Constitutional Consistency
Is it asking too much?
No one ever accused progressives and conservatives of being overly consistent about freedom. After all, we classical liberals frequently say we want the State out of both the bedroom and the boardroom, in contrast to progressives and conservatives who seem only to care about one of the two. Recently, this inconsistency has been particularly clear with respect to how each side views the U.S. Constitution. It seems as though the group out of power suddenly comes to love the Constitution, while those with power tend to quickly forget any love they might have once had. This dynamic can been seen in the left’s and right’s contrasting reactions to two events over the last decade.
After 9/11 a nearly unanimous Congress passed the Patriot Act, and the Bush administration began to implement a number of policies that strengthened the power of the executive and reduced the due-process rights of people accused of terrorist activities. The response by many on the political left was quick and loud: These anti-terror policies were unconstitutional. They violated long-standing central portions of the constitutional protections of the rights of the accused and were an attempt by the Bush administration to claim near-dictatorial powers. These folks, rightly in my view, argued that even if the threat of terrorism were real, wartime concerns do not justify abandoning those constitutional protections. If anything, that’s when they are most important. Other goals, however desirable, do not trump constitutional rights.
On my own campus a group of my left-leaning colleagues formed a group called “Save Our Constitution” and even had a one-day teach-in on the various issues. (I was a member of that group and participated in the teach-in.) Suddenly the left was very interested, and rightly so, in defending that old piece of parchment. The right, of course, argued that the terrorist threat meant that we could not afford to worry about constitutional niceties. After all, democracy itself was under potential threat, so this was not the time for strict constructionism.
Progressives in Power
Fast forward to the last month or so. Now progressives have control over both houses of Congress and the presidency. Their power is checked only by the Supreme Court. And in the recent Citizens United decision, the Court decided that the Constitution protects the right of associations of individuals, in the form of corporations, to express their views about political candidates at any point in the electoral process. The decision was a powerful vindication of First Amendment rights of free speech, overturning one of the worst pieces of the McCain-Feingold campaign-finance legislation.
Many of the very same progressives who were so interested in “saving our Constitution” and who argued that threats to democracy don’t override protections of individual rights, have suddenly forgotten all those ideas in their rush to condemn the decision. Recognizing corporations’ freedom to run ads favoring or attacking a candidate has been interpreted in apocalyptic terms by many on the left. (Corporations and unions still cannot directly finance campaigns.) Progressives see it as the beginning of the end of democracy, as the selling out of politics, and as further evidence of the destructive power of corporations. Many have argued that the First Amendment doesn’t apply to corporations (although they seem to exempt newspaper and other media corporations from that claim), and others are proposing all kinds of constitutional amendments to carve out exceptions to the First Amendment. In summary, when democracy is under threat, the Constitution doesn’t apply.
Or in other words, they are adopting the same kinds of arguments the defenders of the Bush administration made earlier, which the left rightly criticized. And the new-found love of the Constitution on the part of many conservatives in the wake of Citizens United is equally inconsistent with the arguments they were making just a few years ago.
Higher Goals
Both left and right claim that their particular concerns are sufficient to ignore the plain text of the Constitution in order to achieve some higher goal. But these dueling claims only serve to remind us that the whole point of having a constitution is that it should provide consistent protection for individual rights no matter who is in power or what the rationale is for weakening that protection. Having a constitution is a way of trying to avoid these sorts of arguments over what “social goals” are more important than protecting our rights. A constitution reminds us that no social goals are that important.
It does not matter whether the asserted threat is from corporations or terrorism, and as Will Wilkinson has noted, the threat of corporate power serves the same function for the left as the threat of terrorism does for the right: instilling fear in the populace so as to justify increases in State power. No assertion of a threat requires that we sacrifice our rights. That is the only consistently constitutional position.
Pingback by Liberty Reads for February 18, 2010 | Liberty Movement HQ on 18 February 2010:
[...] Liberty Reads for February 18, 2010 Constitutional Consistency [...]
Comment by Christy on 18 February 2010:
So clearly stated. Beautiful.
Comment by Alencon on 18 February 2010:
However, a poll just released today indicates that 80% of the American people, and consistently across the political spectrum, believe that the court screwed the pooch in the Citizens United decision.
What the decision does is render the impact of free speech something that can be purchased. It unlevels the playing field and that’s a bad thing. It makes the “free speech” of the wealthy more effective than the “free speech” of everyone else.
If free speech doesn’t have a level field of influence, it ceases to be free speech.
Comment by Jeff on 18 February 2010:
I wonder if you could cite the examples of the right saying that “we could not afford to worry about constitutional niceties.”
One example please … from someone in the Bush admin. …
that was a strawman erected by liberals … and shot down by multiple Supreme court rulings …
as far as the latest Supreme ruling from the comments …
“If free speech doesn’t have a level field of influence, it ceases to be free speech.”
Thats an argument for equal outcome not equal access … 1984 all over again …
Comment by Michael on 18 February 2010:
Democrates the Republicans same demon with two heads. We need a Liberty Freedom Party not a Democratic Republican Party. They are both trying to socialize us! Make bigger government. And tell us we have no rights other then the rights some STATE Burocrate Thinks we should have!
Comment by Drik on 18 February 2010:
America has not left the democrat or republican parties.
The parties left us.
Comment by Dale Ogden on 18 February 2010:
I agree. When will people stop voting for two versions of the same tyranny?
Dale Ogden, Libertarian
2010 Candidate for Governor of California
http://www.daleogden.org
http://www.daleogden.net
Comment by Tom Blanton on 18 February 2010:
It seems to me that the recent Supreme Court decision has nothing to do with protecting individual rights. First, corporations have no natural rights – they are fictitious entities. Second, the people who make up the corporation were not made subject to any restrictions on their speech that doesn’t apply to all other individuals.
The real debate is should corporations have constitutional rights while at the same time enjoying limited liability and the inability to go to prison, bleed, and emotionally suffer under tyranny.
The reality is that the recent decision probably won’t have much of an effect. In the long run, it may just increase the costs for corporations to influence politicians as there will be more air time to purchase.
Comment by Michael M on 18 February 2010:
“And in the recent Citizens United decision, the Court decided that the Constitution protects the right of associations of individuals, in the form of corporations, to express their views about political candidates at any point in the electoral process.”
I’m going to get a lot of flak for disagreeing with the Supreme Court (like I always do), but I have to:
Corporations are NOT associations of individuals. A partnership is an association of individuals. On the other hand, a corporation is an artificial legal entity created by a government. Individuals can work for a corporation, they can own (part of) a corporation, they can interact with one through the market place, but they cannot BE one.
The idea that corporations deserve the same rights as natural people has been a piece of wool pulled over our eyes so that we don’t notice the planting of a new aristocracy amongst us since 1819. Corporations, as the products of government (rather than a PRE-EXISTING association simply recognized by the government, as partnerships are) are and ought to be subject to those governments. The people who work for them or own them retain their right to free speech, but no one acting in a capacity as an agent of a corporation is guaranteed a right against interference from the government unless we pass an amendment to the Constitution laying out that guarantee.
The rights recognized by the US Constitution apply to natural people alone, who precede the government, and should not be extended to artificial people, who are created by it.
Comment by James Nellis on 19 February 2010:
“What the decision does is render the impact of free speech something that can be purchased.”
Wrong, it indicates something that can be sold. The bottom line is that if politicians weren’t in the business of granting favors or selling their votes, every single issue surrounding campaign finance reform would be irrelevant.
Comment by Wayne B on 19 February 2010:
First of all newspapers are included in the Constitution as the adversaries of government and necessary for an informed electorate. They do not of themselves have free speech rights but a vehicle for the rights of the people. In order for those who would do so to create a tyranny must first take over the means of disseminating information and therefore constitutionally the term press or media includes those other than newspapers.
The constitution empowered those citizens who should have a voice in governance by granting the vote. No citizen or person has a right to interfere in the process of governance that was not given the vote in order to do so. The ruling by the Supreme Court was to invent a new citizen that, unlike the news as an adversary of the government, gave to corporations undo ability to influence the electorate for it’s own purposes.
So it could be said that the press has been given constitutional power to either disseminate information or disinformation with competition making it tend toward information. Corporations, on the other hand have no reason or competition to do anything except spread disinformation aimed at increasing that for which there is little other reason for it’s existence of increasing profit for itself. Strictly on the basis of that lack of motivation to deal honestly with the best interest of the country as opposed to its own best interest there is no reason to believe that the writers of the constitution ever envisioned such a legally created entity being granted more rights as a citizen than that of an actual person. Yet the Supreme Court has decreed that an entity that the constitution does not recognize as a person must be afforded not just the rights of a citizen but even more since no person can possibly compete for free speech (as defined by the court) with the money which is the only reason for a corporations existence to amass) Yet this non_person becomes not only a person, but a citizen in every respect except actually granting them the vote.
That it was the intent this Supreme Court to create a Corporate States of America is rather obvious. The only thing they failed to do in investing personhood upon corporations was to declare them actual citizens with the right to vote. As the Nazi’s determined before World War two you do not need the vote if you can control the information available to those that have it. The Supreme Court intentionally insured that only those with free speech (read lots of money) would have control of the government. A sane person would have said instead only those that the constitution recognized as given the vote in order to have an effect on governance as the only one with a ‘right’ to interfere with the outcome of an election.
Pingback by Militant Libertarian » Constitutional Consistency (Is it asking too much?) on 20 February 2010:
[...] by Steven Horwitz, The Freeman [...]
Comment by John Anello on 20 February 2010:
Mr. Horwitz,
While I usually find your work nothing short of brilliant you made some assertions in this article with which I must disagree. You imply that the US Patriot Act is unconstitutional and an encroachment on civil liberties. History suggests there is a strong constitutional basis for the US Patriot Act. Ex Parte Quirin, better known as the Nazi saboteur case, holds that it is within the President’s power as commander in chief to detain unlawful enemy combatants for violation of the laws of war and for providing aid and comfort to our nation’s enemies. Enemy combatants are not, and have never been, entitled to the same due process rights as common criminals. There is simply no constitutional basis for providing them with such.
Furthermore, with a few rare exceptions, there is no evidence of widespread abuse of the Patriot Act. This is not to say that law enforcement is perfect, mistakes can and certainly have been made, but for the most part the law functions quite well. Moreover, any United States citizen who is imprisoned under the US Patriot Act is certainly entitled to a Habeas Corpus petition and all of the privileges and immunities that the Constitution provides. If law enforcement is indeed wrong and falsely imprisons a person under the US Patriot Act they also would have a civil claim against the government official responsible for their detention. I do not see where civil liberties have been greatly diminished under the US Patriot Act.
Comment by John Anello on 20 February 2010:
Michael M,
Your focus on whether or not a corporation is the same as a person is irrelevant for a discussion regarding United v FEC. The 1st Amendment states that Congress shall pass no law abridging the freedom of speech. It does not say anything about speakers. The 1st Amendment protects speech without regard to how people chose to speak. If they choose to speak through an association such as a corporation or a business partnership they should enjoy the same protection under the 1st Amendment as a person who chooses to speak as an individual. Bottom line, the speaker is irrelevant, while what they are saying may matter, Congress cannot prohibit speech based on who is speaking.
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