Conservative Legal Academics and the Constitutionality of McCain-Feingold:
I find myself quite puzzled by Brad Smith's suggestion that conservative law professors are not likely to support John McCain because belief in the constitutionality of McCain Feingold is somehow inconsistent with "general respectfulness" for the Constitution. Maybe I'm missing something, but I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say -- can't remember who -- was that judges should be "strict constructionists" who don't "legislate from the bench."
Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy. Of course, conservative legal thought comes in many diverse strands, so of course it's not the only result a conservative judge could reach. But if you believe that legal principles should be applied consistently, without regard to which party's ox is being gored, I would think this would be a strong and principled conservative approach.
Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy. Of course, conservative legal thought comes in many diverse strands, so of course it's not the only result a conservative judge could reach. But if you believe that legal principles should be applied consistently, without regard to which party's ox is being gored, I would think this would be a strong and principled conservative approach.
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The typical (or one typical) criticism of an activist judge (or a judge who legislates from the bench) is that the judge alters his constitutional analysis in order to justify a preferred policy result. A conservative judge striking down an unconstitutional statute is not an abdication of the judge's proper role, but faithful execution of it. If McCain-appointed Judge X merely struck down McCain-Feingold because she thought it was bad policy, then I think you're correct that it would not be strict constructionism.
As a side note, judicial restraint is not only championed as a conservative virtue. Justice Breyer has noted that he (and the liberal bloc) consistently vote to uphold more statutes against constitutional challenges than the other justices. That doesn't necessarily mean that he is more faithfully interpreting the constitution than Justice Scalia, for example. He just has a different vision of what the constitution says.
Implicit in your comment is a vision of what a conservative jurist does when he interprets the constitution. Can you be explicit about what that vision is?
But when a liberal judge strikes down a statute, s/he is merely using the judiciary to achieve a preferred policy result?
This should be fun.
And I think, Mr. Kerr, you are falling into a rhetorical trap created by the left when describing "conservative" judicial philosophy. They set up this notion that the conservative position is that judges should do nothing, and then hit conservatives over the head with that straw man when conservatives advocate overturning vast expansions of the commerce clause, the role of the federal government, etc.
For the issue at hand, I think it's fair to say that finding a right to political speech unencumbered by government restraint would not be some sort of new judicial right. It therefore would not be legislating to overturn a restriction based on that right.
On the other hand, those justices who uphold McCain Feingold do so out of a belief that the textual negative right of the people against government intrusion can be outweighed from the far less textual positive right to a fair democratic process and election. This is not a conservative judicial analysis.
Nick
But another part of strict construction has to do with, if one has determined that some of these things are within speech or press or petition, what "Congress shall make no law..." means.
From my perspective, McCain tries to rule but not govern; he doesn't consider himself bound by that promise he made to "make no law" infringing speech and petition, and so he's like the Clintons, unable to understand what it means to bind oneself with an oath and keep that set of promises.
Your skills at question-begging remain unsurpassed.
Sooo...stare decisis should trump fundamental constitutionality? Is this what "conservatives" are supposed to think?
That's the reasoning that brought us Webster and its whole line of cases--"Hey, we said! And if we unsay now, people will make fun of us!"
No wonder we can't catch a break on judges.
I concede that my statement implies a conservative vision of the constitution, but I think that vision exists--namely, that the first amendment forbids BCRA. (I am not, for the record, a conservative, so I hope I am not misstating their case.) Indeed, Justice Thomas and Justice Scalia, the models of the strict constructionist so voted in McConnell.
I think your rebuttal articulates a general problem with accusing one of being a "judicial activist" because it assumes a correct vision of the constitution that is not being adhered to. My point was only that, assuming Judge X believes BCRA is unconstitutional, it would not be an abandonment of conservative jurisprudence to strike it down. In fact, if he didn't strike it down, he would not be faithfully interpreting the constitution. Again, I totally agree that if a judge struck down the statute as a matter of policy that would be legislating from the bench.
Cut the rhetoric and make your argument without presupposing HOW words mean.
You can have an expansive understanding of "speech" or you can have an absolutist understanding of "no law." You can even have them together but then you are talking revolution. I think at this point it shirks a judge's duty to disclaim any right to engage in normative inquiry.
At any rate, you aren't going to get any traction on a man of his stature by accusing him of violating his oath to his country.
Thanks for your kind words, its nice to be recognized for ones talents.
I didn't address your specific points, because they didn't make any sense. You say a judge applying Thayeresqe judicial restraint would uphold McCain-Feingold "regardless of the merits of such legislation as a matter of policy". What has policy have to do with it? BCRA clearly violates the constitutional prohibition on regulating speech.
You go on to say:
I have no idea whether it hits the right more than the left, it seems like it is neutral in that it is more a incumbent protection act than an idealogical measure, 2006 it might have helped the GOP, 2008 it might help the Democrats. I was against it both election cycles, so that point seems nonsensical to me too.
Would you be advocating "old fashioned Thayeresque principles of judicial restraint" if Congress authorized no-knock warrantless raids against drug dealers because you didn't think Judges should be making policy decisions? We know the answer to that, you wouldn't even think about whether it was good or bad policy because it is plainly unconstitutional.
Yes, that's possible. I've never heard him coherently expound any such theory, but then I haven't made a close study of the guy.
At any rate, you aren't going to get any traction on a man of his stature by accusing him of violating his oath to his country. I used the expression "from my perspective". I don't expect my views to be widely shared, although I'm reminded that Ron Paul was one of the guys who took McC-F to court. For me, McCain's position on campaign censorship is a deal killer, even before he treated Brad Smith the way he did. Similarly I view Huckaby's rejection of science as a deal killer. Both guys have some charm and compelling personal stories.
If I thought McCain was doing his best to uphold his oath, just seeing things differently than I do, I'd have a very different opinion of him.
Brad didn't quite say that thinking that M-F is constitutional is inconsistent with being respectful to the constitution. Rather, he said that it's hard to find potential judicial nominees who would both believe that M-F is constitutional and be otherwise respectful to the Constitution, and he gives Thomas and Scalia as examples of judges who are the latter but don't believe the former. If there are some potential nominees out there whom "limited government" types (Brad's category) could support who also are fine with M-F, they don't immediately spring to mind.
I think you're missing the point. The question that divided the Supreme Court in the BCRA case, over the course of hundreds of pages, was whether BCRA violates the First Amendment. Your approach is to assume the conclusion than it does; You seem to think it is so clear that it doesn't require argument. But if one uses traditional tools of constitutional interpretation, such as history, text, and precedent, I think the answer is not so clear. I realize that you find one side much more persuasive, but that doesn't necessarily mean it is the only plausible result. Or so it seems to me -- perhaps I am not the expert in this area that you are.
Also, given that the entire justification for allowing CFR was to avoid the perception of corruption in government, it is hard to believe that they didn't recognize the even stronger perception (and perhaps reality?) that CFR is designed to shut up detractors of incumbents. Not only was upholding CFR a misreading of the Constitution, it was an act of extreme hypocrisy, IMHO.
I see your point now, and of course the reason it escaped me, and probably everyone else is because no one knows ahat the hell "Thayeresque" is.
But a little research leads me to this description of neo-Thayerism:
So if I am reading that right a Thayeresque approach to judicial restraint would not invoke the constitution to strike down laws, but leave it up to the political process to enforce constitutional boundaries on legislation.
If you are a Thayerite, you wouldn't strike down a law allowing warrantless searches of suspected drug dealers on 4th amendment grounds. I'm guessing you are not a Thayerite.
When it comes to interpreting the constitution, I am a computer programmer not a law professor, so we inhabit different universes. In the universe I inhabit a first amendment that protects nude dancing as a act of expression also protects any and all political advertising regardless of who pays for it. There is no question on the matter. Now maybe that is because I spend my working hours coding IF..THEN...ELSE statements, that always spit out the same output when the input is the same, it may well be that Quantum logic is more applicable to the law than computer logic.
, that the Alien Acts were never enforced (although the Sedition Acts were), and that the majority of the acts were allowed to expire in 1802, meant that they were unpopular. I guess I don't just have the right perspective on history to realize that they would be seen as a great success by today's judiciary, and a example for emulation. Perhaps a law school education would have straightened me out. Thanks for the corrections.
I think a good many conservatives over the years would object to being tied to originalism as the sole source of Constitutional interpretation. Textualists, for example, don't necessarily look to that source (at least not in the first instance). And stare decisis is conservative in its own way. Finally, some conservatives during the late 19th C thought that adherence to fundamental rights was the proper way to interpret the Constitution. IOW, there are lots of ways to be "conservative".
You can find plenty of quotes on all sides of this issue. Here, for example, is James Wilson in the PA ratifying convention: “What is meant by the liberty of the press is that there should be no [prior] restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”
Some went even further. Sam Adams took the position that private parties had no right to engage in politics at all:
“[A]s we now have constitutional and regular Governments and all our Men in Authority depend upon the annual and free Elections of the People, we are safe without [self-created societies]. To say the least, they are become useless. Bodies of Men, under any Denomination whatever, who convene themselves for the Purpose of deliberating upon and adopting Measures which are cognizable by Legislatures only will, if continued, bring Legislatures to Contempt and Dissolution. If the public Affairs are [poorly] conducted, if dishonest or incapable Men have crept unawares into Government, it is happy for us that under our American Constitutions the Remedy is at hand, and in the Power of the great Body of the People. Due Circumspection and Wisdom at the next Elections will set all right, without the Aid of any self Created Conventions or Societies of Men whatever.”
Do you really doubt that McCain-Feingold is unconstitutional? If the gov't can restrict you from paying/donating to an organization that diseminates your preferred political viewpoint, then can't they also restrict you from buying paper/ink to print your own pamphlets? If not, why?
It's actually still in effect today (50 USC Sec. 21-24) and has been enforced numerous times in our history.
The quote you gave is fairly simplistic in its analysis of the election of 1800. There's no doubt that the Republican party objected to the Sedition Act, but the Federalists didn't. The key to the federal election was the NY state contest, which Burr won for Jefferson. That shifted NY's delegates to Jefferson, providing the margin of victory. In addition, of course, the extra delegates given the South by the 3/5ths clause played an important role.
The problem comes when you have to figure out whether the Constitution clearly prohibits a law. The First Amendment's protections of freedom of speech and freedom of he press were not intended to protect libel, slander, speech or writing that conformed the treason standard, or obscenity. The most that you can say is that the First Amendment generally prohibited prior restraint. You could be punished for abuse of that right (a formulation that appears in a number of state constitutions of the period), but not prevented from speaking or printing your beliefs.
Now, what constitutes obscenity? That's a somewhat more difficult question. That political speech was to be protected by the First Amendment is so obvious that I'm not going to waste my time arguing that position. (At least, not until J.F. Thomas steps up and argues that covering your naked body with chocolate sauce on stage is protected--but not political advertising).
Normatively, I tend to oppose such deference more generally. Separation of powers and checks and balances suggest that no branch is superior to the others. If the legislature were making a good faith effort to only pass statutes which were constitutional, and the executive faithfully used the veto power to deter passage of anything unconstitutional, then perhaps deference would be appropriate. But today both those branches defer constitutional concerns to the courts, so when the court in turn gives deference to what might be unconstitutional, we've lost the checks and balances and no-one speaks for the constitution.
Clayton, you know legal history better than I do. Two questions. Just as the right to free speech had historical exceptions like libel and treason, the right to bear arms might also have had historical exceptions. Did it, what were they, and does this affect the DC case?
Second, the state constitutional "abuse" clauses re freedom of speech and press: what is the proper construction of the abuse clauses; what were they supposed to mean? Thanks.
The absolutist view (of which Justice Hugo Black claimed to be a follower) would say that if speech of a type envisioned by the Framers was restrained, than there is no balancing act, no question of "overbroad" or "narrowly tailored" -- the law is bad, and goes away. M-F (which is an apt abbreviation for this law) would have gone away.
Strict scrutiny was created as a theory to privilege rights that liberals thought were so important that they should be very, very difficult to violate--but without the necessity for judges to be consistent, as following an absolutist model would.
And in practice, strict scrutiny case law is a mish-mosh. Speech seems to be pretty consistently followed as strict scrutiny, which is at least explicitly in the Constitution. But in Moore v. East Cleveland (1977), the right of extended family to live in a house (which is, at best, implied) is also given the strict scrutiny protection. And there are cases where strict scrutiny has been applied to the right to collect welfare without meeting a one year residency requirement under the claim that this is about the right to interstate travel. What?
Without question. Based on the historical evidence, slaves don't have the right to keep and bear arms. (Amendment 13 fixed that, anyway.)
Individuals could be disarmed as punishment for particular crimes--although most of the disarming crimes back then were capital. Prohibiting felons from owning firearms is far less severe than preventing felons from living, so felon in possession laws would seem justifiable based on original intent.
Those who were disloyal to the government could be, and were disarmed during the Revolution. The closest modern equivalent is the Lee Harvey Oswald Memorial Provision that bans those who have renounced U.S. citizenship from owning a gun. You could make the argument that non-citizens can be disarmed under the same principle.
Categories of arms were subject to no restrictions back then. Even handguns weren't treated special, compared to other weapons.
I'm familiar with the text of the Penn. Const. provision, but I am not sufficiently expert to discuss meaningfully what they intended that to mean. I would look to see what James Wilson, U.S. Supreme Court Associate Justice, and primary author of the 1790 Penn. Const., understood it to mean, at least as s start.
In the same way that it's different from spending 10K on machine guns (or "art" consisting of naked people) to express support of a candidate. The protection for "speech" itself is clear and certain, everything else is subject to the same machinations of interpretation as the 2A.
I think the quote itself is pretty clear that Adams thought that politics was limited to elections and that, outside of elections, was the proper subject for elected officials rather than private citizens.
It may help to give some context about "self-created societies". In the early 1790s, a number of "Democratic clubs" sprang up around the country. They were associations in which ordinary citizens could discuss politics and (mostly) oppose the Federalist administration.
Federalists considered these clubs illegitimate. For example, Fisher Ames, the most prominent Federalist Member of the House, said “Will clubs [serve] as a substitute for representation? A few hundred persons only are members of clubs, and if they should act for the others, it would be an usurpation [of the role of Representatives].” In essence, Ames was saying that the clubs subverted republican government because they represented only a minority rather than the whole nation (as Congress did). That was the same position Sam Adams was arguing.
Buckley may be one of the most underrated Supreme Court opinions of all time. Not that it is necessarily right (I don't personally completely buy it and would favor a more speech-protective rule), but that the distinction that it draws between contributions and expenditures is actually a very decent stab at hitting the fundamental difference between different types of campaign finance restrictions and their likelihood to suppress the expression of ideas. And yet everyone seems to hate it.
Nonsense. The First Amendment covers not only individual speech, but also freedom of the press. And speech is useful only if one can have an audience, or disseminate the speech beyond earshot. Money is generally essential to any speech beyond personal discourse. To restrict money is to restrict speech, publication, assembly, and political advocacy in general.