Response to Ledger on Citizens United

To predictable howls of leftist outrage, the SCOTUS recently declared that groups of citizens, called "corporations", may spend money on political campaigns.

Consider the curious leftist reading of the First Amendment: the corporation known as The New York Times enjoys a constitutional right to endorse or oppose candidates, but the corporation known as Exxon does not.

Allegedly lamenting the reversal of precedent, leftists object that judicial nominees, like Samuel Alito, promised to be "modest", and that upsetting statutes and rejecting precedent betrays that promise.

Again, a curious – indeed crassly situational – objection. Leftists voice no displeasure whatsoever when the statutes under judicial attack define marriage, or when the precedent reversed results in limits on capital punishment.

Critically, leftists object less to the reasoning in Citizens United than to the result. This represents the basic distinction between "conservatives" and leftists. Leftists only care about results.

"Conservatives" (a word with little meaning when applied to judges) go where the text and history of the constitution take them, not to the destination they might ideologically prefer. "Conservatives" believe that the words of the Constitution mean what the people who adopted that document intended. Leftists assert that the words mean, essentially, nothing; that they should be judicially "interpreted" to mandate politically desirable results.

"Conservatives" respect precedent because the rule of law requires it. Judicial modesty compels deference to the results reached in prior cases. But judicial modesty, while salutary, must be tempered by the occasional necessity to invalidate popular, but unconstitutional laws. And, sometimes, precedent is just plain wrong.

Were precedent sacrosanct, Plessy (separate-but-equal) would remain unchallenged and lawyers would routinely cite Dred Scott.

"Conservatives" believe that precedent consistent with the original public understanding of the Constitution must be followed. When, however, a previous Court diverged from that understanding, the people’s will trumps the opinion of a previous Court.

Judges, being human, occasionally permit politics to color their decisions. Sometimes, they simply goof. Were precedent immutable, judges, not the people, would write the supreme law, and the crassest judicial usurpation would be etched in constitutional stone. Not being gods, the work of judges must be subject to continual review. When clearly demonstrated to be erroneous, precedent must fall.

Just so here. Whether unlimited spending on campaigns constitutes good policy is irrelevant. Political advocacy, individual or collective, seems to be precisely what the First Amendment intended to protect against governmental restriction. Previous judicial determinations undercutting this freedom seemed based more on ideology than a fair reading of the text. The Court considered their rationale, then properly rejected them as erroneous, inconsistent with the original understanding.

There is nothing the least bit "modest" in blindly refusing to reconsider flawed precedent or acceding to unconstitutional government policy. Indeed, doing so constitutes gross judicial malpractice.

The Court got it right in Citizens United not because the outcome was politically desirable (that’s debatable) but because the reasoning was constitutionally correct.