Tuesday, February 2, 2010
In his online column today, here, the wonderful Stanley Fish helpfully identifies and elaborates the First Amendment philosophy of the majority in Citizens United and the First Amendment philosophy of the four dissenters. (Do yourself a favor: read the column.) At the end of the column, Fish announces, parenthetically, that his own First Amendment philosophy is that of the dissenters, but he doesn’t assert or imply that the First Amendment philosophy of the majority is unreasonable. It’s just that his own First Amendment philosophy is that of the dissenters. If neither First Amendment philosophy—that of the majority or that of the dissenters—is unreasonable, then why wasn’t the proper decision in Citizens United, pace James Bradley Thayer ("our great master of constitutional law," Felix Frankfurter called him), to reject the constitutional challenge to the federal legislation?
Let me assume what I do not know: that had he been in the Congress, Rick Garnett would have voted against the legislation. John Ely made it clear that *he* would have voted against the legislation struck down in Roe v. Wade. But that didn’t prevent Ely from critically savaging the Court’s decision in Roe v. Wade. See Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale Law Journal 920 (1973), here. It’s hard—believe me, I know it’s hard--to take issue with a constitutional decision of the Court when as a policy matter--as a matter of politics, if you will--you are sympathetic to the result. (Especially, no doubt, when the decision is that of your mentors, role models, whatever.) Where, oh where, are the John Ely’s of today now that we need them? Such clarity, such integrity. John was utterly gripped by the conviction that constitutional law should not be politics by another name. See John Hart Ely, Another Such Victory: Constitutional Theory and Practice in a World Where Courts are no Different from Legislatures, 77 Virginia Law Review 833 (1991). Alas, the Court’s decision in Citizens United is politics by another name.
Rick, in his recent post on Citizens United, here, mentioned—understandably mentioned-- my position on the constitutionality vel non of state refusals to extend the benefit of law to same-sex unions. (Nota bene: the constitutionality vel non *not* of state refusals to call such unions “marriages”, but of state refusals to extend the benefit of law to same-sex unions.) Rick wonders—understandably wonders—whether I am not, Whitman-like, contradicting myself (“I contain multitudes”) in contending that state refusals to extend the benefit of law to same-sex unions are unconstitutional. A wonderful topic for us con law freaks. But a topic for another day …