jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
The conservatism of Elizabeth Drew
Friday, February 03, 2012
The conservatism of Elizabeth Drew
I've been swamped this past month, and even now don't really have the time I'd like to return to posting on my favorite Blogsite, especially since I have a number of pent-up postings on such topics as Haley Barbour's pardons, what it means to call reason the "slave" to the passions, and other such topics. But I couldn't restrain myself when I read Elizabeth Drew's Can We Have a Democratic Election? in the current (February 23) New York Review of Books (available only to subscribers, I'm afraid). I agree with much of what she says about the corrosive impact of SuperPacs (and the roles played by such billionaires as Sheldon Adelson). But I am most interested in--and dismayed by--her attack on those who would go after Citizens United by trying to amend the Constitution. It's not that I necessarily support all of the proposals that are out there; many are undoubtedly dubious and, perhaps, even pernicious in their implications. But that really isn't the basis of her argument (or what triggers this post). Instead, she writes, "To submit the Constituiton to the political process is to put in danger of being opened up to the popular movements of the moment." To call for a constitutional amendment, she writes, "sets a very bad precedent. The Founders in Philadelphia wisely [my emphasis] made it difficult to change this core document.... They sought to protect the Constitution from being subject to shifts in popular opinion...."
Considering the proposed amendments to reverse Citizens United actually reinforces the wisdom of that decision.
You can find the favorite Dem amendment offered by Tom Udall here: http://www.scribd.com/doc/71154073/A-Constitutional-Amendment-to-Reform-Campaign-Finance
This direct assault on the First Amendment gives Congress the power to limit or prohibit any person or entity from spending money or the equivalent to engage in political speech for a candidate.
Just for the record, the particularl wisdom or unwisdom of any particular amendment is beside the point. The real point is the hide-bound veneration that Ms. Drew expresses. If I wanted to discuss the Udall amendment, I would have written about that. But I did not.
Yep, the issue here is hardly any particular proposal.
The issue here is how many otherwise intelligent persons believe the document was carried down Mount Sinai on clay tablets, by an exhausted Moses, given reasonable estimates of font size and tablet weight.
The point of Article V was to make it difficult for a passing political movement like that to abridge political speech for partisan advantage to amend our basic law.
As I have noted here before, I would lower the bar for amendment somewhat, but fully support maintaining that bar at a super-majority level to avoid mischief like the Udall amendment.
With regard to our yodeler's "The point of Article V ..." he neglects/ignores the point of the southern states back at the Philadelphia Convention to make it difficult to eliminate slavery via many provisions of the Constitution that protected slavery without actually referring to slaves and slavery. Yes, eventually with the costs of the Civil War, slavery was outlawed with the adoption of the 13th Amendment via the Article V process (that might have been a tad flawed because of voting limitations upon the seceding states). But despite the 13th Amendment and the 14th and 15th Amendments, Jim Crow and other remnants of slavery continued until Brown v. Board of Education in 1954; even then, it took the civil rights movement decades to somewhat provide non-discriminatory rights to African-Americans such that America in 2008 had the audacity and hope to elect its first African-American President. Citizens United's money talks and talks and talks is doing its best to prevent Obama's second term. Our yodeler's hide-bound veneration for Article V is in keeping with his vile attacks on Obama from day one of the latter's inauguration on 1/20/09.
By the Bybee [expletives deleted], Stephen Colbert had a great segment on 2/2/12 on the 20 or so major contributors to Super PACs. Yes, money has talked loud and clear. Alas, our yodeler's candidate du jour (Newt), has been a victim, unless he can rise from the ashes in Nevada by coalescing a fractured Tea Party. (See NYTimes front page article 2/2/12 "Downturn and Upstarts Transform Nevada's G.O.P. Caucuses" by Nagourney and Medina.)
I wonder if any of the amendments after #10 set a "bad precedent" as well. Would an amendment, as one should be submitted, that takes away the inability of someone born in Canada but coming here as a child from being President also so nefarious? Was the 19A?
Amendments should be hard to come by though we can debate on the means. The proposals to amend the Constitution to override CU (Justice Stevens on Colbert reminded us some criticisms are off, like the idea corporations aren't persons), at least the ones I have seen, are nefarious.
But, I'm with jpk.
Drew's argument strikes me as strange. She says the founders wisely made it difficult to amend the Constitution (my first reaction is to agree), and yet decries any amendment that scales back Citizens United, even an amendment that makes it through the difficult process (or at least Sandy makes it sound that way, I'm not a subscriber so can't read the original). Assuming she isn't arguing that all amendments are bad, how does she distinguish good ones from bad ones?
My first reaction is also to agree with the Udall proposal, and yet to concede the reality that Article V's requirements are too much to keep it from passing (to the detriment of the country).
The Udall proposal underlines that Citizens United is just the tip of the iceberg. "the amount of expenditures that may be made by, in support of, or in opposition" could be regulated. Not just by corporations. No limits are suggested. When even Justice Breyer has found certain local laws of this type unconstitutional, such open-ended regulation of even individual use of their own funds is problematic.
Dahlia Lithwick's Slate column today (2/4/12) "Colbert v. The Supreme Court" might suggest that satire, ridicule, etc, may result in an "amendment" by the Court of Citizens United that does not require a supermajority (in that instance of unelected officials).
I don't share your concern over open-ended regulation.
I hope the Udall amendment would lead to mandated nothing-but public financing of campaigns as it relates to television and radio. I think that is the best way to free elected officials from being held hostage by their largest campaign donors.
But, maybe you can suggest a regulation we should be wary of and an appropriate modification of the amendment to deal with it.
just_looking, the USSC over the years, including in opinions written or joined by liberal justices, set various limits on election regulations, including if the barriers (even to use of your own money) are so complete that very small amounts of money are blocked or various sensitive groups need to disclose certain information.
For instance, an open-ended expenditure law would require every single person, even those who gave $20, to disclose the fact, including contact information. Individuals, not just corporations with deep pockets, would be blocked from spending fairly small amounts of money, while established candidates will benefit. In fact, since the amendment comes later, arguably, even media sources would be limited in some fashion, the later amendment overriding the earlier given the powerful role such "expenditures" can play.
Requiring "public financing" for every election also is unnecessary. There are thousands of small elections, let's say for a local village sheriff, and the idea that only public financing should be allowed is to me unsubstantiated.
Mandatory financing -- I'm all for various types of financing laws and think the Arizona decision with Kagan's powerful dissent was wrongly decided -- what about if the person decides to write a campaign book or video? If this is done by private funds, can it be barred?
These are just a few concerns with such open-ended language.
Firstly, let me clarify that I want a federal statute mandating exclusive public financing of federal elections (House, Senate, President). Each state can decide for itself what to do. It is doubtful the sheriff would be impacted, but Arizona's fine law for statewide office you referred to would be permitted thanks to the Udall amendment.
Secondly, I'm not following your concern over small-donor disclosures. If campaigns were mandated to be exclusively public-funded, there wouldn't be any donations.
Thirdly, maybe the amendment could be reworded to protect the book or video while still permitting a public-financing mandate on radio and TV. But if not, Congress is not going to outlaw the book or video. We should address the problem we know exists, not an unrealistic hypothetical. Do you have a better solution that would reinstate the Arizona law?
Thanks for the clarification though there is plenty of state funding that people are concerned about.
I also don't know how federal funding would work. How would we determine who would get it? Some primaries might have say five candidates. One party. Then, there are third parties. Would they all get the same amount even if they have small public support?
By your own lights, only the feds would be publicly funded. Every ballot measure, e.g., might not be. And, total funding is a pretty big step. The mode often is matching funds. And, what about people who might run in federal elections? Would third party groups be blocked? How about their funding?
Citizen United was about videos. If there is an exception for books and media, that is a notable hole. As to Arizona, there might be a way to craft the law that would meet USSC approval. Public financing is still allowed generally. I don't think a constitutional amendment is the best path. If one was crafted, it might say something like "voluntary public financing" should be allowed or something.
With more ashes for Newt in Nevada, his rise may come in CO with the benefit of the endorsement of you know who. But the Nevada support for Mitt from the Tea Party suggests otherwise.
I'm working on a dyslexic political bumper sticker:
with a tie-in to Citizens United. Any ideas?
Federal law already sets thresholds for public funding. Even Buddy Roemer is eligible.
Citizens United was about videos only because SCOTUS bent over backwards to improperly construe the statute (against even the argument of the plaintiffs) so they could invalidate it.
Since you haven't offered up a rewrite of the Arizona statute, how about an amendment that reads:
Public funding of electoral campaigns, including amounts that compensate for unequal levels of privately-funded candidate or independent expenditures, shall not be construed to violate Free Speech as defined in the First Amendment of this Constitution.
Phase two of dyslexic political bumper sticker:
Citizens United LATER!
In the second line, the lower case letters would be smaller than usual so the viewer's glance would focus on "C" "U" LATER!
If ONLY public spending was allowed, things would be more complicated. R. is rarely seen, an example of how limits can selectively affect outsiders.
If you want to allow videos and various other things, putting aside "trust us" is never quite a good rule for the government, large amount of spending would be allowed for any number of things.
That sounds okay though public funding laws should follow the normal 1A rules that apply generally. And, an amendment to the Constitution to override the Arizona case alone doesn't seem necessary. Public funding is after all still allowed. That isn't the concern of the drafters. They have bigger game, game that goes far beyond CU.
Why couldn't the same rule for qualification apply if only public funding is allowed?
Until you offer something that can replace the Arizona law, I don't see any other solution except an amendment. As we have witnessed, public funding that does not compensate for unequal private funding is useless.
Today's WaPo (2/6/12) features Tom Toles' political cartoon "Game is Over" depicting the Supreme Court and the impact of Citizens United (with a not so subtle reference to CJ Roberts' "umpire" role). With Citizens United the "Umpire Struck Out."
I haven't checked out Udall's proposed amendment as yet but it is difficult for me to envision what the result would be of efforts to overcome Citizens United via the amendment process. The real problem is with the Court as described in yesterday's (2/5/12) NYTimes lead editorial "Politics and the Supreme Court" with the subheading: "Big legal cases may influence the 2012 election, but politics forcefully shaped the cases."
E. J. Dionne's WaPo column today (2/6/12) "The Citizens United catastrophe" is even more biting than yesterday's NYTimes lead editorial.
By the Bybee [expletives deleted], the NYTime website today features "Dickens v. Lawyers" by Joseph Tartakovsky, a young lawyer clerking in the 10th Circuit. I don't know if the article is in hard copy of the NYTimes, but it is worth a read and not just for lawyers.
just looking, the Arizona case didn't say all public financing was unconstitutional. And, even if they did, it is not necessarily the best policy to amend the Constitution, especially since there are other means to address the problem.
The book review following this post does not allow comments, but I would also recommend "A More Perfect Military
How the Constitution Can Make Our Military Stronger" by Diane Mazur.
Yesterday's NYTimes (2/7/12) features on its front page Adam Liptak's "Sidebar" column "'We the People' Loses Followers" making the point that our Constitution is no longer the model for newer democracies. Sandy is referenced in the article and perhaps we can expect a post on it by him.
Does creative destructionism apply to constitutions?
Originalism here in America might be contributing to the waning interest in our Constitution. In this regard, I recommend Saul Cornell's "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism." A link to Prof. Cornell's article is available at the Originalism Blog.
As to Citizens United, Pres. Obama has decided to jump on the Super PAC bandwagon to "level the playing field."
By the Bybee [expletives deleted], I note that Rick Santorum topped three (3) GOP beauty contests yesterday, including in our yodeler's backyard of CO. Is Rick the new non-Romney, acing out our yodeler's choice du jour of Newt? Or is this a reaction to contraception rules in the news?
Shag's comment brings to mind Justice Ginsburg's comment that she would counsel constitution writers to not use our own as a model in various respects.
Judicial review has been adopted with Europe and Canada adopting it as a means to protect rights. But, one thing that post-WWII constitutions tend to include are positive rights.
Other things such as our federal system also might not fit in some other country, at least, see Breyer's writings, the specific way we handle it.
The Prop 8 case has also resulted in much commentary. Therefore, for those who prefer commenting, there are various other places to go, such as Volokh Conspiracy.
If a newer democracy were to adopt in its constitution provisions similar to those in our Constitution that have been controversial and subjected to the scrutiny of various forms of originalism in recent years, would such adoption carry with it the baggage of such originalism in interpretation/construction? Or perhaps some baggage of SCOTUS precedent/stare decisis? It might be that the newer democracy needs a tabula rasa constitution that just might benefit from such baggage by avoiding it. So perhaps the situation described in Liptak's column is understandable.
I noted at Daily Kos a posting illustrated with Mitt Romney and young children spelling out "Rmoney," Maybe my bumper sticker idea noted in my earlier comments on this thread may come to fruition. But with Rick Santorum now leading Mitt in national polls and even in Michigus, this idea may be mooted. So I propose a Rick Santorum bumper sticker:
to attract voters versed in Latin (although it might not attract Latinos).
With further consideration on my suggested Santorum bumper sticker, perhaps it should be revised to:Post a Comment
as sort of an abbreviated progressive syllogism. But some may reflect upon it as mere conjugation.
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
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