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.
Wednesday, January 27, 2010
Over at First Things, Meghan Duke reports what should be (but, unfortunately, really isn't) a shocking story:
While visiting the National Gallery of Art this past Saturday, I ran
into a pair of errant security guards who have taken to interpreting
the Constitution in their spare time.
I decided to visit the
Gallery after attending the March for Life the day before. There was an
exhibit on processes of photography before the digital age that I hoped
would confirm me in my refusal to give up on film. After searching my
bag, the two guards at the Gallery told me, “You’re good to go in, but
first you need to remove that pro-life pin.” He was indicating the
small lime green pin with the message “impact73.org” and the silhouette
of a small hand inside that of a larger hand that I had attached to the
lapel of my coat. The pin, they informed me, was a “religious symbol”
and a symbol of a particular political cause and it could not be worn
inside a federal building. Why, I asked, can I not wear a
religious or political symbol inside a federal building? Bringing to
bear the full weight of the supreme law of the land, the guards
informed that it was a violation of the First Amendment of the United
States’ Constitution: The combination of me, wearing a pro-life pin, in
a federal building was a violation of the separation of church and
state.
This is ridiculous, of course, and on many levels. (I am smothering every impulse to say something snarky about the current administration's alleged dedication to common ground and respectful dialogue on the question of abortion . . . oops. Dang.) Perhaps most troubling, though, is the premise of the guard's mistaken First Amendment analysis, i.e., that a pro-life symbol (think of the little-feet lapel pins one sometimes sees) is a "religious" symbol. As Duke notes:
A pro-life pin is not necessarily a religious symbol because the
pro-life movement is not a specifically religious cause. We do not
argue that abortion should be outlawed on the basis of a divine
mandate; we argue that it should be outlawed because children in utero
are human beings with an inherent right to life, exercising the same
claim to our protection of that right as other human beings. Had I been
wearing a yellow bracelet that said Livestrong or a T-shirt that said Help Haiti
I am sure I would not have been stopped. I would be expressing the same
sort of belief—that we bear a responsibility to help a specific group
of people—but no one would suspect that my views were religiously
motivated, they would chalk them up to my sense of humanity. A sense of
humanity entirely comprehensible apart from religion.
On the other hand, as some of us (Michael Perry, most prominently) have argued, all serious moral claims sounding in human rights in dignity are probably, in the end, inescapably "religious". Duke again:
[T]he pro-life pin is not “entirely different” from the cross. My
understanding of the inherent worth of every human being is founded in
a Christian worldview. While almost anyone can vaguely intuit the
dignity of the human person, the Christian recognizes that it is rooted
in his being the image of God, a God who descended to become one of our
species and suffered and died that we might have life.
