You are here

The Constitution And Broad First Amendment Freedoms Are Obsolete, Say Left-Leaning Judges And Constitutional Law Professors

The progressive Georgetown University constitutional law professor Louis Michael Seidman argued Monday in The New York Times that we should just ignore the Constitution and its limits, since it led to the "fiscal cliff" (a combination of painful tax increases and long-overdue spending cuts that would have cut the federal budget deficit in half). “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions,” Seidman wrote in an op-ed entitled, "Let's Give Up on the Constitution." Congress and the President averted the so-called "fiscal cliff" by extending the Bush tax cuts for all but high-income households, and delaying for two months the automatic budget cuts that it contained. Many economists view this "cure" for the fiscal cliff as being worse than the disease.

But the comically left-wing and irresponsible Seidman thought that gutting the entire constitution (including its separation of powers and the requirement "that revenue measures originate in the" House of Representatives), would have been worth it to eliminate the measures contained in the fiscal cliff. In my opinion, the so-called "fiscal cliff" contained too many tax increases, and not enough budget cuts (although those cuts were extremely valuable and helpful), but it still reflected thoughtful attempts to get the deficit under control (the cuts were adopted in the 2011 deal between Congress and the president to allow the national debt ceiling to increase in exchange for budget cuts later on), not a systemic government failure that justified shredding the Constitution. And as the Congressional Budget Office and the GAO noted earlier, while the fiscal cliff's painful medicine would have shrunk the economy in the short-run, it would have increased the size of the economy in the medium and long run, since, by reducing the size of the national debt, it would have reduced mushrooming debt service costs, costs that crowd out productive private investment.

(Sadly, in law school, I was forced to buy a constitutional law textbook co-authored by Seidman, a cartoonish caricature of the Constitution that celebrated court rulings twisting the Constitution into a pretzel, and ignored many of its politically incorrect structural safeguards on government power. Seidman's contempt for the Constitution is not new, but now, as he approaches retirement, he no longer bothers to cloak it in disingenuous progressive "living constitution" claptrap.)

While Seidman was preaching contempt for the Constitution, the radical former law professor Goodwin Liu, whose nomination by Obama to be on the Ninth Circuit Court of Appeals was thwarted by the Senate, was counseling evasion of the First Amendment. (After his federal appeals court nomination was defeated, he was appointed by California Governor Jerry Brown to the California Supreme Court.) With Liu voting in the majority, the California Supreme Court undermined property rights and the First Amendment rule against content discrimination by forcing an employer to host union picketing on its own private property. Liu argues that speech by businesses or other economic entities, or on their premises, can be sharply restricted by the government, to achieve the goals of the modern regulatory state: he approvingly cites progressive legal scholars exulting that "large areas of communication still remain untouched by the First Amendment," and that "the state [supposedly] may criminalize speech [that] is face-to-face, informational, particular, and for private gain." This claim is at odds with the First Amendment's established protection for commercial speech, which liberal justices once defended more avidly than conservatives, before they became less enthusiastic than conservatives about it, as American conservatism became more tolerant, and American liberalism decayed into controlling statist orthodoxy.

Alarmingly, Liu also approving cited a left-leaning legal scholar's claim "the First Amendment's coverage in the civil context may be partly explained by the existence or absence of a sympathetic class of litigants or a well-entrenched regulatory scheme." So if Goodwin Liu doesn't empathize with you, you apparently don't deserve free speech (an outlook that echoes Obama's claim that empathy rather than purely legal considerations should dictate the outcome in certain cases). Liu also argues that "the Supreme Court has consistently rejected First Amendment challenges to content-based speech regulations in the context of labor relations" and that content-based restrictions on speech are just fine in areas like antitrust law. (His argument gives short shrift to Supreme Court decisions limiting the reach of labor and antitrust law on First Amendment grounds, cases like BE&K Construction v. NLRB and the Noerr-Pennington line of cases, and lower court rulings limiting federal law's reach over speech, like Rodriguez v. Maricopa Community College, and White v. Lee.) Once upon a time, left-leaning judges were more likely to rule in favor of free speech than conservative judges, but, alas, that time has long passed, and UCLA law professor Eugene "Volokh found that the conservatives have been considerably more likely to vote in favor of First Amendment claimants than liberals on the [Supreme] court" since 1994.

Liu's pinched interpretation of the First Amendment came in a case known as Ralph's Grocery v. United Food and Commercial Workers Union Local 8. In its decision in that case, the California Supreme Court refused to follow a federal appeals court ruling invalidating a requirement that employers host labor picketing, but not other picketing (Waremart Foods v. N.L.R.B. (2004)). The state supreme court disregarded the fact that a California statute imposing this requirement discriminates based on the content of speech without any compelling reason for doing so (the union could have picketed instead on nearby public property, without trespassing on the employer's property). It rejected the employer's challenge to forcing it to host the picketing, based on the reasoning that the employer's property was not a public forum, which turns logic upside down, since the fact that the employer's property was not a public forum is an added reason to leave it alone, and since the purpose of public-forum analysis is to distinguish among different owned government-owned settings based on whether public debate is permitted there (such as distinguishing a public park designed partly for speaking and assembly, from a government office designed for working, not public intrusion or debate), not to deny the First Amendment's protection in private settings where First Amendment norms protected speech even before the concept of a public forum was invented -- and which thus are fully protected against government meddling by the First Amendment regardless of whether they resemble "public forums." As the Ninth Circuit Court of Appeals once noted, “Private property affords the strongest protection to free speech,” so speech in a company-owned bus shelter would be just as protected as speech in a government-owned public forum.  Metro Display. Advertising, Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998). (For example, your home is not a public forum, but that doesn't mean the government can restrict speech there -- the Supreme Court has said that the government cannot restrict the books that you possess in your own home, even if they contain obscenity that could be banned in public forums, and it has no more power to ban signs that you display from your home based on their viewpoint than it does to ban such signs in traditional public forums.)