01/31/2014 12:00 pm ET | Updated Apr 02, 2014

Constitutional Change and Manageable Standards

In a blog post this week, Former White House Counsel Bob Bauer critiqued an essay I wrote recently entitled "Constitutional Purpose and the Anti-Corruption Principle." The basic argument of my essay is that the global purposes of the Constitution should be relevant in making hard Constitutional decisions. We ought look beyond the purposes of particular clauses and to the Constitution as a whole when making sense of the application of particular clauses. As I point out in the essay, Courts already do this: they interpret clauses to be consistent with the global principle of Separation of Powers, for instance, even though there is no "Separation of Powers" clause. Therefore, given the strong historical evidence that anti-corruption concerns were as fundamental as any other at the Constitutional convention, anti-corruption concerns should get significant constitutional weight when interpreting other clauses, like the First Amendment.

Bauer's rejoinder comes down to two arguments. First, he argues that the thesis of the essay will not persuade the majority of members of the current Court. That seems true. My goal, as the goal of most scholarship, is not largely instrumental, and certainly not instrumental in the short term. Instead, I hope to reach scholars who teach future Justices, reporters who teach the public, and people who learn about the Constitution for themselves. We know that constitutional change happens--I've lived through fairly radical interpretive shifts just since I became a lawyer 15 years ago--and I write for the future, not to the present. I am not writing to Justice Sanford in Whitney v. California, the 1927 case upholding California's Criminal Syndicalism Act--I am writing in the hope that a future Justice Harlan, 30 years later, might understand things differently.

Second, he argues that those who won't be persuaded won't be persuaded because the concept of corruption is fundamentally unmanageable. I agree with Bauer that this is what Justice Scalia would say. However, the most important commitments of our democracy never have precise contours. They are manageable because we chose to recognize their importance, not because there are ways to measure metes and bounds with clarity. That is true, of course, of some of the more fundamental principles of our constitution that are embedded in language, like the First Amendment or the Equal Protection Clause. It is also true of the Anti-Corruption principle.

At some points, it appears he also thinks that recognizing the anti-corruption principle would lead to "effectively limitless government authority to restrict spending on politics." I disagree. This is like the argument that recognizing the principle of federalism leads to "limitless state authority to trump federal interests." Or, it is like recognizing that there are Free Speech interests in many areas leads to "limitless authority of the courts to overturn laws." It is a variation of the style of argument used by Justice Sanford in Whitney v. California. The criminal syndicalism laws must stand, he said, because: "That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom.... is not open to question." Sanford got it wrong because "absolute right to speak" and "right to speak" are not synonymous any m ore than the "anti-corruption principle" is synonyms with an "absolute anti-coruption principle."

I welcome the exchange, but at some level, Bauer seems to be questioning whether fundamental change in the structure of Constitutional doctrine is possible. I agree with him that it is difficult. But not, I hope, impossible.

As to the practical problem of balancing different commitments? Its something the Court does all the time. In Holder v. Humanitarian Law Project, the Court upheld a statute that criminalized contributions to organizations designated as terrorist organizations by the federal government. The Holder plaintiffs sought a declaration that they could give money to, among other things, "engage in political advocacy on behalf of Kurds who live in Turkey" and "teach PKK members how to petition various representative bodies such as the United Nations for relief." Some of the activity was outside the country, some involved writing and speaking before the United States Congress. Justice Roberts, writing for the Court, held that a statute criminalizing such activities did not violate the First Amendment. In that case, unlike in the campaign finance context, Roberts shed abstraction, formalism and an absolute defense of the First Amendment. Instead, he balanced First Amendment concerns and terrorism concerns. He wrote of the "real dangers at stake" and chided the dissent for its abstraction. He deferred to Congressional judgment that we "we live in a different world: one in which the designated foreign terrorist organizations 'are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.'" He argues that "Training and advice on how to work with the United Nations could readily have helped the PKK in its efforts to use the United Nations camp as a base for terrorist activities." And although he cited to the formal first Amendment doctrine, he concludes with a Constitutional description of the value of protecting against violence: "The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to "provide for the common defence."

Whether or not you agree with the Holder decision, that's what balancing looks like. And a parallel mode of reasoning could happen in a case like McCutcheon, where a Court could talk of the "real dangers at stake" in a corrupted polity, and uphold democratically passed laws designed to protect against that corruption.

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