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Conservative Legal Academics and the Constitutionality of McCain-Feingold:
I find myself quite puzzled by Brad Smith's suggestion that conservative law professors are not likely to support John McCain because belief in the constitutionality of McCain Feingold is somehow inconsistent with "general respectfulness" for the Constitution. Maybe I'm missing something, but I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say -- can't remember who -- was that judges should be "strict constructionists" who don't "legislate from the bench."

  Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy. Of course, conservative legal thought comes in many diverse strands, so of course it's not the only result a conservative judge could reach. But if you believe that legal principles should be applied consistently, without regard to which party's ox is being gored, I would think this would be a strong and principled conservative approach.
hlc:
Although I think you correctly state a version of a conservative jurist, I disagree that a strict constructionist's striking down of BCRA would be inconsistent. If a judge believes that the legislation runs afoul of the First Amendment, he or she would be duty-bound to so opine (regardless of whether he or she believed in the legislation as a policy matter.)

The typical (or one typical) criticism of an activist judge (or a judge who legislates from the bench) is that the judge alters his constitutional analysis in order to justify a preferred policy result. A conservative judge striking down an unconstitutional statute is not an abdication of the judge's proper role, but faithful execution of it. If McCain-appointed Judge X merely struck down McCain-Feingold because she thought it was bad policy, then I think you're correct that it would not be strict constructionism.

As a side note, judicial restraint is not only championed as a conservative virtue. Justice Breyer has noted that he (and the liberal bloc) consistently vote to uphold more statutes against constitutional challenges than the other justices. That doesn't necessarily mean that he is more faithfully interpreting the constitution than Justice Scalia, for example. He just has a different vision of what the constitution says.
1.23.2008 10:26pm
OrinKerr:
HLC,

Implicit in your comment is a vision of what a conservative jurist does when he interprets the constitution. Can you be explicit about what that vision is?
1.23.2008 10:32pm
MarkField (mail):

A conservative judge striking down an unconstitutional statute is not an abdication of the judge's proper role, but faithful execution of it.


But when a liberal judge strikes down a statute, s/he is merely using the judiciary to achieve a preferred policy result?

This should be fun.
1.23.2008 10:38pm
Nessuno:
Striking down a law has nothing to do with "legislating from the bench". "Legislating" means creating law, whole cloth, not merely striking laws down. The rather simplistic view of conservative philosophy that you espouse arises, perhaps, from conservative critiques of the Warren era when the two often went hand in had. Then striking down laws usually came after the court reached into a penumbra and divined a new, nearly absolute right. But we are called, now, to be a little more sophisticated in our analysis.

And I think, Mr. Kerr, you are falling into a rhetorical trap created by the left when describing "conservative" judicial philosophy. They set up this notion that the conservative position is that judges should do nothing, and then hit conservatives over the head with that straw man when conservatives advocate overturning vast expansions of the commerce clause, the role of the federal government, etc.

For the issue at hand, I think it's fair to say that finding a right to political speech unencumbered by government restraint would not be some sort of new judicial right. It therefore would not be legislating to overturn a restriction based on that right.

On the other hand, those justices who uphold McCain Feingold do so out of a belief that the textual negative right of the people against government intrusion can be outweighed from the far less textual positive right to a fair democratic process and election. This is not a conservative judicial analysis.
1.23.2008 10:39pm
NickM (mail) (www):
Considering the long lists of interest groups that challenged BCRA in court, can you really classify opposition to it as conservative?

Nick
1.23.2008 10:41pm
arbitraryaardvark (mail) (www):
One part of strict construction involves deciding whether the disputed parts of McCain-Feingold are within the speech or press or petition clauses. Stuff like TV ads, donating money to candidates, having to file reports about TV ads.
But another part of strict construction has to do with, if one has determined that some of these things are within speech or press or petition, what "Congress shall make no law..." means.
From my perspective, McCain tries to rule but not govern; he doesn't consider himself bound by that promise he made to "make no law" infringing speech and petition, and so he's like the Clintons, unable to understand what it means to bind oneself with an oath and keep that set of promises.
1.23.2008 10:50pm
Kazinski:
I think there is an amendment somewhere that says "Congress shall make no law ... abridging the freedom of speech...". To say that it is judicial restraint to let Congress make that law is ridiculous.
1.23.2008 10:51pm
OrinKerr:
Kazinski,

Your skills at question-begging remain unsurpassed.
1.23.2008 10:55pm
David Hecht (mail):
"...a truly consistent conservative judge [would] be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint..."

Sooo...stare decisis should trump fundamental constitutionality? Is this what "conservatives" are supposed to think?

That's the reasoning that brought us Webster and its whole line of cases--"Hey, we said! And if we unsay now, people will make fun of us!"

No wonder we can't catch a break on judges.
1.23.2008 10:55pm
Brett Bellmore:
A true strict constructionist faced with McCain/Feingold wouldn't even reach the 1st amendment question, the law would founder on Congress' lack of any enumerated power to regulate the conduct in question.
1.23.2008 10:56pm
hlc:
George Will, for example, on 4/16/06 in the Post, noted that BRCA involved "traducing the constitution." Also, the dissent in McConnell v. FEC articulates a constitutional critique of the legislation.

I concede that my statement implies a conservative vision of the constitution, but I think that vision exists--namely, that the first amendment forbids BCRA. (I am not, for the record, a conservative, so I hope I am not misstating their case.) Indeed, Justice Thomas and Justice Scalia, the models of the strict constructionist so voted in McConnell.

I think your rebuttal articulates a general problem with accusing one of being a "judicial activist" because it assumes a correct vision of the constitution that is not being adhered to. My point was only that, assuming Judge X believes BCRA is unconstitutional, it would not be an abandonment of conservative jurisprudence to strike it down. In fact, if he didn't strike it down, he would not be faithfully interpreting the constitution. Again, I totally agree that if a judge struck down the statute as a matter of policy that would be legislating from the bench.
1.23.2008 10:57pm
arbitraryaardvark (mail) (www):
McCain-Feingold aka BCRA passed in 2002 outlawed political contributions by 18-and-unders, until that was struck down as unconstitutional in McConnell. That cadre is now 24-and-under, and is rather overwhelmingly supporting Obama and Ron Paul, not McCain.
1.23.2008 10:59pm
Rich B. (mail):
It is amusing how the same people who writes whole treatises on whether "a well regulated militia" implies an individual right or a collective right to bear arms under the original public understanding of the Constitution will assume, without a second thought, that "freedom of speech" obviously means the right to send a check for $10,000 to a political candidate.
1.23.2008 11:01pm
Gilbert (mail):
I don't want conservative judges, I don't want liberal judges, I don't want "strict" construction, I don't want loose construction. It should be enough that they are smart.

Cut the rhetoric and make your argument without presupposing HOW words mean.

You can have an expansive understanding of "speech" or you can have an absolutist understanding of "no law." You can even have them together but then you are talking revolution. I think at this point it shirks a judge's duty to disclaim any right to engage in normative inquiry.
1.23.2008 11:01pm
Oren:
From my perspective, McCain tries to rule but not govern; he doesn't consider himself bound by that promise he made to "make no law" infringing speech and petition, and so he's like the Clintons, unable to understand what it means to bind oneself with an oath and keep that set of promises.
I'm no huge fan of McCain but isn't at least theoretically possible that you have differing views about what constitutes political speech? Are his views so alien that you can't fathom that any human being could actually believe them?

At any rate, you aren't going to get any traction on a man of his stature by accusing him of violating his oath to his country.
1.23.2008 11:06pm
Oren:
My point was only that, assuming Judge X believes BCRA is unconstitutional, it would not be an abandonment of conservative jurisprudence to strike it down. In fact, if he didn't strike it down, he would not be faithfully interpreting the constitution.
And if Justice Kennedy really believes that the Constitution prohibits the sort of law overruled Lawrence v. Texas (or whatever) is it similarly an act of deep conservative jurisprudence?
1.23.2008 11:11pm
DavidBernstein (mail):
ssume, without a second thought, that "freedom of speech" obviously means the right to send a check for $10,000 to a political candidate.
How is sending a check for $10K to a candidate in principle different from spending 10K on a printing press, or computer toner and paper, to express one's support for the candidate?
1.23.2008 11:32pm
Kazinski:
Orin,
Thanks for your kind words, its nice to be recognized for ones talents.

I didn't address your specific points, because they didn't make any sense. You say a judge applying Thayeresqe judicial restraint would uphold McCain-Feingold "regardless of the merits of such legislation as a matter of policy". What has policy have to do with it? BCRA clearly violates the constitutional prohibition on regulating speech.

You go on to say:

But if you believe that legal principles should be applied consistently, without regard to which party's ox is being gored...

I have no idea whether it hits the right more than the left, it seems like it is neutral in that it is more a incumbent protection act than an idealogical measure, 2006 it might have helped the GOP, 2008 it might help the Democrats. I was against it both election cycles, so that point seems nonsensical to me too.

Would you be advocating "old fashioned Thayeresque principles of judicial restraint" if Congress authorized no-knock warrantless raids against drug dealers because you didn't think Judges should be making policy decisions? We know the answer to that, you wouldn't even think about whether it was good or bad policy because it is plainly unconstitutional.
1.23.2008 11:35pm
arbitraryaardvark (mail) (www):
but isn't at least theoretically possible that you have differing views about what constitutes political speech? Are his views so alien that you can't fathom that any human being could actually believe them?
Yes, that's possible. I've never heard him coherently expound any such theory, but then I haven't made a close study of the guy.
At any rate, you aren't going to get any traction on a man of his stature by accusing him of violating his oath to his country. I used the expression "from my perspective". I don't expect my views to be widely shared, although I'm reminded that Ron Paul was one of the guys who took McC-F to court. For me, McCain's position on campaign censorship is a deal killer, even before he treated Brad Smith the way he did. Similarly I view Huckaby's rejection of science as a deal killer. Both guys have some charm and compelling personal stories.
If I thought McCain was doing his best to uphold his oath, just seeing things differently than I do, I'd have a very different opinion of him.
1.23.2008 11:42pm
DavidBernstein (mail):
Orin,

Brad didn't quite say that thinking that M-F is constitutional is inconsistent with being respectful to the constitution. Rather, he said that it's hard to find potential judicial nominees who would both believe that M-F is constitutional and be otherwise respectful to the Constitution, and he gives Thomas and Scalia as examples of judges who are the latter but don't believe the former. If there are some potential nominees out there whom "limited government" types (Brad's category) could support who also are fine with M-F, they don't immediately spring to mind.
1.23.2008 11:43pm
OrinKerr:
Kazinski,

I think you're missing the point. The question that divided the Supreme Court in the BCRA case, over the course of hundreds of pages, was whether BCRA violates the First Amendment. Your approach is to assume the conclusion than it does; You seem to think it is so clear that it doesn't require argument. But if one uses traditional tools of constitutional interpretation, such as history, text, and precedent, I think the answer is not so clear. I realize that you find one side much more persuasive, but that doesn't necessarily mean it is the only plausible result. Or so it seems to me -- perhaps I am not the expert in this area that you are.
1.23.2008 11:43pm
Oren:
Kazinski - despite your judgment that BCRA is "clearly", you will be disappointed to know that the matter is still the subject of vigorous debate. Just because you are right, doesn't make it obvious that every other position is wrong.
1.23.2008 11:44pm
Oren:
^^ I lost the word "unconstitutional" in there after "clearly"
1.23.2008 11:45pm
Jagermeister:
Maybe I'm being naive, but my expectation for a "conservative jurist" is that they would look to the discussion surrounding the founding documents for a clue to the intent of the constitution. Given the clear emphasis on protecting political speech at the time of the constitutional debates, and the negative reception of the Alien and Sedition Acts at the time of their passage, one would have thought modern jurists would recognize that restrictions on political speech would be distinctly unwelcome.

Also, given that the entire justification for allowing CFR was to avoid the perception of corruption in government, it is hard to believe that they didn't recognize the even stronger perception (and perhaps reality?) that CFR is designed to shut up detractors of incumbents. Not only was upholding CFR a misreading of the Constitution, it was an act of extreme hypocrisy, IMHO.
1.23.2008 11:49pm
Kazinski:
Orin,
I see your point now, and of course the reason it escaped me, and probably everyone else is because no one knows ahat the hell "Thayeresque" is.

But a little research leads me to this description of neo-Thayerism:

courts should not lay down a constitutional rule, or perhaps even a broad interpretation of federal statute, unless things would be even worse from a pluralist point of view without the decision, or the decision is otherwise right "beyond a reasonable doubt".


So if I am reading that right a Thayeresque approach to judicial restraint would not invoke the constitution to strike down laws, but leave it up to the political process to enforce constitutional boundaries on legislation.

If you are a Thayerite, you wouldn't strike down a law allowing warrantless searches of suspected drug dealers on 4th amendment grounds. I'm guessing you are not a Thayerite.
1.23.2008 11:52pm
Jagermeister:
I missed including it above, but even monetary limits aside, exactly how is the 60 day blackout on political ads NOT a restriction on political speech?
1.23.2008 11:52pm
Oren:
negative reception of the Alien and Sedition Acts at the time of their passage
All but two state legislatures passed resolutions supported A&S and condemning Virgina (and by extension Jefferson) for opposing it. Of course, in response, Jefferson and Madison came up with a suicidal Compact Theory that had, shall we say, mixed results.
1.24.2008 12:05am
Kazinski:
Orin,
When it comes to interpreting the constitution, I am a computer programmer not a law professor, so we inhabit different universes. In the universe I inhabit a first amendment that protects nude dancing as a act of expression also protects any and all political advertising regardless of who pays for it. There is no question on the matter. Now maybe that is because I spend my working hours coding IF..THEN...ELSE statements, that always spit out the same output when the input is the same, it may well be that Quantum logic is more applicable to the law than computer logic.
1.24.2008 12:06am
Jagermeister:
That's the problem with being the product of a public school education. Too much misinformation. I assumed things like this:

Many Americans questioned the constitutionality of these laws. Indeed, public opposition to the Alien and Sedition Acts was so great that they were in part responsible for the election of Thomas Jefferson, a Republican, to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest.

, that the Alien Acts were never enforced (although the Sedition Acts were), and that the majority of the acts were allowed to expire in 1802, meant that they were unpopular. I guess I don't just have the right perspective on history to realize that they would be seen as a great success by today's judiciary, and a example for emulation. Perhaps a law school education would have straightened me out. Thanks for the corrections.
1.24.2008 12:13am
OrinKerr:
Fair enough, Kazinski! Thanks for the very funny response.
1.24.2008 12:20am
MarkField (mail):

Maybe I'm being naive, but my expectation for a "conservative jurist" is that they would look to the discussion surrounding the founding documents for a clue to the intent of the constitution.


I think a good many conservatives over the years would object to being tied to originalism as the sole source of Constitutional interpretation. Textualists, for example, don't necessarily look to that source (at least not in the first instance). And stare decisis is conservative in its own way. Finally, some conservatives during the late 19th C thought that adherence to fundamental rights was the proper way to interpret the Constitution. IOW, there are lots of ways to be "conservative".


Given the clear emphasis on protecting political speech at the time of the constitutional debates


You can find plenty of quotes on all sides of this issue. Here, for example, is James Wilson in the PA ratifying convention: "What is meant by the liberty of the press is that there should be no [prior] restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual."

Some went even further. Sam Adams took the position that private parties had no right to engage in politics at all:

"[A]s we now have constitutional and regular Governments and all our Men in Authority depend upon the annual and free Elections of the People, we are safe without [self-created societies]. To say the least, they are become useless. Bodies of Men, under any Denomination whatever, who convene themselves for the Purpose of deliberating upon and adopting Measures which are cognizable by Legislatures only will, if continued, bring Legislatures to Contempt and Dissolution. If the public Affairs are [poorly] conducted, if dishonest or incapable Men have crept unawares into Government, it is happy for us that under our American Constitutions the Remedy is at hand, and in the Power of the great Body of the People. Due Circumspection and Wisdom at the next Elections will set all right, without the Aid of any self Created Conventions or Societies of Men whatever."
1.24.2008 12:24am
wekt:
Orin,

Do you really doubt that McCain-Feingold is unconstitutional? If the gov't can restrict you from paying/donating to an organization that diseminates your preferred political viewpoint, then can't they also restrict you from buying paper/ink to print your own pamphlets? If not, why?
1.24.2008 12:30am
MarkField (mail):

the Alien Acts were never enforced


It's actually still in effect today (50 USC Sec. 21-24) and has been enforced numerous times in our history.

The quote you gave is fairly simplistic in its analysis of the election of 1800. There's no doubt that the Republican party objected to the Sedition Act, but the Federalists didn't. The key to the federal election was the NY state contest, which Burr won for Jefferson. That shifted NY's delegates to Jefferson, providing the margin of victory. In addition, of course, the extra delegates given the South by the 3/5ths clause played an important role.
1.24.2008 12:31am
Clayton E. Cramer (mail) (www):
If the Constitution clearly prohibits a particular law, then a judge is obligated to strike it down. If there is uncertainty about whether a law is contrary to the Constitution, a judge should defer to the legislative body. The primary source of authority in our government is the people, or their elected representatives.

The problem comes when you have to figure out whether the Constitution clearly prohibits a law. The First Amendment's protections of freedom of speech and freedom of he press were not intended to protect libel, slander, speech or writing that conformed the treason standard, or obscenity. The most that you can say is that the First Amendment generally prohibited prior restraint. You could be punished for abuse of that right (a formulation that appears in a number of state constitutions of the period), but not prevented from speaking or printing your beliefs.

Now, what constitutes obscenity? That's a somewhat more difficult question. That political speech was to be protected by the First Amendment is so obvious that I'm not going to waste my time arguing that position. (At least, not until J.F. Thomas steps up and argues that covering your naked body with chocolate sauce on stage is protected--but not political advertising).
1.24.2008 1:25am
Elliot Reed (mail):
I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say -- can't remember who -- was that judges should be "strict constructionists" who don't "legislate from the bench."
As I think the comments here have made clear, this talk about "judicial restraint" and "legislating from the bench" is little more than a set of rhetorical slogans. The trick is to talk about "judicial restraint" but define it to mean "following the correct interpretation of the constitution according to [the speaker's favored version of] conservative judicial philosophy, no matter how much that interpretation differs from what you'd get using conventional means of interpretation." This is why "judicial restraint" is just as useless an analytical category as "judicial activism" is—they just denote whether or not the speaker agrees with the decision. Decisions the speaker likes are "restrained"; those she doesn't are "activist".
1.24.2008 1:51am
arbitraryaardvark (mail) (www):
Clayton writes: If there is uncertainty about whether a law is contrary to the Constitution, a judge should defer to the legislative body. That was the approach the Chief Justice took in denying a preliminary injunction in McConnell, but I think it is contrary to the court's precedents, which say that in the election context, where there is a constant danger of self-dealing and incumbent protection devices, the court should apply exacting scrutiny and give no deference.
Normatively, I tend to oppose such deference more generally. Separation of powers and checks and balances suggest that no branch is superior to the others. If the legislature were making a good faith effort to only pass statutes which were constitutional, and the executive faithfully used the veto power to deter passage of anything unconstitutional, then perhaps deference would be appropriate. But today both those branches defer constitutional concerns to the courts, so when the court in turn gives deference to what might be unconstitutional, we've lost the checks and balances and no-one speaks for the constitution.
Clayton, you know legal history better than I do. Two questions. Just as the right to free speech had historical exceptions like libel and treason, the right to bear arms might also have had historical exceptions. Did it, what were they, and does this affect the DC case?
Second, the state constitutional "abuse" clauses re freedom of speech and press: what is the proper construction of the abuse clauses; what were they supposed to mean? Thanks.
1.24.2008 2:34am
BGates:
MarkField, for all I know Sam Adams had the position you ascribe to him, but that quote doesn't show it. Or, at least, I'm not able to apply any theory of textual interpretation that can make the quote you gave be equivalent to "private parties had no right to engage in politics at all."
1.24.2008 2:53am
Clayton E. Cramer (mail) (www):

Clayton writes: If there is uncertainty about whether a law is contrary to the Constitution, a judge should defer to the legislative body. That was the approach the Chief Justice took in denying a preliminary injunction in McConnell, but I think it is contrary to the court's precedents, which say that in the election context, where there is a constant danger of self-dealing and incumbent protection devices, the court should apply exacting scrutiny and give no deference.
I agree that the Court did not follow its own precedents--cases involving speech that was far more arguably intended to be protected by the First Amendment than political speech. The big problem here is that the various standards of review used by the Court are not consistently applied.

The absolutist view (of which Justice Hugo Black claimed to be a follower) would say that if speech of a type envisioned by the Framers was restrained, than there is no balancing act, no question of "overbroad" or "narrowly tailored" -- the law is bad, and goes away. M-F (which is an apt abbreviation for this law) would have gone away.

Strict scrutiny was created as a theory to privilege rights that liberals thought were so important that they should be very, very difficult to violate--but without the necessity for judges to be consistent, as following an absolutist model would.

And in practice, strict scrutiny case law is a mish-mosh. Speech seems to be pretty consistently followed as strict scrutiny, which is at least explicitly in the Constitution. But in Moore v. East Cleveland (1977), the right of extended family to live in a house (which is, at best, implied) is also given the strict scrutiny protection. And there are cases where strict scrutiny has been applied to the right to collect welfare without meeting a one year residency requirement under the claim that this is about the right to interstate travel. What?

Just as the right to free speech had historical exceptions like libel and treason, the right to bear arms might also have had historical exceptions. Did it, what were they, and does this affect the DC case?
Without question. Based on the historical evidence, slaves don't have the right to keep and bear arms. (Amendment 13 fixed that, anyway.)

Individuals could be disarmed as punishment for particular crimes--although most of the disarming crimes back then were capital. Prohibiting felons from owning firearms is far less severe than preventing felons from living, so felon in possession laws would seem justifiable based on original intent.

Those who were disloyal to the government could be, and were disarmed during the Revolution. The closest modern equivalent is the Lee Harvey Oswald Memorial Provision that bans those who have renounced U.S. citizenship from owning a gun. You could make the argument that non-citizens can be disarmed under the same principle.

Categories of arms were subject to no restrictions back then. Even handguns weren't treated special, compared to other weapons.


Second, the state constitutional "abuse" clauses re freedom of speech and press: what is the proper construction of the abuse clauses; what were they supposed to mean? Thanks.
I'm familiar with the text of the Penn. Const. provision, but I am not sufficiently expert to discuss meaningfully what they intended that to mean. I would look to see what James Wilson, U.S. Supreme Court Associate Justice, and primary author of the 1790 Penn. Const., understood it to mean, at least as s start.
1.24.2008 10:01am
Clayton E. Cramer (mail) (www):

As I think the comments here have made clear, this talk about "judicial restraint" and "legislating from the bench" is little more than a set of rhetorical slogans.
I think you would recognize the dangers of judicial activism if judges were finding a right to live in a homosexual-free society, and prohibiting legislatures from repealing sodomy laws.
1.24.2008 10:03am
Aultimer:

DB: How is sending a check for $10K to a candidate in principle different from spending 10K on a printing press, or computer toner and paper, to express one's support for the candidate?

In the same way that it's different from spending 10K on machine guns (or "art" consisting of naked people) to express support of a candidate. The protection for "speech" itself is clear and certain, everything else is subject to the same machinations of interpretation as the 2A.
1.24.2008 10:41am
Gilbert (mail):
@Clayton E. Cramer That's absolutely absurd. Both of your examples are liberty constraining, that is not what the courts do. Those are not "rights."
1.24.2008 11:34am
Mark Field (mail):

MarkField, for all I know Sam Adams had the position you ascribe to him, but that quote doesn't show it. Or, at least, I'm not able to apply any theory of textual interpretation that can make the quote you gave be equivalent to "private parties had no right to engage in politics at all."


I think the quote itself is pretty clear that Adams thought that politics was limited to elections and that, outside of elections, was the proper subject for elected officials rather than private citizens.

It may help to give some context about "self-created societies". In the early 1790s, a number of "Democratic clubs" sprang up around the country. They were associations in which ordinary citizens could discuss politics and (mostly) oppose the Federalist administration.

Federalists considered these clubs illegitimate. For example, Fisher Ames, the most prominent Federalist Member of the House, said "Will clubs [serve] as a substitute for representation? A few hundred persons only are members of clubs, and if they should act for the others, it would be an usurpation [of the role of Representatives]." In essence, Ames was saying that the clubs subverted republican government because they represented only a minority rather than the whole nation (as Congress did). That was the same position Sam Adams was arguing.
1.24.2008 11:37am
Xanthippas (mail) (www):
I don't see why conservatives would get so hung up on McCain-Feingold anyway. They still have the atrocious Buckley v. Valeo, which no Supreme Court justice, liberal or conservative, is likely to overturn.
1.24.2008 11:55am
Dilan Esper (mail) (www):
I don't see why conservatives would get so hung up on McCain-Feingold anyway. They still have the atrocious Buckley v. Valeo, which no Supreme Court justice, liberal or conservative, is likely to overturn.

Buckley may be one of the most underrated Supreme Court opinions of all time. Not that it is necessarily right (I don't personally completely buy it and would favor a more speech-protective rule), but that the distinction that it draws between contributions and expenditures is actually a very decent stab at hitting the fundamental difference between different types of campaign finance restrictions and their likelihood to suppress the expression of ideas. And yet everyone seems to hate it.
1.24.2008 6:34pm
Rich Rostrom (mail):
Aultimer: In the same way that it's different from spending 10K on machine guns (or "art" consisting of naked people) to express support of a candidate. The protection for "speech" itself is clear and certain, everything else is subject to the same machinations of interpretation as the 2A.

Nonsense. The First Amendment covers not only individual speech, but also freedom of the press. And speech is useful only if one can have an audience, or disseminate the speech beyond earshot. Money is generally essential to any speech beyond personal discourse. To restrict money is to restrict speech, publication, assembly, and political advocacy in general.
1.25.2008 3:45am
Clayton E. Cramer (mail) (www):

@Clayton E. Cramer That's absolutely absurd. Both of your examples are liberty constraining, that is not what the courts do. Those are not "rights.
Because you define them that way. Many people don't.
1.26.2008 11:32pm