy of confidence, as we can be sure that it is the People themselves who are at the wheel and effecting a desired change, not a “governing caste that knows best.”
I recently had a discussion with a friend about Lawrence v. Texas. I explained to her that, in Lawrence, the Supreme Court held that laws banning homosexual sodomy were unconstitutional. I was curious to know what she thought and asked her whether she agreed. Her immediate response was that the Supreme Court was 100% right and that laws like that are clearly unconstitutional. What amazed me about her response was that there was no inquiry into what the Constitution actually said, or upon what provision the Court’s holding was based. I realized then that when she said “laws like these are unconstitutional,” she was basically saying “I don’t like these laws.” In other words, whether something is unconstitutional depends, to her, on her subjective beliefs of right and wrong.
This type of thinking is not unique to my friend. It is prevalent in American society. Too often we decide that certain laws or policies are unconstitutional based solely on our individual moral compasses. But whether something is unconstitutional must depend on what’s contained in the document, not on what we think it should contain.
Consider the many times courts upheld slavery in the pre-Civil War era. Since the original Constitution explicitly sanctioned slavery through the Three-Fifths Clause, the Importation Clause, and the Fugitive Slave Clause, were courts wrong to uphold the institution, knowing full well the horrors of slavery? This question still remains in other forms today and can be stated in more general terms: is it the Court’s job to uphold the Constitution, no matter how undesirable the results, or is it the Court’s job to exercise its own ideas of right and wrong?
There have been many incidents in American history where an originalist holding would have resulted in upholding horrific laws such as school segregation, discriminatory laws against women, and laws that banned homosexual sodomy (I believe that there is an originalist argument in defense of Brown v. Board of Education, but I will assume in this paper that an originalist approach would have resulted in upholding school segregation.). When the Court is faced with such cases, it must decide whether to uphold undesirable laws that have strong justifications in the constitutional text or to aggressively strike these laws down as the product of a “living constitution,” complete with “evolving standards of decency.”
But is the substantive change more important than the process through which it comes about? Should we want the Court to strike down laws we don’t like at the expense of letting these laws die naturally through the democratic process? After all, Texas was one of the few remaining states with anti-sodomy laws at the time Lawrence was decided. And can we really say that Congress wouldn’t have eventually banned school segregation if the Court didn’t decide Brown?
The point of this painfully long post is that that there is more at stake in these cases than the change sought. The way in which change occurs is just as important as the change itself. This process implicates our bedrock democratic principle of having the People steer the wheel of change through their votes. If the Court exercises its authority on controversial subjects, it strips the People of this basic right. If the Constitution does not speak to a particular subject matter, we should value the right of People to decide for themselves the laws under which they choose to live just as much as we value the change itself. We should value the right of people to pass laws that we might hate if the Constitution so permits. If it means that undesirable laws must endure longer than some would like, then this is the price that we must pay to protect the system itself.
There has been a debate raging in recent years on whether cosmopolitanism – the judicial practice of citing to foreign law and foreign judicial decisions – has a rightful place in American jurisprudence. I argue in this post that it does not.
The problematic aspect of cosmopolitanism is that it seeks to treat foreign decisions as having precedential value for American courts – a jurisprudence that would transform the American legal system by placing foreign decisions, handed down in what may be radically different legal regimes, on par with persuasive authority of sister courts with the same legal function and applying what might be the same or largely similar law. But until a system of global governance emerges – a system where countries are states in a global federalism – or the Constitution is explicitly amended to allow judges to look outside American borders, there is no legal justification for such a jurisprudence.
A global network of judges that cite one another’s decisions in an effort to create a uniform and global consensus on certain issues is, legality aside, a noble ideal. If the world spoke with one voice on human rights and the proper role of government many of the world’s problems would disappear. However, such a global judiciary has to have some sort of legal justification, which to date does not exist. We do not live in a world with a central governing authority that uniformly applies a “global law.” Rather, the world we inhabit is a collection of independent governments with their own judicial systems. Values vary tremendously from state to state, continent to continent. Each individual legal system gives its courts and its judges more or less power. Some systems, like the one in place in the United States, place a Constitution above all else. American judges cannot, in theory, go beyond what the Constitution allows. Other systems, like the Israeli regime, bestow upon judges a power unchecked by a higher law. Take the former Chief Judge of the Israeli Supreme Court Aharon Barak’s jurisprudence as an example. His role is somewhat that of an all-knowing oracle, articulating his version of right and wrong without any constraints but his own conscience. Thus, if an American justice were to find a decision by Aharon Barak persuasive, it would not only be saying that American law is somehow identical to Israeli law, but would also implicitly be saying that U.S. Supreme Court justices and Israeli Supreme Court judges play the same role and are similarly checked and balanced by their individual legal systems. But this is simply not the case.
Persuasion must be legal. There are many ideas that people may find persuasive. I may find persuasive a friend’s investment strategy, his choices of where to get lunch, or his taste in movies. More on point, Congress may find persuasive the law of other nations in passing a similar law in the United States. But the paramount factor in deciding whether persuasiveness is legitimate is the source of the persuasion and the person or body adopting the persuasive idea. It is perfectly acceptable for me to adopt a persuasive idea or philosophy in living my daily life. There is no legal hurdle as I am allowed to be persuaded by anyone of my choosing. But it is another thing for a court with a unique constitutional function to adopt a decision of a much more powerful court with a non-existent constitutional function. The systems are not parallel and the judges possess different degrees of power. The American judiciary is bound by constitutional and statutory text; the Israeli judiciary is seemingly bound by the moral, philosophical, and legal compasses within the individual judges – they owe no allegiance to a higher law that sets the acceptable parameters of their decisions. Our legislative branch may find a foreign law appealing and choose to pass one that mirrors it. But it may do so only if the law is consistent with the limits of the Constitution as well as those provisions that empower Congress to act, namely the Commerce Clause. Since the Supreme Court’s primary function is to apply the law to a limited number of disputes, it has much less, if any, authority to apply what it finds to be persuasive foreign ideas to their adjudication.
At the very least, there would have to be a global consensus on the role of courts and judges for cosmopolitanism to be justifiable. Considering that this has evaded the United States since its founding, it seems unlikely that such a reality would transpire on a global level any time in the near future.
