Institutionalism vs. Constitutionalism

As I keep saying, there are different kinds of conservatism.  Michael Gerson makes that point in his discussion of Supreme Court Justice John Roberts’ ruling on Obamacare:

His health-care ruling did expose a division between two varieties of judicial conservatism — institutionalism and constitutionalism — that can lead to very different outcomes.

Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward.

My natural sympathies are with institutionalism as an antidote to judicial arrogance. Donning a black robe does not assume or create a superior knowledge of public policy. Roberts’s desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.

But judges are also not hired as political philosophers, Burkean or otherwise. Their legitimacy comes from a credible application of the law. And the outcome of the health care case came down to one point of law: Roberts’s interpretation of the statute as a constitutional tax rather than an unconstitutional mandate. In his ruling, Roberts admits this view is hardly the most obvious one: “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn’t know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

Even in a short time, Roberts’s decision has not worn well. What initially seemed wise now smacks of mere cleverness — less a judge’s prudence than a lawyer’s trick. To find the health-care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king — hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

via Michael Gerson: John Roberts’s alternate universe – The Washington Post.

Lots of good lines here:  Outcome-based jurisprudence.  Obamacare as a tax on the uninsured.  Fairly-possible interpretations.

I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.

Still, what do you think of this philosophical dichotomy?  Where else do you see it?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • DonS

    “I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.”

    I’m not sure what you mean by this statement — by “recent decision” are you referring to the “Affordable Care Act”, or the Supreme Court decision? I’m assuming the former. That legislation, in itself, was not respectful to our institutions, and is not worthy of protection by Burkean conservatives or anyone else. It was rammed through Congress without proper and due committee consideration, drafted behind closed doors by one political party. It was propelled through Congress with its supporters clearly denying that the individual mandate was a tax, but then promptly defended, once it arrived in federal court, on the basis of Congress’ broad taxing power. On that basis alone, Roberts’ willingness to give credence to this hypocritical defense and re-cast the mandate as a tax was abominable, under Burkean or any other principles. The Court exists, in part, to protect the people from a Congress which blatantly exceeds its Constitutional authority, and if it is unwilling to act because of a fear that it will be damaged by doing its job, it is but a worthless facade.

  • DonS

    “I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.”

    I’m not sure what you mean by this statement — by “recent decision” are you referring to the “Affordable Care Act”, or the Supreme Court decision? I’m assuming the former. That legislation, in itself, was not respectful to our institutions, and is not worthy of protection by Burkean conservatives or anyone else. It was rammed through Congress without proper and due committee consideration, drafted behind closed doors by one political party. It was propelled through Congress with its supporters clearly denying that the individual mandate was a tax, but then promptly defended, once it arrived in federal court, on the basis of Congress’ broad taxing power. On that basis alone, Roberts’ willingness to give credence to this hypocritical defense and re-cast the mandate as a tax was abominable, under Burkean or any other principles. The Court exists, in part, to protect the people from a Congress which blatantly exceeds its Constitutional authority, and if it is unwilling to act because of a fear that it will be damaged by doing its job, it is but a worthless facade.

  • DonS
  • DonS
  • Joe

    I think institutionalism is misguided if we are talking about political institutions. Those institutions only merit our support if they are doing what they were put in place to do. In other words the institution only has value and is only legitimate in light of the Constitution. Thus, fidelity to the Constitution must always take precede fidelity to the institutions. The entire structure of our fed. gov’t was designed to give three opportunities for the gov’t to prevent an erosion of the Liberty enshrined in the Constitution, largely by the creation of a limited federal government. If congress goes wonky and oversteps its authority, the President can veto the bill. If the President fails to veto, then the Court’s can invalidate the law. Thus, the way to preserve the Court as an institution is to step up to the plate and do what it is created to do. Act as the final check to make sure that unconstitutional laws do not stand.

    What about deference to the legislature? Isn’t that was conservatives always harp about — judicial restraint. Unfortunately, the correct idea that a court should not over step its bounds by substituting its own policy judgment for that of the elected political branches has been reduced to a concept that the court is simply supposed to go along with whatever the Congress dreams up. This is an erroneous concept and one that should be rejected by conservatives and liberals alike. The former concept — court’s don’t make policy is sound and should be followed; the latter is hogwash and should be rejected. Justice Roberts statement at his confirmation hearing re: being an umpire was spot on. Unfortunately, his decision makes it look like he wants to suit up and play the game.

  • Joe

    I think institutionalism is misguided if we are talking about political institutions. Those institutions only merit our support if they are doing what they were put in place to do. In other words the institution only has value and is only legitimate in light of the Constitution. Thus, fidelity to the Constitution must always take precede fidelity to the institutions. The entire structure of our fed. gov’t was designed to give three opportunities for the gov’t to prevent an erosion of the Liberty enshrined in the Constitution, largely by the creation of a limited federal government. If congress goes wonky and oversteps its authority, the President can veto the bill. If the President fails to veto, then the Court’s can invalidate the law. Thus, the way to preserve the Court as an institution is to step up to the plate and do what it is created to do. Act as the final check to make sure that unconstitutional laws do not stand.

    What about deference to the legislature? Isn’t that was conservatives always harp about — judicial restraint. Unfortunately, the correct idea that a court should not over step its bounds by substituting its own policy judgment for that of the elected political branches has been reduced to a concept that the court is simply supposed to go along with whatever the Congress dreams up. This is an erroneous concept and one that should be rejected by conservatives and liberals alike. The former concept — court’s don’t make policy is sound and should be followed; the latter is hogwash and should be rejected. Justice Roberts statement at his confirmation hearing re: being an umpire was spot on. Unfortunately, his decision makes it look like he wants to suit up and play the game.

  • reg

    The notion that Scalia and Thomas are strict “constituionalists” does not pass the laugh out loud test. Decisions such as Bush v. Gore (which was a matter for the state not a federal court to decise), Citizens United (corporations are people? really!?!and even the recent second amendment decision (previous decisions viewed the right to bear arms to be in the context of state militias) are no more based on strict construction of the Constitution than the liberals finding dubious penumbras upon which to base decisions. Scalia and Thomas are first and foremost Republican activist jurists. Their decisions are as motivated by personal preferences and ideas of “what ought to be” as are those of the left. As an attorney, the logic in these decisions is laughable and basically ignores centuries of previous jurisprudence. Scalia and Thomas give lip service to “consitutionalism” but not much more. But, hey, as Scalia said after Bush v. Gore, I “should get over it.”
    True constitutionalists no longer exist (or at least do not get appointed.)

  • reg

    The notion that Scalia and Thomas are strict “constituionalists” does not pass the laugh out loud test. Decisions such as Bush v. Gore (which was a matter for the state not a federal court to decise), Citizens United (corporations are people? really!?!and even the recent second amendment decision (previous decisions viewed the right to bear arms to be in the context of state militias) are no more based on strict construction of the Constitution than the liberals finding dubious penumbras upon which to base decisions. Scalia and Thomas are first and foremost Republican activist jurists. Their decisions are as motivated by personal preferences and ideas of “what ought to be” as are those of the left. As an attorney, the logic in these decisions is laughable and basically ignores centuries of previous jurisprudence. Scalia and Thomas give lip service to “consitutionalism” but not much more. But, hey, as Scalia said after Bush v. Gore, I “should get over it.”
    True constitutionalists no longer exist (or at least do not get appointed.)

  • DonS

    Reg @ 4: The “laugh out loud test”? Really? Are you a strict constitutionalist? I’ve never seen any hint of that in your prior comments.

    1. “Bush v. Gore” — why were the issues surrounding a federal presidential election a matter for the state to decide? That seems an odd case for you, a liberal who seems to otherwise freely allow for federal interference with states’ affairs, to make. I’m guessing this means that you are no fan of the Federal Voting Rights Act, and would like to see that legislation struck down as interfering with states’ rights to conduct their own elections. Am I right?

    2. Citizens United — way to spout the ignorant party line! Do you understand what the First Amendment is really about? Here’s a hint — it exists primarily to protect political free speech, the freedom of the press, and the right to free exercise of religion, not to protect porn. You do understand that Citizens United was about the federal government prohibiting people from freely associating into a non-profit organization so that they could pool together their funds to make a political movie about a politician right? And that the law prohibited such political speech within 90 days of an election, contrary to all logical understanding of the First Amendment? What good is free speech if you cannot be heard, because the government prohibits you from organizing to speak with one clear loud voice, in order to protect incumbent politicians?

    3. Second Amendment — huh? The Court upheld the plain wording of the Constitution, rejecting any prior jurisprudence which had distorted and changed that language to suit current political preferences. Strict constitutionalists adhere to the Constitution, even if it means overturning prior jurisprudence that failed to meet that standard. You may disagree with the holding, but you can hardly argue that it was not in keeping with constitutionalism, especially since you are by no means an adherent to that philosophy.

  • DonS

    Reg @ 4: The “laugh out loud test”? Really? Are you a strict constitutionalist? I’ve never seen any hint of that in your prior comments.

    1. “Bush v. Gore” — why were the issues surrounding a federal presidential election a matter for the state to decide? That seems an odd case for you, a liberal who seems to otherwise freely allow for federal interference with states’ affairs, to make. I’m guessing this means that you are no fan of the Federal Voting Rights Act, and would like to see that legislation struck down as interfering with states’ rights to conduct their own elections. Am I right?

    2. Citizens United — way to spout the ignorant party line! Do you understand what the First Amendment is really about? Here’s a hint — it exists primarily to protect political free speech, the freedom of the press, and the right to free exercise of religion, not to protect porn. You do understand that Citizens United was about the federal government prohibiting people from freely associating into a non-profit organization so that they could pool together their funds to make a political movie about a politician right? And that the law prohibited such political speech within 90 days of an election, contrary to all logical understanding of the First Amendment? What good is free speech if you cannot be heard, because the government prohibits you from organizing to speak with one clear loud voice, in order to protect incumbent politicians?

    3. Second Amendment — huh? The Court upheld the plain wording of the Constitution, rejecting any prior jurisprudence which had distorted and changed that language to suit current political preferences. Strict constitutionalists adhere to the Constitution, even if it means overturning prior jurisprudence that failed to meet that standard. You may disagree with the holding, but you can hardly argue that it was not in keeping with constitutionalism, especially since you are by no means an adherent to that philosophy.

  • SKPeterson

    reg @ 4 – I think the role of previous jurisprudence is precisely the difference between an institutional or constitutional conservatism. What good is the language of a constitution if it can be overridden by an institutional practice of deference to previous decisions? It simply means that mistakes, errors, biases and rulings contrary to the express intent of a constitution serve to supplant and undermine the very document the court is supposed to uphold. An institutionalist will look at the language of the constitution, but they also will take the previous decisions of the court, previous laws and the rulings of the common law and set them on par or even above the clear intent of the constitution.

  • SKPeterson

    reg @ 4 – I think the role of previous jurisprudence is precisely the difference between an institutional or constitutional conservatism. What good is the language of a constitution if it can be overridden by an institutional practice of deference to previous decisions? It simply means that mistakes, errors, biases and rulings contrary to the express intent of a constitution serve to supplant and undermine the very document the court is supposed to uphold. An institutionalist will look at the language of the constitution, but they also will take the previous decisions of the court, previous laws and the rulings of the common law and set them on par or even above the clear intent of the constitution.

  • Joe

    Well — we also need to clear something up. There was no pre-Heller US Supreme Court jurisprudence holding that the Second Amendment is not an individual right. What Miller (the case proponents of the collective right theory claim supports their view) actually held is that the weapon at issue needed to be the type of weapon that would be used in the event the Malitia was called up. The Second Amendment protected the ownership of Military weapons but not other weapons. The Miller court held that a sawed off shotgun was not a military weapon (because there was no history of the US military using them) and held that Mr. Miller’s conviction would stand. Under this reasoning, I could own a fully automatic, truck mounted 50 cal. machine gun because it has a military purpose. Under Miller’s reasoning, the assault weapons ban enacted under Bill Clinton was clearly unconstitutional.

  • Joe

    Well — we also need to clear something up. There was no pre-Heller US Supreme Court jurisprudence holding that the Second Amendment is not an individual right. What Miller (the case proponents of the collective right theory claim supports their view) actually held is that the weapon at issue needed to be the type of weapon that would be used in the event the Malitia was called up. The Second Amendment protected the ownership of Military weapons but not other weapons. The Miller court held that a sawed off shotgun was not a military weapon (because there was no history of the US military using them) and held that Mr. Miller’s conviction would stand. Under this reasoning, I could own a fully automatic, truck mounted 50 cal. machine gun because it has a military purpose. Under Miller’s reasoning, the assault weapons ban enacted under Bill Clinton was clearly unconstitutional.

  • DonS

    Yes, that’s right, Joe @ 7. True collective rights proponents would strike down assault weapons bans as being clearly unconstitutional ;-)

    I’m sure Reg is on board with that reasoning.

  • DonS

    Yes, that’s right, Joe @ 7. True collective rights proponents would strike down assault weapons bans as being clearly unconstitutional ;-)

    I’m sure Reg is on board with that reasoning.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    @4

    corporations are people? really!?!

    Nah, just “persons”:

    Since at least Dartmouth College v. Woodward (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts.

    http://en.wikipedia.org/wiki/Corporate_personhood

    However, some people are not persons:

    a fetus is not “a person within the meaning of the Fourteenth Amendment”.

    http://en.wikipedia.org/wiki/Roe_v._Wade

    Of course, neither of these definitions of persons was ever put to a legislative vote or referendum. Would a democratic vote render the same judgement?

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    @4

    corporations are people? really!?!

    Nah, just “persons”:

    Since at least Dartmouth College v. Woodward (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts.

    http://en.wikipedia.org/wiki/Corporate_personhood

    However, some people are not persons:

    a fetus is not “a person within the meaning of the Fourteenth Amendment”.

    http://en.wikipedia.org/wiki/Roe_v._Wade

    Of course, neither of these definitions of persons was ever put to a legislative vote or referendum. Would a democratic vote render the same judgement?

  • DonS

    sg @ 9: As to the question of whether a fetus is a person, the people would clearly vote to the affirmative, as shown by all recent polling. Stranger still is that a fetus IS legally a person when it comes to the commission of a violent crime against a pregnant mother — if her death results in the death of the fetus she is carrying, the killer will be charged with two murders.

    As to the issue of whether a corporation, which is merely a voluntary association of real people organized as an entity for worshiping as a church, engaging in free speech, or conducting business as is practically required under the law, why should they not have the rights of the individuals of which they are comprised? If corporations can be denied the protections of our Constitutional Bill of Rights, then this is a very real and practical limitation on the protections of the Bill of Rights for each one of us as individuals, because it limits our liberty to worship, speak freely, and to conduct business. Do we truly have liberty if we are denied our rights when we associate with others, using the legal means established by law for that purpose?

    It’s a no-brainer if you think about it for a moment.

  • DonS

    sg @ 9: As to the question of whether a fetus is a person, the people would clearly vote to the affirmative, as shown by all recent polling. Stranger still is that a fetus IS legally a person when it comes to the commission of a violent crime against a pregnant mother — if her death results in the death of the fetus she is carrying, the killer will be charged with two murders.

    As to the issue of whether a corporation, which is merely a voluntary association of real people organized as an entity for worshiping as a church, engaging in free speech, or conducting business as is practically required under the law, why should they not have the rights of the individuals of which they are comprised? If corporations can be denied the protections of our Constitutional Bill of Rights, then this is a very real and practical limitation on the protections of the Bill of Rights for each one of us as individuals, because it limits our liberty to worship, speak freely, and to conduct business. Do we truly have liberty if we are denied our rights when we associate with others, using the legal means established by law for that purpose?

    It’s a no-brainer if you think about it for a moment.

  • reg

    Don S,
    Pray tell what law school you attended?

  • reg

    Don S,
    Pray tell what law school you attended?

  • DonS

    George Washington University, Reg. How about you?

  • DonS

    George Washington University, Reg. How about you?

  • SKPeterson

    I concur with DonS, even though I only play a lawyer on tv. It is precisely the fact that corporations are made up of owners who are individuals with constitutional rights, that provides the basis for the recognition of corporations as collective “persons.” From an economic standpoint, the issue with corporations is the degree of divorce between the individual owners (shareholders) and corporate management. The issue of aligning manager and owner interests is a long-standing area of research in business, finance and economic academia. It is why there are stock incentives, options and other vehicles designed to incentivize corporate management to better consider the interests of the owners. Moreover, shareholders can influence the actions of management by voting at annual meetings, or even by purchasing more shares. In fact some corporate persons are influenced heavily by other non-corporate persons such as unions and their pension funds (think CalPERS, for example).

    So, despite the economic chaos that would ensue from the elimination of corporate personhood, such elimination would also eviscerate those other non-individual persons called unions. Be careful what you ask for.

  • SKPeterson

    I concur with DonS, even though I only play a lawyer on tv. It is precisely the fact that corporations are made up of owners who are individuals with constitutional rights, that provides the basis for the recognition of corporations as collective “persons.” From an economic standpoint, the issue with corporations is the degree of divorce between the individual owners (shareholders) and corporate management. The issue of aligning manager and owner interests is a long-standing area of research in business, finance and economic academia. It is why there are stock incentives, options and other vehicles designed to incentivize corporate management to better consider the interests of the owners. Moreover, shareholders can influence the actions of management by voting at annual meetings, or even by purchasing more shares. In fact some corporate persons are influenced heavily by other non-corporate persons such as unions and their pension funds (think CalPERS, for example).

    So, despite the economic chaos that would ensue from the elimination of corporate personhood, such elimination would also eviscerate those other non-individual persons called unions. Be careful what you ask for.

  • reg

    Boston University Law School.
    Do all you “constitutionalist” really believe that the founding fathers intended the first amendment to apply to corporations when it was passed? Cases involving the right to make contracts have no bearing on the free speech issue. Different provisions being interpreted.

    Article I Section 4 of the Constitution gives primary responsibility regarding the means and manner of the election of Reps and Sens tot he States, then the House, but not the US Sup. Ct. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

    The Second Amendment had always been interpreted to relate to militas. That was what the plain meaning of the clause was thought to mean until it was radically reread/written by the activist political jurists on the Court.

  • reg

    Boston University Law School.
    Do all you “constitutionalist” really believe that the founding fathers intended the first amendment to apply to corporations when it was passed? Cases involving the right to make contracts have no bearing on the free speech issue. Different provisions being interpreted.

    Article I Section 4 of the Constitution gives primary responsibility regarding the means and manner of the election of Reps and Sens tot he States, then the House, but not the US Sup. Ct. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

    The Second Amendment had always been interpreted to relate to militas. That was what the plain meaning of the clause was thought to mean until it was radically reread/written by the activist political jurists on the Court.

  • DonS

    Reg @ 14: Most churches are non-profit corporations. Because the congregation chose to incorporate, in order be able to conduct business in a complicated society under the rules society has established, should that congregation be stripped of its First Amendment rights to free exercise?

    In the First United case, a group of people had associated into a non-profit corporation in order to pool their funds to produce and distribute a movie about a political candidate, Hilary Clinton. a) Would you agree that such a movie falls squarely into the parameters of political speech, intended to be protected under the First Amendment? b) Do you understand that some kind of association of multiple people was required, because no one individual had the means to commit to undertake a project of that magnitude? c) Do you understand that the tax laws of the U.S. make pooling funds without the use of an entity like a non-profit corporation prohibitive because they would require the individual collecting and managing the pooled funds to report those funds as income on their personal tax return? d) Since for some reason you are adamantly opposed to corporations being available to people desiring to exercise their free speech rights, what is your proposed alternative? Or do you think that free speech rights are limited to individual exercise, i.e. shouting on a street corner? What would be your basis for such a severe limitation? Since such a policy would necessarily entrench incumbent politicians in place, and ensure that only the wealthy would be able to use media to reach the voting population, why would that be better than recognizing that corporations are merely voluntary associations of individuals, formed to operate in the complex legal world our society has created, and entitled to the same rights and privileges as those individuals for whom they act?

    As for the Second Amendment, SKP and I have already fully addressed your argument above. We simply disagree, but you still haven’t explained why an originalist should be bound by bad precedent, especially lower court precedent.

    Regarding federal elections, your position appears to be that Marbury v. Madison somehow doesn’t apply. That is truly a novel position that none of the nine justices took. All of the justices believed that the Supreme Court had jurisdiction over the matter, and seven of them agreed that there had been an equal protection violation based on different ballot evaluation criteria in different counties. So, you are going to have to do a much better job of explaining why all nine justices were wrong and you alone are right. Also, you didn’t answer my question about the federal Voting Rights Act. If the Supreme Court doesn’t even have Constitutional authority to interfere with state election operations, it’s really hard to see how the Justice Department does.

  • DonS

    Reg @ 14: Most churches are non-profit corporations. Because the congregation chose to incorporate, in order be able to conduct business in a complicated society under the rules society has established, should that congregation be stripped of its First Amendment rights to free exercise?

    In the First United case, a group of people had associated into a non-profit corporation in order to pool their funds to produce and distribute a movie about a political candidate, Hilary Clinton. a) Would you agree that such a movie falls squarely into the parameters of political speech, intended to be protected under the First Amendment? b) Do you understand that some kind of association of multiple people was required, because no one individual had the means to commit to undertake a project of that magnitude? c) Do you understand that the tax laws of the U.S. make pooling funds without the use of an entity like a non-profit corporation prohibitive because they would require the individual collecting and managing the pooled funds to report those funds as income on their personal tax return? d) Since for some reason you are adamantly opposed to corporations being available to people desiring to exercise their free speech rights, what is your proposed alternative? Or do you think that free speech rights are limited to individual exercise, i.e. shouting on a street corner? What would be your basis for such a severe limitation? Since such a policy would necessarily entrench incumbent politicians in place, and ensure that only the wealthy would be able to use media to reach the voting population, why would that be better than recognizing that corporations are merely voluntary associations of individuals, formed to operate in the complex legal world our society has created, and entitled to the same rights and privileges as those individuals for whom they act?

    As for the Second Amendment, SKP and I have already fully addressed your argument above. We simply disagree, but you still haven’t explained why an originalist should be bound by bad precedent, especially lower court precedent.

    Regarding federal elections, your position appears to be that Marbury v. Madison somehow doesn’t apply. That is truly a novel position that none of the nine justices took. All of the justices believed that the Supreme Court had jurisdiction over the matter, and seven of them agreed that there had been an equal protection violation based on different ballot evaluation criteria in different counties. So, you are going to have to do a much better job of explaining why all nine justices were wrong and you alone are right. Also, you didn’t answer my question about the federal Voting Rights Act. If the Supreme Court doesn’t even have Constitutional authority to interfere with state election operations, it’s really hard to see how the Justice Department does.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    DonS, I wasn’t arguing against corporations (groups of people) having rights as people. I was contrasting it with the absurdity of real individual human beings not being considered people. The supremacist power granted to mothers of the life and death of their unborn children is debased and depraved.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    DonS, I wasn’t arguing against corporations (groups of people) having rights as people. I was contrasting it with the absurdity of real individual human beings not being considered people. The supremacist power granted to mothers of the life and death of their unborn children is debased and depraved.

  • DonS

    Got it, sg. Thanks!

  • DonS

    Got it, sg. Thanks!

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  • http://carolmsblog.blogspot.com/ C-Christian Soldier

    CONSTITUTION -original intent- that is what the Supreme Court SHOULD be following!
    many of its rulings have NOT adhered to the original intent of the CONSTITUTION!
    KELO vs. New London comes to mind-eminent domain-
    as do many other UN-Constituional decisions that have been made!
    It is the branch given the least power-but has ‘ascended’ to the branch with the most power!
    C-CS

  • http://carolmsblog.blogspot.com/ C-Christian Soldier

    CONSTITUTION -original intent- that is what the Supreme Court SHOULD be following!
    many of its rulings have NOT adhered to the original intent of the CONSTITUTION!
    KELO vs. New London comes to mind-eminent domain-
    as do many other UN-Constituional decisions that have been made!
    It is the branch given the least power-but has ‘ascended’ to the branch with the most power!
    C-CS


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