Influence, Affluence, and the First Amendment

Played Dungeons & Dragons in high school.  Picked on by jocks.


The Court’s ruling in the McCutcheon v. FEC case was the right decision. At issue was whether or not Americans have a right to spend as much of their own money as they see fit to support favored political candidates and parties. In a 5 to 4 decision the Supreme Court found that Americans do have that right under the First Amendment.

Prior to the Supreme Court’s ruling, federal law placed two types of restrictions on Americans. The first restriction limits how much you can give directly to political candidates and political parties. The restriction is based on the idea that no individual should have excessive influence with any particular candidate or party. The idea is to prevent a single donor from bankrolling an entire campaign. This restriction is still federal law and was not immediately impacted by the McCutcheon case.

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A MODERATE PROPOSAL For Advancing the Cause of Marriage Equality

polygamy_wedding_rings12862463872Last week’s decisions by the Supreme Court constitute a milestone in the progress of the United States toward complete equality and justice, paving the way as they do for nationwide acceptance of gay marriage.  The nullification of the indefensible Defense of Marriage Act and the overturning of California’s Proposition 8 are especially welcome in their affirmation of American values on the eve of our nation’s 237th birthday.  At the risk of dampening the celebration, however, I gently suggest that the full legalization of same-sex marriage, however commendable in its own right, represents only a partial solution to the problem of marriage inequality, for Americans whose sexual orientation is pluralistic in nature remain outside the pale.  Their marriages are illegal, their very identity is denied, and they experience discrimination on a daily basis because their capacity for love transcends the restrictive custom of monogamy.

I shall now therefore humbly propose my own thoughts, which I hope will not be liable to the least objection.

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Proposition 8 and Messy Disagreements

two_wedding_ringsThe verdict is in, and for those of us who have watched these cases closely, listened to oral arguments and read briefs, here is the result – the Supreme Court has ruled on two pieces of the same-sex marriage (SSM) legal puzzle. The striking down of the Defense of Marriage Act’s definition section is fairly straightforward, but I’ll write about it in a few days, once the dust settles a bit. But the ruling on California’s Proposition 8 is a real head-scratcher. What, exactly, did the court decide?

Let’s take a look…

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Marshall Law

Much has been written lately about the predicament that Roberts was in: How to make a ruling on an controversial piece of legislation without looking partisan?  Some conservatives have argued that Roberts tried to protect the legitimacy of the Court by deflecting  what surely would have been a campaign year issue if conservatives struck down the legislation.  The argument goes that by upholding the legislation but denying its constitutionality under the Commerce clause, Roberts pulled a John Marshall by bolstering the Court’s authority, restricting the power of Congress, and reminding the American people that good policy is defined by the ballot box rather than the gavel.

The Supreme Court, while preserving its reputation, divested itself of its function to uphold the Constitution as the Founders intended it.  The ruling that Congress cannot force people to buy a product by invoking the commerce clause seems logical enough.  The subsequent finding that Congress can compel people to buy a product through taxation seems to reject the idea of limited government.  If Congress can do anything under the guise of a tax, what limits are there?  Can they tax me if I fail to eat broccoli?   Can I be taxed if I fail to drive an eco-friendly car?  Are taxes an appropriate means of compelling me to go to the gym?  In short, if Roberts really wanted to invoke John Marshall here he should have remembered Marshall’s admonition in McCulloch vs Maryland that the “power to tax is the power to destroy.”

John Marshall

In essence, the Court’s ruling effectively means there is no such thing as limited government as long as government action is framed as a tax.  If there are no limits on government action, then a constitution is effectively a paper barrier against the designs of ambitious men.  The Court does have an obligation to the country, and it goes beyond preserving the integrity of the Court.  It has an obligation to preserve the Constitution.  Four of the five justices seem to have understood that.