Monday, February 1, 2010
A few days ago, Michael suggested that the Court's Citizens United decision -- which invalidated certain (both over- and under-inclusive) restrictions on political advertising by corporations and, in so doing, overruled the anomalous Austin decision -- was misguided, and inconsistent with the Thayerian arguments for limited judicial review which Michael proposes in his (very useful) recent book, Constitutional Rights, Moral Controversy, and the Supreme Court. (My review of Michael's book will appear soon in Commonweal.).
I share Michael's view that it is regrettable ("arrogant") when judges (and others) employ the "be reasonable; that is, agree with me" tactic. (It's kind of like the "be bi-partisan, and endorse my position" tactic.) It seems to me, though, that Michael's own book sets out a possible defense for the Court's (in my view correct) decision, in Chapter Six ("Thayerian Deference Revisited"). There are some cases, he says, where the argument for Thayerian deference does not apply, that is, cases where closer judicial review "is likely, in the long run, to enhance the capacity of the citizenry either to deliberate about contested political . . . questions or otherwise to participate meaningfully in the political process." These cases include cases involving regulations of the freedoms of "speech, press, and assembly."
So, it seems to me that one can endorse Perry's modified Thayerian approach and still conclude (reasonably!) that the Court was correct in concluding that the restrictions invalidated in Citizens United were, in fact, unjustified efforts to protect incumbents from being challenged by citizens speaking through the corporate form. (Such an application of Michael's theory seems to me at least as consistent with the theory's premises as is Michael's own conclusion that even a Thayerian Court would rule that the Constitution requires extending the benefits of marriage to same-sex unions.)
For some thoughts about the decision by me, and also by my colleague Lloyd Mayer (an expert in taxation, election law, and non-profit organizations), go here.
Comments are (for now!) open.