Tax Lawyer's Blog

Citizens United was rightly decided by the Supreme Court not because the decision was subjectively good or bad for the country, but rather because it objectively comports with the text and meaning of the U.S. Constitution.

It never ceases to amaze me how many self-proclaimed legal scholars do not understand the role of the Supreme Court. Former Governor of New York, Eliot Spitzer, may have had his problems with call girls, but at least he knows what the Supreme Court’s job is and is spot on correct about its recent decision in the Citizen’s United case.

The Daily Caller has the story (emphasis is mine):

Friday on HBO during “Real Time with Bill Maher,” former New York Gov. Eliot  Spitzer broke with liberal tradition, saying the Supreme Court’s 2010 decision  in Citizens United v. Federal Election Commission was the right call.

Spitzer explained, as he has before, that the Court’s decision is consistent with with the First Amendment.

“Now, having said that, Bill, we rarely disagree. I am with the ACLU  [American Civil Liberties Union] on this one. I think as a First Amendment principle, Citizens United was correct.”

He told Maher that there is no distinction between some shows on the airwaves — all owned by corporations — and a company’s participation in politics through  paid advertising.

“Your show is owned by a corporation,” Spitzer said to Maher. “You have a  First Amendment right. And so I don’t know how you distinguish between the New  York Times editorial page, The Rachel Maddow Show, George [Stephanopoulos]‘s show — all owned by corporations.”

“The First Amendment,” he reminded Maher, says government “shall pass no law  abridging the right of speech.”

“Doesn’t say by anybody. It says speech. I don’t care whose speech it is. The  ACLU agrees with me, and Larry Lessig, great academic, on this. So this is a  more textured issue. It has done horrific things to politics. But as a First  Amendment issue, it’s a much more complicated issue.”

So, folks, here is how it works. Supreme Court Justices are sworn to uphold the United States Constitution as written, not as they wish it had been written. Thus, they can, and often do, make rulings that are unpopular and seemingly, or even actually, “bad” for the country.

If you gave me a dollar every time a left-leaning legal scholar said the Citizen’s United decision was wrongly decided because the consequences of the ruling will be bad for the country, I would have a lot of dollars. It is utterly irrelevant what the consequences of a constitutional provision is or may be for the country, for the world or for a private individual living in Peoria. Supreme Court Justices must decide cases on what the constitution says, not on what they wish it said. If they do anything more than that, they are violating their sworn oaths and should be impeached.

Liberals - at least when the majority of the Justices are of their political persuasion – are perfectly willing to allow Supreme Court Justices to amend the constitution as they see fit thereby rendering moot Article V of the constitution which states that,

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Clearly, and for good reason, the founders wanted to make it difficult to amend the constitution. But you know how liberals are. When they get a world-saving, epoch-altering, tradition-shattering, Utopia-making notion in their addled brains – which is to say all the time – they become simply too impatient for any belabored Article V nonsense. Instead, they prefer the quick-acting Tinactin of allowing life-tenured, unelected, unaccountable Justices to amend the constitution as they see fit.

Liberals talk a lot about separation of Church and State and not enough about the separation of powers within the State.¹ The Supreme Court interprets constitutional laws. It does not make them. If you don’t like the way it interprets those laws, Article V has provided the means by which you can change the law. The only means.

There are a lot of things we don’t like about the original constitution. That is why we have found it necessary to amend it twenty seven times. If you don’t like the decision in the Citizens United case, you”re going to have to make it twenty eight. But the fact that you don’t like the decision is not evidence that the case was wrongly decided.

Footnotes:

¹  President Obama – a former constitutional law professor at Harvard, no less – also does not seem to understand the concept of separation of powers. If he did, he would not have, at his 2011 State of the Union address, publicly excoriated the Supreme Court for its decision in Citizen United. When he did that he jumped over the constitutional borders of Executive privilege and trespassed on the territory of the Judicial.

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