I’m away from home and on a laptop, so no links and sparse blogging the rest of the week. And away we go,

1. If the left is correct that corporations cannot exercise constitutional rights on behalf of the management or shareholders, then New York Times vs. Nixon must have been wrongly decided. Someone else must have pointed this out right? If Citizens United cannot exercise rights under the First Amendment, then neither can any other corporation right?

2. I was listening to MSNBC’s radio feed last Saturday morning and the segment was about how everyone loves the First Amendment, but now conservatives were using it. The sense was that conservatives were cheating. Peter Lawler likes to say that guys like Anthony Kennedy think of words as weapons. Some (and I think ever more) activists on the left think of the Bill of Rights as one of those guns with (left) palm print recognition technology. Only authorized personnel may claim protection under the Constitution. If you look around, you can even find rationalizations about how the protections of the Bill of Rights should be used to protect the “marginalized” (like the Obama administration presumably), but not to protect the oppressors (you know, like the Little Sisters of the Poor). “Marginalization” is more a badge of whether one is on the right team. Let’s look at opponents of contraception (of which I am not one). I’m not talking about Hobby Lobby which covered like sixteen forms of contraception. I’m talking about opponents of all contraception. This group is politically marginalized by any reasonable measure, but they are not “marginalized” in the more important sense of enjoying the sympathies of those who strongly identify with Team Left.

3. Another thing that strikes me about some on the left is the degree to which they have adopted John Calhoun’s approach to constitutional norms. Calhoun would start with a favored policy outcome, constitutionalize it, and then ignore actual constitutional provisions and practice in pursuit of this goal. That’s how he decided that every state could suspend federal tax collection at will within its borders. This Calhounian approach led to Chief Justice Taney’s insane reading of Article IV section 3 so that Congress under the Constitution had less power (contrary to all precedent) to restrict slavery in US territories than did the congress under the Articles of Confederation. You start with the understanding that Constitution protects slavery in the territories and you work your way back ignoring and inventing as you go.

That seemed to be the reasoning in the case of the zones limiting protest outside abortion clinics. Let’s start with what the case is not about. It isn’t about violent fanatics. Such zones will not stop them. It isn’t even about harassment. The same rules about disorderly conduct apply to pro-life protestors as everyone else. This was about restricting peaceful speech and petition because it might change someone’s mind about having an abortion. You start with an absolute right to an abortion (unlike the very circumscribed freedom of religion) and you work your way back ignoring and inventing. When maximizing the power of abortion advocates is the goal, the First Amendment disappears for some radical abortion activists just like Article IV section 3 disappeared for the intellectual heirs of John Calhoun.