Ever since I read Stephen F. Hayward’s The Politically Incorrect Guide to the Presidents: From Wilson to Obama, the politics behind the United States Supreme Court has been of interest to me, because of that book’s focus on Court appointments.
My mother and brother have said that “originalist” judges praised by that name and word in The Politically Incorrect Guide to the Presidents are simply tools of the Catholic Church, the Republican Party, and super-rich businessmen and bankers. More scholarly writings I have read over the past four years suggest that this may be the case.
This morning, after waking up at 10:00, I read an article from the University of Illinois Law Review by Geoffrey R. Stone titled ‘Citizens United and Conservative Judicial Activism’ (in reference to the 2010 decision Citizens United v. Federal Election Commission, which struck down Bill Clinton’s Bipartisan Campaign Reform Act of 1999. Stone argues that the conservative majority in the Roberts and Rehnquist Courts is not motivated by originalism nor by judicial restraint, but by an ideology of unfettered capitalism identical or similar to that of the Politically Incorrect Guides.
Stone says that ever since the 1990 decision Austin v. Michigan State Chamber of Commerce, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy always viewed corporations, including for-profit corporations as possessing the same First Amendment rights as individuals. Stone argues that this led them and Bush junior appointees Roberts and Alito to:
“eschew the narrow grounds of decision available to them, even those suggested by Citizens United itself, and actually order the parties to file briefs on the much broader and more controversial question of whether Austin and McConnell [v. Federal Election Commission] should be overruled”
The Politically Incorrect Guides argue that the First Amendment provides equal rights for freedom of speech, assembly, or the press and that this cannot exclude corporations. Socialists argue that the First Amendment and Bill of Rights constituted efforts to restrain protest against a highly undemocratic Constitution.
However, Stone argues that:
“on such questions as the constitutionality of affirmative action, regulations of commercial advertising, gun control laws, and campaign finance regulation, judicial restraint would lead to politically “liberal” results, and judicial activism would produce politically “conservative” results.”
The trouble with Stone’s argument here is that it is easy to observe that, at face value, the Second Amendment forbids restrictions upon gun ownership in any form. If “the right to keep and bear arms shall never be infringed” is taken literally, that means minimally that restrictions on gun ownership cannot be constitutional, although other laws, such as compulsory registration of guns, certainly do remain constitutional under a restrained view of the Second Amendment. As for commercial advertising or campaign finance regulation, there is nothing in the Constitution mentioning them, so it is natural that from the perspective of the Politically Incorrect Guides, they are completely protected and judges can never strike them down per se. Affirmative action is an even more obvious error: Stone cannot see that it strikes down freedom of association almost by definition. It is true that laws allowing racially restrictive covenants, which the little-known Corrigan v. Buckley case from 1926 legitimised when done by private citizens or organisations, do contradict equality of rights from a judicially restrained perspective. Between 1880 and 1940, judges certainly did narrow the Fourteenth Amendment beyond what it says at face value. This is likely because it – and even more the Fifteenth Amendment and 1960s civil rights legislation – were (and still are) viewed by the great majority of white Americans as elitist reforms by Northeastern lawmakers and their allies. This is the topic of Heather Cox Richardson’s How the South Won the Civil War: Oligarchy, Democracy, and the Continuing Fight for the Soul of America.
What Stone does not understand when he says
“The Framers of our Constitution wrestled with the problem of how to cabin the dangers of overbearing and intolerant majorities.”
is that – like all philosophers before The Communist Manifesto – the Founders viewed the urban population who have constituted a majority since the 1920 Census as ipso facto overbearing. The Founders viewed large cities as necessarily opposed to liberty because they would take wealth from smaller tighly-knit communities to fund their expensive services, as discussed by Jonathan A. Rodden in his 2011 ‘The Long Shadow of the Industrial Revolution: Political Geography and the Representation of the Left’.
A limited suffrage that excludes urban populations who own negligible land, women and for some theorists people of color, was universally accepted when the Constitution was written, although in the highly rural United States this allowed a broad male suffrage. It is natural that the Republican Party, who represents almost precisely that section of the population who were enfranchised when the Constitution was written, desires laws restricting voting rights, abortion, taxation, limits to campaign funds, public welfare, gun control and so on. Stone is right that such decisions do not sit well with the majority, but he does not understand that the urban majority of today’s American population is precisely that section against whom the Founders desired antimajoritarian decisions. That rigid sundown laws have excluded blacks, and lack of economic opportunity other nonwhites, from almost all of rural America outside the plantation South where blacks were disenfranchised until the late 1960s, is an extremely problematic issue by any account, but what the solution would be under “judicial restraint” is not perfectly clear.
What the conservative Justices want to do is to cement Republican power, and the Constitution as understood by the Framers and according to the political values that prevailed at that time allows them to do such, for the simple reason that suffrage laws of the eighteenth century match so perfectly with modern voter demographics.
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