Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

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Are There Any Tories On Tory Hill?

fairlie3In a few months, the Marquette University Law School community will pack up and move to its new building, located on Tory Hill.  Perhaps this is a good time to consider whether any actual “Tories” will reside there.  This is doubtful, because American political thought does not have a history of embracing the Tory philosophy.  Nonetheless, in today’s political climate, we all might benefit from hearing an occasional Tory point of view.    

The Republican Party in America currently stands at a crossroads.  There has been a great deal of debate within the political punditry concerning whether the Tea Party movement is a positive or a negative development for the Republican Party.  Some observers have noted the friction between the rage being expressed by Tea Party activists at the government bailout of the financial markets and at the expansion of government regulation of the health care sector, on the one hand, and the more business and government friendly track record of establishment Republican officials on the other.  This friction was most evident last month, when conservative activists rejected the establishment candidate put forth by party leaders for the 23rd Congressional District in New York, split the Republican vote, and delivered the seat to a Democrat.   

Similarly, Sarah Palin’s book tour has engendered speculation about her future political plans.  Some have applauded her anti-Washington and anti-big government philosophy as reflective of the public‘s current attitudes.  In the wake of the Administration of President George W. Bush, who spoke like a “States’ Rights” Texas governor while simultaneously expanding the federal government in the name of education and national security, many conservatives look to the former Alaska governor as someone who might actually govern in accord with a political philosophy that promotes decentralized government.  However, other observers have questioned whether Sarah Palin’s appeal extends beyond regional and rural areas of the country.

Democrats have their own problems.

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Federalism and Criminal Law

mapThis is the fourth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems?  But federalism issues can also appear in criminal cases that originate in federal court.  In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute.   (I have posted several times about ACCA in the past year, most recently here.)  Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury.  For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes.  Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law.  (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.) 

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