Source: Reader Supported News
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*By Steve Weissman, Reader Supported News
The more I enjoy watching Glenn Greenwald do battle against the intrusive surveillance of the National Security Agency (NSA) and match wits with the dim lights of the mainstream media, the more I admire him as the kind of fiercely independent, doggedly honest, and politically engaged journalist we desperately need to clone. But, as a white-bearded defender of free speech on both sides of the Atlantic, I have to raise doubts about Glenn's reading of Constitutional law, which -- if unchallenged -- could seriously weaken the new liberal populism that many of us now see on the American horizon.
The doubts first emerged in 2010, when the Supreme Court made its landmark decision in Citizens United, empowering corporations, associations, and labor unions to independently spend as much as they wanted to support political candidates in elections. In his regular column for Salon, Glenn responded with a highly nuanced set of arguments. He is, after all, not just a journalist, but also a well-schooled Constitutional attorney.
"The case, Citizens United v. FEC, presents some very difficult free speech questions, and I'm deeply ambivalent about the court's ruling," he wrote...
"There are several dubious aspects of the majority's opinion (principally its decision to invalidate the entire campaign finance scheme rather than exercising 'judicial restraint' through a narrower holding.) Beyond that, I believe that corporate influence over our political process is easily one of the top sicknesses afflicting our political culture. But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints."
In all this, Glenn seems to me spot on. I strongly agree that the Court should have ruled very narrowly in favor of Citizen United's right to broadcast their TV documentary and supporting ads against Hillary Clinton. As Glenn wrote, and every defender of free speech should understand, "It's best for the government to stay out of the business of restricting political advocacy."
But, as Glenn noted, the majority of the Court did not rule narrowly in favor of free speech. Instead, they piled on free speech arguments to strengthen the hand of Big Money in our political process, an outcome Glenn clearly opposed even as he devoted the bulk of his column to providing rhetorical ammunition that supported the Supremes in their Constitutional sleight of hand and plutocratic overreach.
Above all, he tells us, we should never judge the Court's rulings by the outcomes they will produce. That's irrelevant, he rules. "The 'rule of law' means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like."
That might seem a noble thought, and I concur when it comes to protecting the free speech of fascists. But Glenn's argument assumes that "the law" exists in some pristine form within the Constitution and that the justices are just simply trying to discover, discern, or reveal it. Some people actually believe that, just as they believe -- or pretend to believe -- that truth exists in the written words of the Bible, the Koran, or other scriptural sources. I would have expected Glenn to take a less romantic, more realistic view, in line with his brilliant debunking of a similar fairy tale, the myth of "objective journalism."
A good starting point on the legal front might be what former chief justice Charles Evans Hughes said back in 1907, that "the Constitution is what the judges say it is." Don't get me wrong. I am not suggesting that the Constitution's text and legal precedents are irrelevant. Not at all. They frame the debates and provide the arguments and "values" that the justices use to convince each other and legitimize to the rest of us whatever they decide the Constitution now says, even if that differs radically from what it supposedly said last week or will say some time in the future.
Contrary to Glenn's proscription, outcomes motivate much of what the Court decides, often blatantly as in Bush v. Gore, and sometimes with ideological, ruling class certainty, as in the Court's original decision that the 14th Amendment gave corporations the same Constitutional right to equal protection that it gave to the newly freed slaves. This was in the 1886 case of Santa Clara County v. Southern Pacific Railroad, which established the corporate personhood notion that continues to plague us in Citizens United.
Conservatives on the Court have generally looked to outcomes in trying to block or roll back the reforms of the Progressive Era and New Deal. Justice Anthony Kennedy's majority opinion in Citizens United clearly looks to strengthen corporate dominance in our political process, an outcome Kennedy camouflages with free speech arguments that Justice John Paul Stevens demolishes in his dissenting opinion for the minority. And, if the present generation of progressives and liberal populists manages to create a new wave of social and economic reforms, you can bet your last nickel that the judicial conservatives will use similar reasoning to kill those reforms. Sadly, if we follow Glenn's logic and ignore outcomes, we will doom ourselves to defeat. Why on earth would we want to do that just to preserve a legal myth?
*A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France, where he is researching a new book, "Big Money: How Global Banks, Corporations, and Speculators Rule and How To Break Their Hold."