Justice Holmes awakens
So writes Mimi Marziani in the National Law Journal, lamenting the Supreme Court’s decision in Citizens United v. FEC, issued on Jan. 21, 2010. That’s the controversial case holding that corporations have a right to speak out on political issues without being censored.
What’s the connection with Justice Oliver Wendell Holmes, Jr., who died back in 1935? Well, Holmes spent much of his long career arguing against the idea that the U.S. Constitution is a bulwark of liberty, a barrier to governmental infringements on individual rights. So Marziani is right that Holmes, if he were alive today, would have dissented in the Citizens United case—just as he dissented more than a century ago in the case forever associated with his name, Lochner v. New York. (In that 1905 case, the Court struck down a maximum-hours law for bakers.)
In fact, Marziani says, there’s a direct parallel between the two famous cases. Citizens United, she asserts, is “Lochner’s 21st century equivalent.” Why? Because both cases were driven by a conviction that the Constitution should be interpreted where possible to protect people against the awesome power of government to violate their rights. Along with Holmes, Marziani believes that the Constitution is agnostic on the relationship between individuals and the state.
So, in the Citizens United dispute between government censors (which is how the Supreme Court described campaign finance regulators) and muzzled corporations, Marziani would have us believe that the Constitution has nothing to say, nothing to justify the Supreme Court in striking down the law. And she takes it for granted that invoking Holmes’s name will add luster to her position.
But as I argued last year in “Justice Holmes and the Empty Constitution,” Holmes’s status as a spokesman for the Constitution’s true meaning is as undeserved as it is dangerous. The more often “poor Justice Holmes” turns in his grave, the more likely it is that progress is being made toward a recognition that the Constitution is a framework for liberty.
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