Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 1, 2010

Perry v. Perry on Citizens United?

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.


Garnett, Rick | Permalink

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Thanks for the interesting exchange. It may be worth emphasizing Rick's characterization of Professor Perry's claim in the book as a "modified" Thayerism (or, perhaps "Ely-side-constrained" Thayerism...?), since I do not think that there is anything in Thayer's own view that would demand less (or no) deference based on the nature of the right at issue.

My own view, for what it's worth (and noting my general admiration for Professor Perry's work, of course!) is that Professor Perry's standard for side-constrained Thayerism (like Ely's own theory of the democracy-enhancing role of courts) rapidly becomes the exception that swallows the rule if taken seriously. I'm also not certain that I agree that there is something necessarily more important -- and therefore something that provides greater reason for rejecting Thayerism -- about the sorts of values implicated by "speech, press, and assembly" than there is about the values implicated by the free exercise of religion or protection against unreasonable searches and seizures or "fundamental" due process rights or equal protection, and so on, particularly when these values are assessed "in the long run." In sum, I agree with the MOJ Perry more than the "Constitutional Rights" Perry.

Posted by: Marc DeGirolami | Feb 1, 2010 11:15:29 AM

As an addendum to my post above, it is perhaps noteworthy that when Thayer speaks of a truly "monstrous" piece of legislation -- the kind that really deserves to be stricken because it is so manifestly unconstitutional as to leave "no room for reasonable doubt" -- he refers not to a free speech restriction, but to "an Act authorizing conviction for crime without evidence, or securing to the legislature their own seats for life." And later: "If a legislature undertakes to exert the taxing power, that of eminent domain, or any part of the vast, unclassified residue of legislative authority which is called . . . the police power, this action must not degenerate into an irrational excess, so as to become, in reality, something different and forbidden -- e.g., the depriving people of their property without due process of law[.]" It is the nature of the law, not the nature of the right, that matters for Thayer.

Posted by: Marc DeGirolami | Feb 1, 2010 1:21:59 PM