Citizens United

While I generally like Reason, this post kind of irritates me. With the exception of some fundamental rights that are necessary to the operation of a democracy, I'd prefer most policy choices be left to normal statutory law. But when courts snatch policy decisions from the democratic process using some specious constitutional theory, then the only recourse remaining to the people is to amend the constitution.

What Welch has done is lump together constitutional decisions based upon actual constitutional provisions --like the flag burning decision based on the First Amendment--with policy decision masquerading as constitutional law--like the right to abortion or same-sex marriage. I think most people who are pro-life or pro-traditional marriage would be more than happy to leave those decisions to the democratic process if the courts did, too.

Really, Welch is saying the constitutions should always represent his policy preference of expanding freedom. We can agree that increasing freedom is good, but I guess we don't agree on what constitutes increasing freedom. For instance abortion might increase the freedom of pregnant women but it significantly decreases the freedom of the unborn. So the constitution should always expand freedom and freedom is what Welch says it is.

On a semi-related topic, I also think Stossel way oversimplifies the complexity of the First Amendment jurisprudence. Talking about the recent Supreme Court decision in Citizens United that held corporations have First Amendment rights, Stossel writes:

This should be obvious. The First Amendment reads: "Congress shall make no law ... abridging the freedom of speech, or of the press." What part about "Congress shall make no law" don't the other justices understand?

But really there are all kinds of speech that congress can abridge. Like the classic example of yelling "fire" in a crowded theater. Or what about a conspiracy to commit murder. Both of these are speech of a type, but not protected by the First Amendment. So while I agree that this was the Supreme Court reached the right decision, the correct analysis is, in fact, more subtle that simply reading the text. See, here, here and here for a more thorough analysis.