Bench Memos

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File Under Loose Ends, Tying Up Thereof


Last week, while I was up in my ivory tower myopically grading final exams and papers, Robert Alt criticized my criticism of Rep. Tom Feeney. A quick review: the congressman slammed Justice Stephen Breyer for embracing a version of judicial review that would produce “[p]olicies dictated from the bench that nullify decisions made by representatives” who are democratically elected. I noted that shortly thereafter, Feeney complained that the Court had refused to overturn the McCain-Feingold campaign finance law. I characterized this as the congressman calling for the very “policies dictated from the bench” in defiance of democratic norms that he had just decried. Robert then took me to task for apparently claiming that “the very act of striking down an act of Congress is per se anti-democratic,” which he argued it is not, at least when the Court is rightly defending the more fundamentally democratic “will of the supermajority as expressed in the Constitution.” (All caught up now? Whew!)

It is true that my brief posting did not explicitly take into account what might be called the democratic character of judicial review. That’s a point well scored. To that argument my only plea is that I was being provocative–and I appear to have provoked Robert.

But Robert appears also to have recognized that the real burden of my argument was in my statement that, contra Feeney, “the First Amendment contains no judicially applicable principles that can be brought to bear on campaign-finance-policy questions.” The core of Robert’s reply is to indict me on four counts (the enumeration that follows is mine) that my argument “finds [1] no support in the opinions of any of the Justices in McConnell, or [2] in the numerous prior opinions of the Court regarding campaign finance, or [3] in modern scholarship concerning the First Amendment, or [4] in the text of the First Amendment itself.”

I plead guilty, with no groveling for a merciful sentence, to the first three counts of Robert’s indictment, but not the fourth. I seek no support in such flimsy foundations as the McConnell opinions of any of the justices, or any of the opinions of the modern Court on campaign finance, or modern First Amendment scholarship. Every one of those sources assumes the answer to the question at issue here: whether the First Amendment contains any “judicially applicable principles” regarding campaign finance. I would go further. I am more and more convinced every day of the view that the First Amendment contains no judicially applicable principles at all, with the possible exception of the clause least attended to, the one at the end that declares “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That clause at least has the virtue of stating a right that a court can get its hooks into with recognizable legal principles. Most of the remainder of the First Amendment states “freedoms” of a surpassingly nebulous sort–as Alexander Hamilton astutely noted in Federalist 84 with respect to the comparable expression “liberty of the press.” And the fallacy is obvious in the reasoning that proceeds thus: 1) the Constitution establishes some form or other of judicial review power; 2) the First Amendment states some limits on congressional power; therefore 3) the Supreme Court may “enforce” the First Amendment.

For the sake of brevity on a subject I am planning to say a lot more about in a forthcoming book, I will just state a bald conclusion here. It seems to me that it is quite impossible for the courts to “enforce” the First Amendment without making inherently contestable policy judgments, with no discernible content by way of intelligible legal principles. I adduce the McConnell ruling as Exhibit A; I cannot find anywhere in its 298 pages a real legal principle enunciated by any one of the justices. I like the policy pronouncements of some of the justices better than those of others. But I do not deceive myself that they are doing their own proper business. And up here in the ivory tower, and wherever constitutional conservatives are to be found, there are no constitutional questions that are entirely closed to inquiry by appeals to modern consensus.


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