Much has been written about the Supreme Court's Citizens United opinion overruling a century of precedents and statutes designed to curb corporate campaign spending.Many have offered suggestions on ways to counter the decision's effects; but another possibility - one of the oldest on the books - is also available:Congress could constitutionally remove campaign finance issues from the Supreme Court's appellate jurisdiction.
Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal:"[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words."Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."
Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s.As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).
Some may object that Congress's use of the Exceptions Clause threatens judicial independence.This is a valid concern.But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence.That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.
Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn.True enough - Citizens United is on the books.But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.
In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases.While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.
The Cardozo Law Review de novo online journal just published my essay entitled "The Potentially Expansive Reach of McDonald v. Chicago: Enabling the Privileges or Immunities Clause," in a feature it entitles "Firearms, Inc." The essay may be seen here.
The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.
I'm on deadline trying to finish a book, but just a few thoughts about the Massachusetts election and the Supreme Court corporate speech case:
-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.
On this topic see also Paul Krugman in the Times in "Do the Right Thing":
"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."
-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.
Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.
It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.
In "An Odd Couple Defends Couples That Some (Oddly) Find Odd" in yesterday's New York Times, Maureen Dowd describes the intriguing lawyer-team of Ted Olsen and David Boies (former adversaries in the 2000 Bush v. Gore case), who are now arguing together against the constitutionality of California's Proposition 8 in the U.S. District Court in California.
“'Ted Olson and David Boies, so what are they up to?'” Dowd reports Olson mock querying, "summarizing the confusion and conspiracy theories that their union inspired.
"As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: 'We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.'
"Boies, wearing a flag pin on his lapel, said that the state of California is engaged in 'gay bashing.' He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: 'These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.'
"Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: 'Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.' ...
"'I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,' he said. 'We’re not treating them like Americans. We’re not treating them like citizens.'
"Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ....
"'I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,' Boies said. 'It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.'"
Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today's discrimination against same-sex marriage with similar disbelief.
Dowd continues: "The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience 'weakens our moral fiber in this country.'
"While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.
"I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.
“'Damned right,' Boies snapped. 'I hope my Democratic president will catch up to my conservative Republican co-counsel.'
"Olson added: 'I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’
"Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about."
After 46 years as a journalist (34 years of them writing OpEds for the Washington Post Writers Group), columnist Ellen Goodman is retiring; and she writes a terrific farewell column in yesterday's Washington Post.
Pondering what will be her response to the inevitable "what will you do now?" queries, she considers "coopt[ing] Susan Stamberg's one-word answer when she left her anchor post at NPR: 'Less.'" She is "more tempted to say, simply, 'We'll see.' After 46 years of deadlines," she concludes, "it is time to take in some oxygen, to breathe and consider."
Ms. Goodman recalls a column from three decades earlier, when she had written of another's retirement:
"'There's a trick to the Graceful Exit. It begins with the vision to recognize when a job, a life stage, a relationship is over -- and to let go. It means leaving what's over without denying its validity or its past importance in our lives.'
"'It involves a sense of future, a belief that every exit line is an entry, that we are moving on rather than out.'
"It was an odd experience to hear, let alone heed, my younger self.
"'The trick of retiring well may be the trick of living well,' I wrote back then. 'It's hard to recognize that life isn't a holding action, but a process. It's hard to learn that we don't leave the best parts of ourselves behind, back in the dugout or the office. We own what we learned back there. The experiences and the growth are grafted onto our lives. And when we exit, we can take ourselves along -- quite gracefully.'"
So what are Ms. Goodman's final concluding words in this final concluding column?
"[My younger self] knew then what I know much more intimately now," she observes. "So, with her blessing, I will let myself go. And go for it."
I've just posted here the Introduction and excerpts from three chapters in my forthcoming book (Cambridge University Press), "Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," on my Berkeley Press Selected Works page (http://works.bepress.com/michael_lawrence/).
Here are the first few paragraphs from the Introduction:
In teaching history, there should be extensive discussions of personalities who benefited mankind through independence of character and judgment. -Albert Einstein, 1953
America in the twenty-first century exists in a perpetual Dickensian sort-of “best of times, worst of times” state when it comes to putting into practice the sacred principles of liberty and equal justice. On one hand, the once-unthinkable occurred in November 2008 when the nation – a land that had permitted and promoted human slavery for more than half of its four hundred year history - elected an African-American man president. The symbolic importance alone of placing Barack Obama at the pinnacle of power in the United States, given its sordid past practices, cannot be understated. Yet, on the very same day, a majority of voters in the most populous state in the union, California, voted to deny thousands of their fellow citizens, gay Americans, the equal right to marry. The California experience is only one of numerous legislative-judicial struggles beginning to play out on the issue of gay marriage in other states around the nation.
Taking the long view, if history is any guide (and it is), there is little doubt the discriminatory laws against gay marriage will eventually end up on history’s scrapheap. The current battles will soon go the way of those of some fifty years ago involving interracial marriage, during which one Virginia trial court, in upholding the state’s antimiscegenation statute, reasoned: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Most Americans today would view such language with a mixture of shock and disbelief - but it was not long ago that legislative majorities in sixteen states gave official voice to such ignorant biases.
Fifty years from now, the current arguments against gay marriage will seem similarly archaic. As the Reverend Martin Luther King, Jr. limned, “the arc of the moral universe is long; but it bends toward justice.” For all its faults, the United States Constitution has, over time, provided a one-way ratchet toward greater, not lesser, liberty and equal justice – every constitutional amendment but one (the eighteenth, itself repealed by the twenty-first just fifteen years later), for example, has, if anything, expanded Americans’ freedoms.
America’s story is remarkable: a Nation, sprouting from the seeds of Enlightenment principles where “tolerance was a moral virtue, even a duty; no longer merely the prerogative of calculating monarchs, but a fundamental element of the ‘rights of man.’” For the first time in history a people - coming together toward the common goal of liberty and equal justice, and clearly cognizant of human nature’s split personality between good (freedom) and evil (tyranny and oppression) - created a government explicitly designed to resolve the tension in favor of freedom.
That is the myth, anyway. But all is not well in the land of milk and honey; for America’s constitutional structure has failed to thwart government’s moves to the darker side: its shameful history of slavery and apartheid; its past oppression of women; its systematic subjugation of Native Americans in violation of sacred treaty promises; its pervasive discrimination against immigrants and homosexuals; and, among other currentday repressions, its curtailments of civil liberties and inexcusable use of torture in the ill-considered “war on terror.” Consider also American geopolitics of the last hundred years: World War I Censorship (Congress’s and President Wilson’s 1917-1918 Espionage and Alien Acts imposing egregious punishments on political speech); World War II Nativism (the President’s authorizing the military to force 120,000 people of Japanese ancestry, two-thirds of them American citizens, from their homes and to quarantine them in internment camps for nearly three years; Cold War McCarthyism (powerful committees of both the United States Senate and House of Representatives conducting modern-day witch-hunts of thousands of American citizens accused of having communist sympathies); and Millennial Cheneyism (the executive branch aggressively exceeding long-accepted constitutional limits on its power - even while operating in a system that separates powers in order to provide checks and balances on each co-equal branch).
In each case, prejudice, greed, and political expediency took hold before being beaten back – for the time being. It is a constant struggle. As much as America has accomplished in advancing humankind’s perpetual quest for greater Freedom, it has never completely lived up to its own promise, for whatever reason – whether because of bitter class wars (Howard Zinn), its economically-motivated Constitution (Charles Beard), or some combination of these or other factors.
Which viewpoint more accurately describes the true America - the mythic common-interest pursuit-of-equal-liberty view; the grittier class-warfare explanation; or the more cynical economic-interest rationale? The reality is that there are elements of accuracy in each. And it is useful to keep them all in mind: Lest we become swept-up in misty patriotic myth, we should recall America’s ignoble history of injustices and intolerance; or, conversely, lest we lose hope, we should remember that the myth and partial reality of America as beacon of freedom has for centuries truly inspired millions around the world. In the end, the goals represented in the positive myth are worth fighting for, both idealistically and practically, for they advance our individual and collective humanity – and offer a model of ambition, idealism and hope for future generations. ...
Paul Krugman's column in today's New York Times, "Tidings of Comfort," offers a cogent evaluation of the Senate's momentous passage yesterday of Health Insurance Reform. Commenting that the legislation "will make America a much better country," Krugman divides its critics into three categories:
"First, there’s the crazy right, the tea party and death panel people — a lunatic fringe that is no longer a fringe but has moved into the heart of the Republican Party. In the past, there was a general understanding, a sort of implicit clause in the rules of American politics, that major parties would at least pretend to distance themselves from irrational extremists. But those rules are no longer operative. No, Virginia, at this point there is no sanity clause.
"A second strand of opposition comes from what I think of as the Bah Humbug caucus: fiscal scolds who routinely issue sententious warnings about rising debt. By rights, this caucus should find much to like in the Senate health bill, which the Congressional Budget Office says would reduce the deficit, and which — in the judgment of leading health economists — does far more to control costs than anyone has attempted in the past.
"But, with few exceptions, the fiscal scolds have had nothing good to say about the bill. And in the process they have revealed that their alleged concern about deficits is, well, humbug. As Slate’s Daniel Gross says, what really motivates them is 'the haunting fear that someone, somewhere, is receiving social insurance.'
"Finally, there has been opposition from some progressives who are unhappy with the bill’s limitations. Some would settle for nothing less than a full, Medicare-type, single-payer system. Others had their hearts set on the creation of a public option to compete with private insurers. And there are complaints that the subsidies are inadequate, that many families will still have trouble paying for medical care.
"Unlike the tea partiers and the humbuggers, disappointed progressives have valid complaints. But those complaints don’t add up to a reason to reject the bill. Yes, it’s a hackneyed phrase, but politics is the art of the possible.
"The truth is that there isn’t a Congressional majority in favor of anything like single-payer. There is a narrow majority in favor of a plan with a moderately strong public option. The House has passed such a plan. But given the way the Senate rules work, it takes 60 votes to do almost anything. And that fact, combined with total Republican opposition, has placed sharp limits on what can be enacted.
"If progressives want more, they’ll have to make changing those Senate rules a priority. They’ll also have to work long term on electing a more progressive Congress. But, meanwhile, the bill the Senate has just passed, with a few tweaks — I’d especially like to move the start date up from 2014, if that’s at all possible — is more or less what the Democratic leadership can get.
"And for all its flaws and limitations, it’s a great achievement. It will provide real, concrete help to tens of millions of Americans and greater security to everyone. And it establishes the principle — even if it falls somewhat short in practice — that all Americans are entitled to essential health care.
"Many people deserve credit for this moment. What really made it possible was the remarkable emergence of universal health care as a core principle during the Democratic primaries of 2007-2008 — an emergence that, in turn, owed a lot to progressive activism. (For what it’s worth, the reform that’s being passed is closer to Hillary Clinton’s plan than to President Obama’s). This made health reform a must-win for the next president. And it’s actually happening.
"So progressives shouldn’t stop complaining, but they should congratulate themselves on what is, in the end, a big win for them — and for America."
