Friday, January 29, 2010
Citizens United
Something fundamental is being
overlooked in all the brouhaha about SCOTUS’s decision in Citizens United,
and it is this: Unless one assumes—arrogantly
assumes—that there is only one reasonable position on the First Amendment issue
in the case, namely, one’s own position (“Be reasonable. Think
like I do.”)—if one acknowledges that rational, well informed persons of good
faith can *reasonably* disagree about the First Amendment issue—then SCOTUS
should have left the federal legislation alone. Why?
For the compelling reasons famously expressed by James Bradley Thayer in his classic
article in the 1893 Harvard Law Review:
“The Origin and Scope of the American Doctrine of Constitutional
Law”. That point
constitutes a powerful rebuke--indeed, probably the most powerful rebuke--to those members of the majority
in Citizens United who claim to be apostles of judicial
self-restraint. Look, I'm
consistent: I think there's no excuse for the Court's truly imperial decision
in Roe v. Wade! See my Constitutional Rights, Moral Controversy,
and the Supreme Court (Cambridge, 2009).)
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/01/citizens-united.html