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Tuesday, September 29, 2015

The Intelligible Argument Against Citizens United

Justice Breyer

It has been noted, both here and elsewhere, that the popular bumper sticker arguments against the Citizens United decision—Money Isn’t Speech! and Corporations Have No Rights!—are legally ludicrous and would not be made by any competent constitutional lawyer.

Nevertheless, Citizens United was not a unanimous decision; four Supreme Court justices dissented. But even the dissenters are far too smart and lawyers too good to have offered the bumper sticker arguments.This is something which should give pause to those who repeat the bumper sticker arguments, but claim to be admirers of the dissenting justices. Rather the dissenters’s argument stripped of rhetorical guises and elaborations runs along the following lines:

Our highest duty is to promote egalitarian democracy. Such a democracy cannot be allowed to be corrupted by differences in wealth (while we yet permit such differences to exist). We know that our wise and beneficent rulers understand this and may enact policies to prevent this evil. When they do, no mere words on a paperWhich nobody can understand anyway because it was written more than a hundred years ago by slave owners. should be allowed to stand in their way.

One of the more intellectually engaged dissenters elaborated on this point of view at least twice at book length.

The author, not being an egalitarian and an Anti-Royalist, would not agree with the premises of this argument. But he would concede that, on these premises, it is a valid and quite possibly persuasive argument.

What it is not is a good-faith effort at constitutional interpretation. It rejects the actual words of the Constitution on the basis that they contradict an ideal—egalitarian democracy—that is nowhere to be found in the text. It elevates to over-ridding principle of the Constitution a principle that not only is not in the Constitution, but which the framers and ratifiers of the Constitution would have utterly rejected. The sole excuse offered for this malpractice is that the document is old and the justice disagrees with the framers.

This not even Justice Scalia’s oft-thrown accusation that these justices view themselves as Platonic Philosopher-Kings. Rather these justices bow to Congress, the President, and—perhaps most of all—the bureaucracy as the genuine Philosopher-Kings, reserving for themselves merely the humble office of Philosopher-Kings of the Philosopher-Kings.