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> rule on what the law is, not decide what the law should be Seems like that's very hard to square with Citizens or Shelby County, both of which overturned qui

> rule on what the law is, not decide what the law should be Seems like that's very hard to square with Citizens or Shelby County, both of which overturned quite clearly written laws with long-accepted interpretations. The textualism stuff is, at best, an excuse used when the court wants to do nothing. It doesn't limit the court when it wants to make changes. In this case, the court took as narrow a step as possible into the minefield that leads to Qualified Immunity. It's a baby step in the right direction, but it's just a baby step.

dcolkitt 6y ago
Citizens United was based on the law being unconstitutional, not the court’s interpretation of the law.
- newacct583 6y ago
  I know the reasoning. It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it. Again, it's just excuse-making. If you don't want to do something you write a narrow opinion and put the responsibility on congress to provide specificity. If you want to do something big you throw out a law based on the constitution. In this case, they held the way they did because they did not want to write a broad finding, and absolutely not because their hands were bound by some imaginary principle.
  - racnid 6y ago
    If one person has a right to free speech then logically groups of people have rights to free speech, there's really no other way to look at that.
  - Meekro 6y ago
    Citizens United (the group) was a non-profit advocacy group that wanted to publish a video critical of a politician. The government wanted to stop that video from being published. That is not money-as-speech, it's speech-as-speech.
    - newacct583 6y ago
      Citizen's United (the case) held that any government restriction on political spending was presumptively illegal and in violation of the first amendment. That is exactly my point. It was NOT a narrow ruling tailored toward the needs of PACs trying to avoid censorship. It was a extremely broad ruling throwing out the whole concept of campaign finance regulation.
    - hypersoar 6y ago
      This is a common and misleading description. I encourage you to read the decision and at least part of Stevens's dissent (which is twice as long as the decision itself). I know it's a lot of pages, but it's got big fat margins. Now. (Reposting a comment I made elsewhere) Before Citizens United, any US majority-owned corporation or union was allowed to make political contributions from a segregated fund. The money in that fund could only come from employees and shareholders. This was, in decades of previous legislation and case law, considered sufficient to protect the 1st Amendment interests of associations of individuals. They can pool their money together for political purposes, put they can't pool it with other people's money. Before the ruling, Citizens United was allowed to spend money on political activity. They were allowed to spend money on political activity close to an election. They were allowed to spend money, close to an election, to broadcast issue-based political advertisement (e.g., for or against a ballot initiative) on TV. They were allowed to spend money distributing their documentary in any way other than broadcasting it on TV. They could show it in theaters. They could put it on the internet. They could print DVDs and mail them out. They could distribute it to PACs and campaigns for them to spend their own money distributing it, including broadcasting by on TV. They could pay money, close to an election, from a segregated fund, to broadcast their documentary on TV. All they weren't allowed to do was spend money, close to an election, on broadcasting something expressing views for or against a political candidate, on television or radio, to an audience of at least 50,000, close to the election. Corporations were not banned from electioneering before Citizens United. They were restricted. The laws imposing those restrictions went back until at least the early 1900s. There was a century of case law find some such restrictions constitutional. There was a decision in 2003, just 7 years before Citizens United, upholding the very restrictions that CU struck down. The majority's argument rested on the idea that no "identity-based" restrictions on 1st-Amendment rights are constitutional. But there are such restrictions, e.g. against prisoners, students, and employees of the executive branch. These restrictions remain in place today. The majority invented a 1st-Amendment principle and then selectively applied it to corporations. They did so with no fact-finding in the record of the case on whether the provisions they struck down actually chilled free speech. Fact-finding that the government wanted to do before Citizens United (the organization) dropped the issue. The majority in Citizens United flipped the table on decades of election law that had survived scrutiny several times before without even claiming that any circumstances had changed. They did it solely because they didn't like the outcome. And they bent over backwards to do it.
  - otterley 6y ago
    What is so novel about holding that the First Amendment means what it says about the rights of freedom of speech and to peaceably assemble?
    - newacct583 6y ago
      Because it holds that right applies to the ability to pay for media space and not to speak or assemble, and to be done by a PAC, not a person.
      - otterley 6y ago
        How do you think assemblies of people get together to speak who can’t all be in the same place at the same time? They have been paying spokespeople since time immemorial.
        newacct583 6y ago
        I don't think anyone here is interested in debating the merits of Citizen's from first principles. Suffice it to say that your reasoning is not the one the court chose, so I don't know where you're going with this. My point was simply the wording above: the court CHOSE to issue a very broad decision in Citizen's, just as it chose NOT to issue one here. And the reason is just simple desire and not any kind of principle. The court wanted to, and that's as far as it goes. You see the same skew in logic in arguments about Roe, where the same people (like you) who think Citizen's is fine for throwing out huge regulatory areas based on a novel reading of the constitution suddenly think it's "judicial activism" to find a right to medical privacy in the due process clause.
        otterley 6y ago
        I was merely responding to your specific comment which seemed to suggest that a holding that groups have First Amendment rights and that they can pay people to represent them was somehow novel. “It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it.” There is an enormous volume of prior case law that says the same thing.
  - ravi-delia 6y ago
    This may be totally untrue, but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment, they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on. Regardless, the Citizen's United decision was actually pretty clearly pro-free speech, and abuses by companies may well be cleaned up as time goes on and more cases reach the Supreme Court (or so said Scalia when I asked him, honestly it did sound like he was a little embarrassed about how his opinion turned out)
    - alexeldeib 6y ago
      > or so said Scalia when I asked him When you asked him about it? That piqued my interest, what was the context? Why'd he seem embarrassed? The name drop begs for more details :)
    - ikiris 6y ago
      I don't believe that Scalia has ever been embarassed by his blatant intellectual dishonesty in efforts to justify a conclusion he'd like to reach.
      - memling 6y ago
        > his blatant intellectual dishonesty Sincerely curious: do you have examples? Scalia's a controversial justice, to say the least, for a variety of reasons, but I don't quite understand this criticism. (I do understand not liking his jurisprudence or his abrasive style.) He and Justice Ginsburg, for example, were famous friends while holding opposite opinions about how to interpret and read the U.S. Constitution; one would think she would've called him out on blatant dishonesty (intellectual or otherwise)
    - dragonwriter 6y ago
      > but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment, That seems...implausible: Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have power to enforce this article by appropriate legislation. > they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on. The Court (and courts in general) don't tend to look to authorial intent as the original intent that matters, but legislative intent (the intent of the body/(-ies) adopting the provision.) So, the word of the “only living author” wouldn’t be the only thing anyone had to go on; they’d have the records of legislative debates. And an authorial position (even if well-documwnted) that wasn't actively considered in legislative debate would probably not be considered to have much weight.
  - dragonwriter 6y ago
    > It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) No they weren't. Money as speech, for instance, was a bedrock of earlier campaign finance decisions stretching back at least to Buckley v. Valeo, 424 U.S. 1 (1976). https://supreme.justia.com/cases/federal/us/424/1/#tab-opinion-1951589 https://supreme.justia.com/cases/federal/us/424/1/#tab-opini...
  - simonh 6y ago
    Corporate personhood is a very long established legal concept. It even pre-dates the foundation of the USA, with the principle found in India well over 2000 years ago and in the legal status of Medieval guilds. There is nothing novel about it. The very word corporation derives from the Latin "corpus" or body. I'm a Brit so have not particular standing in this. If I were a US citizen I would deplore the Citizen's United decision, but not on the grounds of corporate personhood (which as I understand it was never mentioned in the ruling), but rather on the grounds that religious freedom should not grant special rights and privileges not available otherwise. It should be a freedom of belief, not a freedom of action.
    - mrkstu 6y ago
      Religious freedom (of either type) isn'† relevant in any way to Citizen United as far as I'm aware- can you clarify the nature of your objection?
- OpieCunningham 6y ago
  What’s the difference between a court opining that a law is unconstitutional and a court interpreting a law as unconstitutional?
  - matt_kantor 6y ago
    It's not "interpreting a law as unconstitutional", just "interpreting the law". As in "how does the law apply to this situation?".
    - OpieCunningham 6y ago
      So there’s an external source for this objective information, or are the judges making their own individual interpretations of “how the law applies”? If the former, why do we end up with split votes that so often fall down partisan lines? Seems like if there were a correct interpretation of a law as distinct from an opinion of a law, they would all have access to it and we could cut the justices down from 9 to 1. And we could call that judge The Conveyor of Truth. Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
      - matt_kantor 6y ago
        I didn't say that it's objective or that there is a single "correct" interpretation of every law.
        OpieCunningham 6y ago
        OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense. So I'm not sure what your point is.
        matt_kantor 6y ago
HexagonalKitten 6y ago
I like textualism. The point of the supreme court isn't to get everything right, it's to kick badly written law back to the legislators. How do you know the text needs fixing if you don't stick to the text? Sometimes it is just thrown out to cover bias, but that's not its fault.
- OpieCunningham 6y ago
  Textualism is nothing more than interpreting something in a way that you believe doesn't align with some older thing you also interpreted in a way. "I believe this new law is incompatible with what I believe this old rule says." You may be right or you may be wrong, anyone can do it, and anyone who does will mostly come to their conclusion based upon their personal political beliefs. Hence, a reason the Supreme Court has so many partisan split rulings. Textualism is pure nonsense, used to present a false sense of rationality to an opinion. Any self-proclaimed textualist is either deceiving themselves or attempting to deceive others.
  - HexagonalKitten 6y ago
    > Textualism is pure nonsense, used to present a false sense of rationality No. You're just saying that people have biases and thus everything is a lie. Textualism is a thing, and exists outside of law. Textualists think that the authors specific words are important. "Why did Tolkien say X? It must matter, he's a careful author." I value it in the field of law because legal disputes caused by textual confusion can be avoided through careful writing and textualism leads to the type of thinking that is capable of that. And if nobody cared about the words, how sloppy would the thinking also be?
    - OpieCunningham 6y ago
      Textualism outside of law is fun. Enjoy. In the context of law, and this entire thread, it's nonsense used by people to make themselves think they are smart, or trick other people into thinking they must be smart. In law, everything is textualism, and therefore anyone who claims textualist jurisprudence as a distinct thing they practice are simply attempting to classify anyone else as not smart enough to form valid opinions about what words and phrases mean.

dcolkitt 6y ago

Citizens United was based on the law being unconstitutional, not the court’s interpretation of the law.

newacct583 6y ago
I know the reasoning. It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it. Again, it's just excuse-making. If you don't want to do something you write a narrow opinion and put the responsibility on congress to provide specificity. If you want to do something big you throw out a law based on the constitution. In this case, they held the way they did because they did not want to write a broad finding, and absolutely not because their hands were bound by some imaginary principle.
- racnid 6y ago
  If one person has a right to free speech then logically groups of people have rights to free speech, there's really no other way to look at that.
- Meekro 6y ago
  Citizens United (the group) was a non-profit advocacy group that wanted to publish a video critical of a politician. The government wanted to stop that video from being published. That is not money-as-speech, it's speech-as-speech.
  - newacct583 6y ago
    Citizen's United (the case) held that any government restriction on political spending was presumptively illegal and in violation of the first amendment. That is exactly my point. It was NOT a narrow ruling tailored toward the needs of PACs trying to avoid censorship. It was a extremely broad ruling throwing out the whole concept of campaign finance regulation.
  - hypersoar 6y ago
    This is a common and misleading description. I encourage you to read the decision and at least part of Stevens's dissent (which is twice as long as the decision itself). I know it's a lot of pages, but it's got big fat margins. Now. (Reposting a comment I made elsewhere) Before Citizens United, any US majority-owned corporation or union was allowed to make political contributions from a segregated fund. The money in that fund could only come from employees and shareholders. This was, in decades of previous legislation and case law, considered sufficient to protect the 1st Amendment interests of associations of individuals. They can pool their money together for political purposes, put they can't pool it with other people's money. Before the ruling, Citizens United was allowed to spend money on political activity. They were allowed to spend money on political activity close to an election. They were allowed to spend money, close to an election, to broadcast issue-based political advertisement (e.g., for or against a ballot initiative) on TV. They were allowed to spend money distributing their documentary in any way other than broadcasting it on TV. They could show it in theaters. They could put it on the internet. They could print DVDs and mail them out. They could distribute it to PACs and campaigns for them to spend their own money distributing it, including broadcasting by on TV. They could pay money, close to an election, from a segregated fund, to broadcast their documentary on TV. All they weren't allowed to do was spend money, close to an election, on broadcasting something expressing views for or against a political candidate, on television or radio, to an audience of at least 50,000, close to the election. Corporations were not banned from electioneering before Citizens United. They were restricted. The laws imposing those restrictions went back until at least the early 1900s. There was a century of case law find some such restrictions constitutional. There was a decision in 2003, just 7 years before Citizens United, upholding the very restrictions that CU struck down. The majority's argument rested on the idea that no "identity-based" restrictions on 1st-Amendment rights are constitutional. But there are such restrictions, e.g. against prisoners, students, and employees of the executive branch. These restrictions remain in place today. The majority invented a 1st-Amendment principle and then selectively applied it to corporations. They did so with no fact-finding in the record of the case on whether the provisions they struck down actually chilled free speech. Fact-finding that the government wanted to do before Citizens United (the organization) dropped the issue. The majority in Citizens United flipped the table on decades of election law that had survived scrutiny several times before without even claiming that any circumstances had changed. They did it solely because they didn't like the outcome. And they bent over backwards to do it.
- otterley 6y ago
  What is so novel about holding that the First Amendment means what it says about the rights of freedom of speech and to peaceably assemble?
  - newacct583 6y ago
    Because it holds that right applies to the ability to pay for media space and not to speak or assemble, and to be done by a PAC, not a person.
    - otterley 6y ago
      How do you think assemblies of people get together to speak who can’t all be in the same place at the same time? They have been paying spokespeople since time immemorial.
      - newacct583 6y ago
        I don't think anyone here is interested in debating the merits of Citizen's from first principles. Suffice it to say that your reasoning is not the one the court chose, so I don't know where you're going with this. My point was simply the wording above: the court CHOSE to issue a very broad decision in Citizen's, just as it chose NOT to issue one here. And the reason is just simple desire and not any kind of principle. The court wanted to, and that's as far as it goes. You see the same skew in logic in arguments about Roe, where the same people (like you) who think Citizen's is fine for throwing out huge regulatory areas based on a novel reading of the constitution suddenly think it's "judicial activism" to find a right to medical privacy in the due process clause.
        otterley 6y ago
        I was merely responding to your specific comment which seemed to suggest that a holding that groups have First Amendment rights and that they can pay people to represent them was somehow novel. “It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it.” There is an enormous volume of prior case law that says the same thing.
- ravi-delia 6y ago
  This may be totally untrue, but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment, they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on. Regardless, the Citizen's United decision was actually pretty clearly pro-free speech, and abuses by companies may well be cleaned up as time goes on and more cases reach the Supreme Court (or so said Scalia when I asked him, honestly it did sound like he was a little embarrassed about how his opinion turned out)
  - alexeldeib 6y ago
    > or so said Scalia when I asked him When you asked him about it? That piqued my interest, what was the context? Why'd he seem embarrassed? The name drop begs for more details :)
  - ikiris 6y ago
    I don't believe that Scalia has ever been embarassed by his blatant intellectual dishonesty in efforts to justify a conclusion he'd like to reach.
    - memling 6y ago
      > his blatant intellectual dishonesty Sincerely curious: do you have examples? Scalia's a controversial justice, to say the least, for a variety of reasons, but I don't quite understand this criticism. (I do understand not liking his jurisprudence or his abrasive style.) He and Justice Ginsburg, for example, were famous friends while holding opposite opinions about how to interpret and read the U.S. Constitution; one would think she would've called him out on blatant dishonesty (intellectual or otherwise)
  - dragonwriter 6y ago
    > but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment, That seems...implausible: Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have power to enforce this article by appropriate legislation. > they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on. The Court (and courts in general) don't tend to look to authorial intent as the original intent that matters, but legislative intent (the intent of the body/(-ies) adopting the provision.) So, the word of the “only living author” wouldn’t be the only thing anyone had to go on; they’d have the records of legislative debates. And an authorial position (even if well-documwnted) that wasn't actively considered in legislative debate would probably not be considered to have much weight.
- dragonwriter 6y ago
  > It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) No they weren't. Money as speech, for instance, was a bedrock of earlier campaign finance decisions stretching back at least to Buckley v. Valeo, 424 U.S. 1 (1976). https://supreme.justia.com/cases/federal/us/424/1/#tab-opinion-1951589 https://supreme.justia.com/cases/federal/us/424/1/#tab-opini...
- simonh 6y ago
  Corporate personhood is a very long established legal concept. It even pre-dates the foundation of the USA, with the principle found in India well over 2000 years ago and in the legal status of Medieval guilds. There is nothing novel about it. The very word corporation derives from the Latin "corpus" or body. I'm a Brit so have not particular standing in this. If I were a US citizen I would deplore the Citizen's United decision, but not on the grounds of corporate personhood (which as I understand it was never mentioned in the ruling), but rather on the grounds that religious freedom should not grant special rights and privileges not available otherwise. It should be a freedom of belief, not a freedom of action.
  - mrkstu 6y ago
    Religious freedom (of either type) isn'† relevant in any way to Citizen United as far as I'm aware- can you clarify the nature of your objection?
OpieCunningham 6y ago
What’s the difference between a court opining that a law is unconstitutional and a court interpreting a law as unconstitutional?
- matt_kantor 6y ago
  It's not "interpreting a law as unconstitutional", just "interpreting the law". As in "how does the law apply to this situation?".
  - OpieCunningham 6y ago
    So there’s an external source for this objective information, or are the judges making their own individual interpretations of “how the law applies”? If the former, why do we end up with split votes that so often fall down partisan lines? Seems like if there were a correct interpretation of a law as distinct from an opinion of a law, they would all have access to it and we could cut the justices down from 9 to 1. And we could call that judge The Conveyor of Truth. Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
    - matt_kantor 6y ago
      I didn't say that it's objective or that there is a single "correct" interpretation of every law.
      - OpieCunningham 6y ago
        OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense. So I'm not sure what your point is.
        matt_kantor 6y ago

HexagonalKitten 6y ago

I like textualism. The point of the supreme court isn't to get everything right, it's to kick badly written law back to the legislators. How do you know the text needs fixing if you don't stick to the text? Sometimes it is just thrown out to cover bias, but that's not its fault.

OpieCunningham 6y ago
Textualism is nothing more than interpreting something in a way that you believe doesn't align with some older thing you also interpreted in a way. "I believe this new law is incompatible with what I believe this old rule says." You may be right or you may be wrong, anyone can do it, and anyone who does will mostly come to their conclusion based upon their personal political beliefs. Hence, a reason the Supreme Court has so many partisan split rulings. Textualism is pure nonsense, used to present a false sense of rationality to an opinion. Any self-proclaimed textualist is either deceiving themselves or attempting to deceive others.
- HexagonalKitten 6y ago
  > Textualism is pure nonsense, used to present a false sense of rationality No. You're just saying that people have biases and thus everything is a lie. Textualism is a thing, and exists outside of law. Textualists think that the authors specific words are important. "Why did Tolkien say X? It must matter, he's a careful author." I value it in the field of law because legal disputes caused by textual confusion can be avoided through careful writing and textualism leads to the type of thinking that is capable of that. And if nobody cared about the words, how sloppy would the thinking also be?
  - OpieCunningham 6y ago
    Textualism outside of law is fun. Enjoy. In the context of law, and this entire thread, it's nonsense used by people to make themselves think they are smart, or trick other people into thinking they must be smart. In law, everything is textualism, and therefore anyone who claims textualist jurisprudence as a distinct thing they practice are simply attempting to classify anyone else as not smart enough to form valid opinions about what words and phrases mean.