Monday, March 1, 2010

Democracy is Over Forever

Your fine editors at Lefty’s have been enjoying my take on everything as of recently, and I was asked to perhaps write my thoughts on the notoriously evil Supreme Court opinion that ended American democracy forever. And believe me, I have a lot to say on the Citizens United opinion, most of which the readers of this blog probably won’t enjoy.

But, whatever, let’s start with the most logical point:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Now, this is an interesting amendment within the context of the Bill of Rights because it isn’t prefaced on individuals or the people. The rest of the Bill of Rights protects people and persons; the First Amendment revokes authority from the federal government to enact a verity of statutes.

Alright, now this is going to get a little constitutional law heavy for a moment, but I find it necessary in order for my fine readers to reach the proper conclusions. That, and I like context.

After our constitution was ratified in 1789, the First Congress proposed and successfully ratified the Bill of Rights in 1791. The shitter is that the Bill of Rights didn’t apply to the states. The individual states could do whatever the fuck they wanted, they could establish a religion, impede on free speech, search ANYTHING (Dick Cheney misses those days), so long as the states did not violate their own constitution, they could, and did, whatever they wanted. The Supreme Court decided that this was okay in 1833 in Barron v. Mayor of Baltimore, and for about a hundred more years the states continued to enact their own statutes that would be unconstitutional on a federal level. I hope you are sticking with me…

So then we have a civil war or something and the ‘radical’ Republicans were very very angry at everyone and everything and pretty much did whatever the fuck they wanted (Hey, let’s impeach this Johnson guy FOR FIRING HIS OWN MINISTERS?!). So anyway, they amended the constitution again to make sure black people would gain their last 2/5 of personhood back. Within these, so called, civil war amendments we get the abortion amendment- The Fourteenth!

Section 1 of this Amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And one would think, wonderful. But then the Supreme Court fucked it up and made this amendment really not mean anything for 40 years. But then in 1925, the Court decides a case called Gitlow v. New York where they decide that the "Liberty Clause" in the 14th Amendment now dictates that the First Amendment applies to the states. Because it's "liberty" or something. We call this at the gay communist universities the incorporation doctrine. Eventually, all of the Bill of Rights becomes incorporated by the 70s, but Nixon was too busy breaking every law EVER to notice (Actually, he was busy appointing justices who will eventually turn their back on everything he believes, much like America did to him).

Now you might say, why the fuck would you use the liberty interest and not the privileges and immunities clause to incorporate, it only seems, you know, LITERAL. But no one knows. The end (They do, but honestly, if you are that interested use the google).

So the First Amendment now applies to the states and federal government, preventing the legislatures of the individual states and the federal government from enacting any legislation which abridges the freedom of speech. This law develops over the course of the twentieth century, where several justices begin to interpret the constitution in a variety of ways. The most intellectually convincing of these interpretations, to me, is that of the literalist.

Justice Hugo Black pioneered this novel concept of ACTUALLY READING THE WORDS instead of just saying what ‘what the fuck ever’ and pretending things were in the constitution that may, or may not, be there. Now, I understand the entire game of constitutional interpretation is largely an academic exercise. But because of the authority of the court, and the awesome power of striking down legislation which is in conflict with the founding document, it’s very relevant to our democratic system to utilize some sort of principles when reading the Constitution, especially when considering whether a law is void because it runs against the words and principles of that document.

Therefore, when I read the constitution, and when Justice Black read the constitution, the most principled reading of the non-ambiguous clauses is to simply look at the text. The constitution is an odd document wherein you have phrases such as “The Congress shall have Power To…declare War.” That’s rather straightforward, wouldn’t you say? Additionally, you have clauses such as the Fifth Amendment’s prohibition on testifying against one’s self, “nor shall [an individual] be compelled in any criminal case to be a witness against himself.” Again, rather unambiguous.
Then you have the clauses of the constitution which are just really fucking annoying because who know what the hell this means? “Nor shall any State deprive any person of life, liberty, or property, without due process of law...”. I mean, what does liberty entail? Is it an existential liberty? Is liberty somehow codified by statute? What does this mean the states honestly can’t do? Well, we’ve left that to the infinite wisdom of the Court for the past century and we therefore get the gems that really piss people off like Griswold, Roe v. Wade, and Lawrence v. Texas (Gay people get to have sex as of 2003 because of the word "liberty", neat!).

So people get to fight about what these ambiguous clauses mean, and people get angry and aborted and shit, but the fight will go on forever. But that is all rather inconsequential, for we are finished discussing these types of clauses for now, because the First Amendment IS NOT one of these clauses. It’s as straight forward as you are going to get, let’s read it again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
See, right there, in the opening, that seems rather unambiguous. It’s a flat out prohibition on Congress from enacting any legislation which abridges the freedom of speech. Congress simply does not have the authority (nor do the States if you recall) to craft and enforce legislation which violates ones right to speech or publish (like this web log).

Now, of course, under our system, there are all sorts of exceptions, think libel law, hate crimes etc. I view nearly all of these exceptions, except for those prefaced on manner restrictions, as a violation of the First Amendment. That is, I don’t think some douche bag blowing an air horn at 4 AM is exercising speech; therefore a manner restriction is appropriate. He could quietly say the same shit at 4 AM, and that would be speech. Anything that is thinkable, readable, speakable, all of it, to me, is speech.

And so, this brings us to Citizens United v. FEC

The most absolutely beautiful thing here is that the central issue in Citizens United is not obscenity, or anything else one could debate is actually speech. It involves POLITICAL ads, that is, political expression. I find it hard to believe that anyone here would think it proper for the federal government to limit my access to any type of political speech, especially in the critical days before an election. Well here is the real shitter, §203 of the Bipartisan Campaign Reform Act of 2002 did just that.

Now, I must clear up some misconception on what the Supreme Court did, and did NOT do in Citizens United when striking this section of the statute down. First, the Supreme Court, in the 2007 case of Federal Election Commission v. Wisconsin Right to Life, Inc, struck down the section of the statute which prohibited corporations from spending money on issue ads 60 days before an election. IT WAS ALREADY STRUCK DOWN THREE YEARS AGO. Second, corporations are STILL PROHIBITED, even after Citizens United, from donating directly to any individual political candidate. They simply cannot do it.

So what did Citizens United really do? Corporations are now simply allowed to endorse or attack politicians by name, within their ads. That’s it. The only fucking difference between the 2008 and 2010 elections will be the ability of corporations to name an individual within their ads. They still cannot donate, they still cannot “sponsor” a politician or any of the other hyperbolic nonsense that people fear.

American Democracy is clearly over (Oh who am I kidding, it's been over since that Kenyan became our communist overlord).

Now, allow me to defend the ruling.

The Free Speech clause, which, if you recall, begins, “Congress shall make no law.” The clause isn’t prefaced by personhood, or the identity of whom or what is exercising the speech. It’s simply a prohibition on Congress from enacting legislation which would suppress speech. This isn’t an issue of whether a corporation is a ‘person’ or has ‘constitutional rights.’ Rather, this is a simple reading of the First Amendment which reaches the proper conclusion that prohibiting the distribution of material that contains certain types of speech cannot be good law, because Congress ultimately lacks the authority to enact such legislation.

Other arguments I hear within my liberal circles are also equally unsupported by a proper reading of the First Amendment. One such argument goes "how/why do corporations get more speech than I do, that seems improper" (I hope I am not "straw-manning" my dear friends!). This is fallacious because constitutional rights are not all prefaced on the ability to utilize or exercise them with a certain frequency. That is, if I am a Jew living in the rural south and there are no synagogues around in which I can worship, my constitutional right to freely exercise my religion is not being violated because I lack access. The First Amendment, principally, is not about conferring rights upon the individual; rather, it limits what sort of laws the government can enact. Hence the reason that it is inconsequential whether you believe that corporations are "persons."

A second argument that is popular in my circles declares that money is not speech, and therefore the government can regulate these sorts of matters. This argument is fallacious since the statute was a blanket prohibition of video or speech, by corporations, which named a specific candidate. It was not prefaced on the ability to distribute, or how distribution was conducted. In this specific case, a non-profit corporation called "Citizens United" was prohibited from distributing a video titled Hillary: The Movie for free on the internet, or on-demand video, or on the free public airwaves. The corporation could not, legally, name the candidate in any way 60 days prior to the election.

Citizens United will not destroy our democracy. In fact, most of the hyperbolic "damage" this opinion did was already done in 2007. The floodgates will be no more opened in 2010 than they were in 2008. The opinion may not be rested on the soundest reasoning, or the reasoning I would have employed, however the judgment the Court reached was proper.

This is why I, the President of the Purdue American Civil Liberties Union, along with the national ACLU, support the conclusion of the case. What we can ultimately hope for is that this opinion will be used as precedent in the future to continue the expansion of free expression, in all mediums, of all thoughts, and for all people.

Okay, whew, that may have been long winded, but I think it was necessary. And now that Citizens United is finished, the conservatives on the Court can go back to trying to stop the gays from doing whatever they do in the bedroom (parades?).

To my dear friends here, I look forward to reading and responding to your comments. And I hope I did what I can to shed some light on this matter.

You can reach Nick DeBoer at or


Bill said...

"Most of which the readers of this blog probably won’t enjoy."

Nonsense. I enjoyed it thoroughly. It makes a similar case as the "Liberal Viewer"

which would make sense as he is also from the ACLU.

I'd like to hear what would you think about a Constitutional Amendment to overturn this decision.

Nick DeBoer said...

I dislike a constitutional amendment that would restrict speech. However, I would be all in favor if, either by statute or amendment, to require the federal government to finance all elections. It would honestly cost less than 10 billion dollars every two years, which would be a small price to pay for a strong, working, democracy.

ShamRockNRoll said...

I just finally got around to reading this... This was a good post Nick. It definitely caused me to rethink this case. However, I'm still on the fence about it. I'm disgusted by how much power corporations have in our country. While corporations can't "sponsor" a candidate, isn't running all the ads money can buy for that candidate basically the same thing?

I am all for public financing. So are you saying you would support a ban on corporate ads, donations, etc. in exchange for publicly financed federal elections? How about elections for state office?

Nick DeBoer said...

I wouldn't support limiting the corporations speech on their own behalf, but banning all contributions from all corporations or PACs to a federal campaign would have a great effect on removing their influence from the legislative process.

While they would still be free to share their thoughts to the public, the federal officals would only have to worry about the message and not about who is going to donate to their future campaign etc.