Constitutional Beanball: The Supreme Court's Corporate Rewrite of The First Amendment

[marmar]

from OpenLeft:



Constitutional Beanball: The Supreme Court's Corporate Rewrite of The First Amendment
by: Paul Rosenberg

Sun Jan 24, 2010 at 18:00


"This is purely a Bush v. Gore-type grab." - John Dean on "Live from the Left Coast", KPFK ~ 12:08 PST today.


In my previous diary, "Constitutional Beanball" I went to some lengths to describe some contrasting views of how political actors seek to radically change the constitutional order. The reason for doing so was to (a) better understand what was happening with the Supreme Court decision in Citizens United vs. FEC and (b) better understand what is wrong with "liberal" (that is, both actually and apparently liberal) advocates supporting the ruling.

Let me begin by quoting most of a post at the American Prospect by Scott Lemieux of Lawyers, Guns and Money:

* As I said after the oral arguments, I don't have any strong objection to the Court's ruling that the restrictions placed on showing Hillary: the Movie were unconstitutional. Such a holding would be quite defensible even under a legal framework that tried to balance First Amendment interests and the importance of fair elections. The real question was whether the case would be decided in narrow or broad terms, and alas it's very much the latter. The Court overruled both a 20-year precedent permitting greater restrictions on corporate speech and parts of a more recent ruling upholding the McCain-Feingold Act, and has essentially held that for-profit corporations have the same First Amendment rights as individuals.

* On a related note, it seems worth noting again that Chief Justice Roberts's purported "minimalism" -- so often touted by his defenders, including liberals who should know better -- is an empty fraud. At least in this case -- unlike previous campaign finance rulings -- the Court was willing to overturn precedents explicitly. But, certainly, this should serve as a reminder that it's farcical to claim that modern judicial conservatives stand for substantive "minimalism" or "judicial restraint."

* The central line of argument in Justice Kennedy's majority opinion -- that the First Amendment does not permit distinctions based on the identity of the speaker -- is superficially attractive. The problem is, there's no reason to believe that any of the justices believe it. In addition to the examples in Justice Stevens' superb dissent, consider Morse v. Frederick, a decision denying a free speech claim which all 5 of the justices in today's majority also joined. Obviously. Nobody would dispute that an ordinary citizen who unfurled a "Bong Hits 4 Jesus" banner could be sanctioned by the state; the punishment was upheld solely based on Frederick's identity as a student, which meant that his free speech rights had to be balanced against a school's interest in preventing drug use (and could be denied even if there was no plausible argument that his speech actually would promote drug use). If this kind of balancing test is permissible, surely Congress should be permitted to place some weight on the importance of fair elections when considering the First Amendment rights of for-profit corporations.

This brief survey hits a number of high points in terms of basic contradictions between (a) the purported judicial minimalism of Roberts in particular, (b) the purported general abhorrence of "judicial activism" by conservatives in general, (c) the purported respect for precedent by conservatives in general and the actual practice of conservative justices when they can get away with it. It also takes note of the conservative's eager embrace of limiting free speech for (potentially) doper students, but not for cigarette companies, corporate polluters and the like. As Scott notes, this is not mere minor carping, this decision vividly gives the lie to the claim that "modern judicial conservatives stand for substantive 'minimalism' or 'judicial restraint'"--which is, in essence, the core argument that conservatives have been making ever since they blew their tops over Brown v. Education 56 years ago.

The conclusion here is obvious: if substantive "minimalism" and "judicial restraint" weren't the issues, then obviously racism was (I'm shocked! Shocked!) What's more, the entire conservative legal movement is based on lies. This is clearly an element in what I call "constitutional beanball", in contrast to Tushnet's concept of "constitutional hardball." Tushnet's concept essentially presumes good faith disagreement, albeit between (at least potentially) irreconcilable viewpoints. Beanball encompasses-but does not require-cases in which people are bad-faith actors, liars, cheaters, fraudsters, law-breakers, etc. .............(more)

The complete piece is at: http://www.openleft.com/diary/17094/constitutional-beanball-the-supreme-courts-corporate-rewrite-of-the-first-amendment

[Uncle Joe]

1. Kicked and recommended.

Thanks for the thread, marmar.

[TexasObserver]

2. Recommend