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.

Advice

Fred Snowflack asked what advice I would offer the new Governor. Although Chris hasn't called, here are my thoughts:

Our new Governor suffers from no lack of advice. Obviously, economic prosperity benefits everyone, and – as our state motto provides – "liberty and prosperity" are inextricably intertwined. As his predecessors conclusively demonstrated, huge government, crushing taxation, and massive regulation – the antithesis of liberty – also preclude prosperity. The most vulnerable among us are infinitely better served by the boundless opportunity a free and prosperous economy produces than by obscenely expensive, economically catastrophic, governmental guarantees.

So: impose a low, flat, income tax; eliminate the death tax and corporate taxes; cut spending EVERYWHERE, however much Fred Snowflack screams about balancing the budget on the backs of the poor; listen to Bret Schundler, your new education Commissioner, and endorse school vouchers (which advance freedom and cut costs); veto any spending program which contains an affirmative action or prevailing wage requirement; eliminate interest arbitration, tenure, and other cost drivers; repeal the Highlands Law; insist that adults who receive a benefit from government (like a college education) give something back in return; abolish defined benefit pension programs. In short, get government out of the redistribution business.

But there’s a huge caveat: many of the most profoundly destructive policies of the last half century resulted from judicial mandates.

Were those decisions based upon a fair reading of the NJ Constitution or a statute, they would be entirely unobjectionable. But, often, they lack any basis in the text and history of the relevant document.

Consider: a simple phrase in the Constitution, empowering municipalities to zone, somehow morphed into an obligation to construct low-income housing on pristine meadows in the boonies. A constitutional obligation to establish a "through and efficient system of free public schools" metastasized into a mandate to underwrite the entire cost of public education in certain favored urban municipalities. (To the tune of more than $30K per kid in some towns). That same constitutional provision, which restricts its scope to kids between five and 18, somehow now requires preschool for three- and four year-olds.

And these represent only the tip of a judicially created iceberg. The Court declared a portion of our own Constitution illegal when it produced legislative districts the Justices disliked. It ignored clear time limits in a statute to facilitate the infamous Torricelli switcheroo. It spent decades frustrating the imposition of capital punishment on indisputably guilty murderers.

The merits of the policies themselves are irrelevant; judges possess absolutely no authority to impose even the most salutary policies upon a recalcitrant polity. The people – directly through the Constitution or indirectly through their elected representatives – are free to make idiotic laws (and, alas, routinely do). A judge, confronted with a truly moronic law, might sigh and shake her head, but may not legitimately ignore it.

Few Justices of the Supreme Court have ever been noted for even modest constitutional scholarship. And it shows. Often, a dispassionate reader of a Supreme Court opinion wonders when the political tract will end and the judicial opinion begin. (Generally, the more ringing and strident the prose, the worse the opinion)

The Governor’s judicial nominees ought to be clearly on record as expounding an originalist philosophy: the constitution means what the people who wrote and ratified it intended it to mean. It is not an empty vessel which judges may legitimately fill with their own policy predilections.

Merely appointing respected lawyers is insufficient. No one doubts that (say) erstwhile Chief Justice Wilentz wielded massive intellectual firepower, but his tenure was an unmitigated disaster, because he failed to appreciate the distinction between adjudication and legislation. Former Chief Justice Poritz possessed the requisite resume, but her tenure was even worse. NOT because the policy results were wrong, but because the judiciary lacks the legitimate power to impose them. Lawyers who desire to see their policy prescriptions written into the law should run for office; they should be kept far away from the judiciary.

New Jersey’s Supreme Court has been a national embarrassment for decades, repeatedly – and improperly – insinuating itself into the political arena. The baleful consequences of that judicial usurpation of legislative authority are patent. A glance at one’s property tax bill demonstrates the hash an arrogant judiciary made of education, zoning, and tax policy.

So, my advice to Hizznonor: select judges who understand the (very limited) nature of judicial power and who will adhere to the text of the documents as written, not as the jurist might wish them to read.

Mammography Matters

I confess; campaigns depress me.

When I read The Federalist, and stop to think that those works represented the period equivalent of campaign flyers, the quality of the present discourse stands revealed in all its idiocy. While not the only offenders, Democrats specialize in campaigns designed to insult the intelligence of the electorate and, alas, all too often, the electorate proves that insulting its intelligence is a very difficult proposition.

Imagine being transported back to June, when Chris Christie became the GOP nominee. A Corzine campaign official approaches you and asks your opinion on the proposed Corzine strategy:

First, the Guv, who almost got himself killed while moving at Star Trek speed up the Parkway unbelted, will chide Christie on his driving record. Second, a man who was, quite literally, in bed with a state employee/union leader; who lent her hundreds of thousands, which he then forgave; who – inexplicably – felt compelled to arrive at a million-dollar financial settlement to break up with said girlfriend; who arranged a state job for her sibling; and who moved legal mountains to avoid disclosing e-mail correspondence with her in her, will castigate Christie on a wholly innocent loan to a friend. Lastly, a man who may well be the last unindicted elected official in the Democratic Party will imply that Christie lacks ethics?

And when you got up off the floor...?

What any of this has to do with either candidate’s qualifications to serve as Governor is not patent. Clearly realizing that the people despise Corzine’s policies, the left decided that its only hope lay in destroying Christie personally. Alas, the trivia they dredged up had, seemingly, precisely that effect.

To their credit, the Republicans have not been nearly as personally negative as have the Dems, concentrating their attacks on Corzine’s horrendous record as Governor. Then again, given Corzine’s abysmal approval ratings, GOP restraint might have resulted less from qualms about the tactic than from the realization that the 40% of the electorate which feasts on taxpayer largesse was unlikely to be dissuaded from their socialist benefactor.

But of all the idiocy flowing from the Corzine camp, nothing rivals mammograms.

Christie, quite reasonably, proposes permitting interstate competition among health insurers to lower costs. Legislatively imposed coverage mandates make an individual policy in NJ the second most expensive in the nation, lagging only Massachusetts – which adopted Obamacare, with entirely predictable, hugely expensive results. Meanwhile, a policy in Wisconsin costs 1/4 what a policy in NJ costs.

If we permit interstate competition, a woman choosing to purchase a mandate-free policy, ala Wisconsin (where, apparently, misogynists rule and women die in droves from the want of preventative care) saves about $4,000 per year.

But – horrors!! – that policy might not cover mammograms.

Since you’re a fairly intelligent woman, you decide to (gasp!) think. A mammogram costs about $125. Let’s be generous and quadruple that. And, depending upon what advice you follow, you might get one every 2-3 years.

So. Save $8,000 to $12,000 in premiums, and shell out $500 for a mammogram, or pay those massively inflated premiums to get the "free" mammogram. $12,000 v. $500; what option would a rational, thoughtful woman take? (Take your time.)

Clearly, the Corzine camp is NOT appealing to rational, thoughtful women.

Or rational, thoughtful men, either.