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).)