Scott versus Scott

Welcome to our blog. Here we will debate the days most serious topics and allow users the chance to discuss the topics as well. The range of topics will vary, but one thing will remain certain, the debate will rage on. Scott Lesinski is a proud conservative and Scott Jones is a proud liberal. However, the roles will switch on some topics. Stay tuned.

Scott Lesinski is currently an actuarial associate for a large human resources and insurance consulting firm in Saint Louis. He is also an avid student of US history and enjoys following current events, with an eye to their contextual relationship to the past. He is also, in fact, a former student of Mr. Scott Jones. Scott is working toward his FSA credentials, which is akin to earning a PHD in Actuarial Science.

Scott Jones is currently a high school social studies teacher at a high school in suburban St. Louis, MO. He teaches World History, AP American Government and Senior American Foreign Policy. He has a BS. Ed. (Secondary Social Studies) from the University of Missouri - Columbia and a M.A. (History) from Southeast Missouri State University. He is currently working on a dissertation in character education to earn a Ph.D. in Educational Psychology.

Friday, January 29, 2010

Citizens United and Conservative Constitutional Hypocricy

My, oh my. Conservative judicial activism in alive and well on the Supreme Court.

In a long awaited decision in Citizens United v. FEC, the conservatives on the Supreme Court overturned precedent and 75 years of law. By doing so, corporations can know spend an unlimited amount of money to directly influence elections.

This is too far. When the conservatives on the Court overturned precedent in allowing interest groups the ability to air commercials directly before election in Wisconsin Right to Life v. FEC, I understood the Court’s concern about McCain-Feingold and restriction of a political group’s right to free speech.

This reasoning used by the Court in Wisconsin Right to Life is based on the consideration that money given to a special interest like Planned Parenthood or the National Rifle Association was given for political purpose by constitutionally protected individuals. At least that is logical.

The Court’s decision in Citizens United, however, is stunning.

The Court gave corporations the right to spend freely in elections, the same as a private individual’s speech rights in an election. According to the Court, the corporation is the same as a private individual and any legislation that treats its rights differently than those of individual rights is an unconstitutional intrusion on the rights of the corporation.

Of course, corporations have tens of billions more in cash available to use in elections than individual citizens. Now these corporations can use their vast treasuries to run ads to directly influence elections. Just like individuals protected by the First Amendment.

While the Court avoided the question of foreign-owned companies, headquartered or operating in the United States, running commercials to influence elections, it is not far down the not-so-slippery slope for this outcome to become real.

(Yes, Mr. President, you misstated this as a factual conclusion of the Court in your State of the Union addressed that Justice Alito openly refuted. Right now, this is just conjecture.)

After all, how can Congress make laws for one corporation and not another in order to please the Court’s equal protection mandate handed down here.

If you think special interests are a problem now, just wait.

If one logically follows the Court’s opinion and extrapolates it into the future, it is not hard to believe that the conservatives on the Court would support granting corporations the right to vote, which is something Justice Stevens correctly pointed out in his scathing dissent of the majority.

However bad I think the decision was in terms of special interests and direct corporate spending in elections, it is nothing in terms of how hypocritical conservatives are in their constitutional interpretation.

Let’s start with an overview of modern conservativism’s original interpretation of the Constitution. You will sometimes see this view called a Formalist View of the Constitution.

Originalism, as defined by today’s conservatives, holds that we must use the original meaning of the Constitution to decide Constitutional issues today. In order to find that meaning, we use the text of the document itself, the writings of the Founding Fathers and the original State constitutions. From this textual study, we need to figure out how Thomas Jefferson, John Adams, Alexander Hamilton, John Jay, George Washington, James Madison, Ben Franklin AND, not or, others would decide the case before the Court today.

Furthermore, Originalism holds that if the record of the founding in unclear or contradictory, judges must show restraint and not create new meanings of the Constitution. In these cases, tremendous deference must be shown to the legislatures, State and Federal, by judges.

A sound principle.

While I might not agree with it in terms of addressing issues that have developed in the modern world, it is one of the historically accepted ways of interpreting our founding document.

Conservatives, however, see no other valid way of Constitutional interpretation.

At least, that is what they say. Actions speak to other conclusions.

Let’s take the Citizens United case.

This case gained fame for another reason. It was originally heard last term. However, unable to reach a conclusion, it was held over for another oral argument. This is very rare. Very rare. The Court doesn’t give reasons for this, but it does speak to the difficulty in reaching a decision. In fact, it is just the twelfth time in our nation’s legal history, and the first time since 1974, the Supreme Court has done such a thing.

For this case, the Court held a special, and also very rare, oral argument session in early September for the rehearing of the case. By doing so, court watchers believed that the Court did this so that they could issue an opinion before the regular term began the first Monday in October, the Court’s traditional starting date.

However, the decision was not handed until the middle of January. This case has also disrupted the Court’s ability to hand down decisions in a timely manner. This session has been marked by a noticeable lack of opinions so far, even the Court’s caseload is normal. Court watchers have theorized this lack of opinions is due to the disruption Citizens United has caused for the nine justices.

If nine of the most intelligent legal scholars our nation has to offer can’t decide this issue in a normal period, then doesn’t that mean they should give deference to the legislatures and show restraint?

Apparently not.

The decision in this case is further troubling from an originalist perspective in two ways.

First, at the time of the Founding, corporations and broadcast airwaves did not exist. If these things did not exist at the Founding, then originalism does not allow for judges to “make up” the law. This is the argument conservatives have claimed liberal judges have been doing for years.

Second, the historic backgrounds in Justice Kennedy’s Opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, and Justice Stevens’ dissent, joined by Justices Ginsburg, Breyer and Sotomayor, find different Founding support for their respective arguments.

As one reads both opinions, it becomes very clear that the Founders were divided on how to legally deal with large businesses and the 18th century version of the corporation. Thomas Jefferson argued businesses should not be given the same rights as the individual and Alexander Hamilton argued they should.

To dismiss either Jefferson or Hamilton is to dismiss an intellectual heavyweight of the Founding period. Something originalism proposes to avoid.

In this case, the doctrine of originalism holds then that these issues should be left to legislatures, and not the courts, to decide.

I guess originalism is only good for conservativism when it fits what they want. Otherwise, screw it.

In this case, the conservatives have created a new right for corporations. Exactly what they complain about when liberals do it on the issues they hold dear.

However, when your worldview is what is good for business is good for America, you temporarily adjust your constitutional interpretation to fit that worldview.

When it was nominee Sotomayor, conservatives in the Senate argued ad naseum that worldviews and political beliefs need to be set aside and rulings be based solely on established law and a strict interpretation of the Constitution.

This case shows that conservatives really believe that when your worldview and political beliefs don’t fit your beliefs about the case before you, then adjust the interpretation of the constitution for the issue in order to get the outcome you want.


Liberals have done it in the past. This is called the Realist Interpretation of the Constitution. It is another historically accepted way of interpreting our founding document.

Conservatives need to stop claiming they don’t use it also.


  1. Forgive my ignorance, but I need clarification on the difference between the way things are now and the way they were.

    It may have been a while since I've reviewed this stuff, but I thought there was a limit per person to what could be contributed to a campaign. As a result people would come together and ads would be paid for by "People for blah blah blah" to circumvent that rule. Well if a billionare like Bill Gates and all his Microsoft Board of Director buddies decided to poor their money into a political ad as "individuals" because it is in the best interest of their company, how is that different than those same individuals pooring their money into a political ad as a "company".

  2. Though I am no expert on the SCOTUS regarding the long history of this issue, stare decisis, precedent, etc, I found this excerpt from Justice Scalia regarding the first amendment and this case:

    "The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speakers, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals…Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate."

    It doesn't seem to me as if there is any doubt as to the ability to understand this, at least in reading Scalia's argument. Stare Decisis has its merits, but just because a bad decision was rendered 75 years ago doesn't mean it has to reign forever.

  3. I do understand the need to overturn decisions and that stare decisis is a guide not a rule.

    However, my point in attacking the decision is that is inconsistent with the founding, which originalism demands we should base all of our decision on, or restrain from the Court making rules made unclear by the Founders, which then should be left to the legislatures.

    On the issue of whether or not a corporation (or multi-person owned business) should be protected by the Bill of Rights is one the Founders, namely Jefferson and Hamilton, disagreed vehemently on.

    Therefore, according to the doctrine of originalism, it is not for the Court to determine what we should do. It is, according to the doctrine, then the job of legislatures to determine the course of the nation.

    This is what the conservatives on the Court did. And this is the target of my criticism. While I might disagree with Scalia's interpretation, that is fine. However, the right of corporations to speek freely is not part of what the Founders decided which then makes the decision activist.

    I wish conservatives would at least admit that they have activism in them just as much as what they accuse of liberals of having. This case shows that. Conservatives believe they can make up the law when it fits their ideology.

    That's all.

  4. On a side note to this, I'm really interested to see if this ruling makes a difference in the level of air time bought and paid for by corporations. In all honesty, I don't really expect a huge tsunami of corporate dollars to flow in for two reasons:

    1. Businesses have all kinds of entities to whom they must answer regarding the running of their business, so spending large amounts of profits on political advertising may not be deemed to be a prudent expense.

    2. Businesses must continue to try to survive in all political climates. Unless they really thought a real change was going to happen politically, it would be unwise to attack those whom may very likely be in power writing the rules of their game in a few short months.

  5. Scott - you do have a good point. I'd imagine most corporations would still work through PACs in order to keep their names out of the public eye. I'm sure there will be conservative and liberal watchdog groups monitoring to an extent so that while corporation might be free to give whatever they want, they won't want to...However, nonprofits might be more inclined to spend more, since they might've been formed for political purposes.

    While the decision might have very little impact, it does not, however, change the fact the conservatives on the Court abandoned originalism to hand down the decision. I still stand by that analysis, which was the main point of the entry.

  6. I really should have an institution that defends the national constitution as it is a benchmark for the law and should be fully to the letter but sometimes I think, a kind of manipulation of this permit that is because nobody cares about its meaning and then not respected.

  7. New ABC News-Washingtonpost Poll out there today, says 80% oppose the recent supreme court ruling allowing unfettered corporate spending in campaigns. WaPo claims this percent is across the political spectrum with Democrats, Republicans, and Independents all floating around the same 75%-85% range of opposition. Did the SCOTUS get it wrong?

    I took a look at the actual question asked to the respondants and here it is:

    Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

    This was followed up with:

    Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

    (emphasis mine)

    Unions were already getting their money out; they form these 527 groups and fund those like crazy. Guaranteed that the vast majority of conservatives and independents who "opposed" the ruling did so because of the way the question was asked. Lets separate those two out, maybe explain that all this ruling did was level the playing field for corporations and unions, you'll get a different result.

    I will say that I would agree that many people feel there is too much money in politics; however, on the right, we're just happy that businesses now are on equal footing. If Charlie Rangel wants to limit corporate spending, he'd better darned well talk about Union spending...oh wait...then he'd lose out on millions in campaign contributions...