We hear a lot from assorted political folks about how to interpret the Constitution. One popular among conservatives is called "originalism." Generally, it's defined as assuming that we should interpret the Constitution as if it had a stable content, that we need to look at the original intent of the authors, and if times change, then the steps in Article Five should be used to change it. Original intent has become less popular among originalists who now adhere more to the belief that we should focus on the original meaning, i.e., what reasonable people would have understood the meaning of a phrase to be. This syllogism is closer to textualism and Antonin Scalia is the justice most associated with the philosophy.
I got to thinking about originalism and impeachment and high crimes and misdemeanors. There is lots of loose thinking about impeachment these days. A recent paper by Gene Healy, Indispensable Remedy, helped focus some of these ideas.
The first impeachment of a federal official was in 1803, that of Judge John Pickering formerly of the New Hampshire Supreme Court, then of the US District Court for New Hampshire. He was beginning to show signs of mental impairment soon thereafter and he was impeached by the House for coming to court drunk and raving and ranting and "unlawful rulings." The Federalists raged that Jefferson and his Democratic-Republican Party were trying to eliminate jurists with a federalist mindset. Pickering was convicted and removed from office. He died a year later.
The Federalists' fears were warranted when President Jefferson pushed the House to impeach Justice Samuel Chase (not to be confused with Salmon Chase the later Chief Justice) whose federalist rants from the bench ran clearly against Jefferson's political leanings. Jefferson also feared that the judiciary, thanks to Marshall's establishment of judicial review in 1803, gave the judiciary far too much power. Chase has vehemently protested Jefferson's repeal of the Judiciary Act of 1801 which had eliminated lower court federal judges, many of whom were Federalists. Chase was charged with political bias and defended by Aaroin a trial presided over by vice-president Aaron Burr in a trial before the Senate. The Senate, even though dominated by Jefferson's allies, refused to convict (For more details, a good summary is here. ) His acquittal some have seen as solidifying support for an independent judiciary not subject to political whim.
The Kavanaugh hearings and his partisan rant before the Senate on Thursday reminded me of these two cases and their import. Now, I disagree with Kavanaugh's judicial philosophy, at least as far as it can be determined as an examination of the decisions of Merrick Garland and Kavanaugh provide little dissimilarities and the term "conservative" as a pejorative label strikes me as overly simplistic. His loud, rude, and biased attack on his Senate adversaries was impolite if not stupid. Yet, based on what I heard, calls for impeachment seemed inadvisable. If the trial of Samuel Chase show us nothing else, it demands that we maintain at least the appearance of an independent judiciary. Should Kavanaugh show up drunk on the bench, however, all bets are off.
Sunday, November 25, 2018
Sunday, November 18, 2018
Review: Slavery's Constitution: From Revolution to Ratification by David Waldstreicher
Even though the Constitution never explicitly mentions slavery, it's legacy is throughout. Of the 84 clauses, "six are directly concerned with slaves and their owners. Five others had implications for slavery that were considered and debated. . . " I'm not sure we'll ever escape our heritage of bondage. Even the interpretations of the opinions rendered in Heller and McDonald were grounded firmly in the history of slavery. The minority, which argued for a "militia" interpretation noted that James Madison had been urged not to ignore the right of states to form militias (several states had already enacted constitutional rights to bear arms "for the common defense,") because southern states in particular were terrified of a slave rebellion and wanted to have armed militias to respond. The majority looked to the amendments after the Civil War which applied the Bill of Rights to the states and especially the importance of providing weapons to unarmed slaves to protect themselves from rampaging white Ku-Klux-Klan-like entities.
The three-fifths rule is the most notorious of the Constitution’s nod to enshrining slavery but Waldstreicher argues that many of the property protections written into the Constitution had the effect of protecting that “peculiar institution,” as well. And since all money bills had to originate in the House, the 3/5ths clause gave southern slave holders even more power since they then controlled the purse-strings. Not only that, but it prohibited Congress from making any laws prohibiting trade in slaves for 20 years after ratification. Given their control of the House, they could be pretty sure of few impediments down the road. Rules related to property further protected slave-owners since while ostensibly protecting trade by making property laws federal rather than state, fugitive slave laws were enshrined. (As an aside, the reason why the District of Columbia became the Capitol of the United States rather than Philadelphia, was because Quakers had passed laws freeing slaves whose masters took up residence in Philadelphia and the Founders most of whom owned slaves, did not want to risk losing their property.)
The conventional wisdom is that the Founders ignored the issue of slavery assuming it might disappear gradually, yet Waldreich suggests instead that they were obsessed with the issue. They were attempting to craft a stronger federal government yet had to deal with the parochial rights of the slave states. They preserved the “peculiar institution” while making a stronger federal system. That stronger federal presence, coupled with expanding power of the northern anti-slave states, mixed with some unfortunate Supreme Court decisions like Dred Scott (although it was declaring the Missouri Compromise that really inflamed things) and Prigg v Pennsylvania which overrode states which were trying to prevent local officials from having to enforce the Fugitive Slave Act. Prigg was another nail in the federal bulwark.
Slavery was so intertwined with the economy that its abolishment could only be done on the national level. Wealth was defined less by land than by the number of slaves one owned since they were needed to work the land. Any farm state would be at a serious economic disadvantage by unilaterally abolishing slavery. In the north where industrialization was taking hold, this was less of a factor. The southern states, heavily represented at the Constitutional Convention were determined to enshrine slave rights in the new national government.
Article IV, Section 2, Clause 2 reads:
A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.
Waldstreicher argues these clauses in particular were inserted to please southern slave owners as they prevented slaves from seeking freedom by fleeing to free states. The southern states used the power of the federal government to enforce their property rights (ironic in view of the Nullification Crisis of 1832.) Under Prigg the federal government was left with enforcing the Fugitive Slave Act when states such as Pennsylvania passed laws excluding local magistrates from having to do the enforcement, laws which, of course, enraged the slave states. As Calhoun wrote in a letter, “the new personal liberties laws rendered slave property utterly insecure" and was a "flagrant violation of the spirit of the U.S. Constitution."
Walstreicher argues that the Constitution’s imprecision with regard to slavery (I don’t think t was imprecise at all, it was clearly pro-slavery) led to both sides being able to claim the Constitution was or was not in favor of slavery. Given that most of the founders owned slaves and considered them property, I don’t think Justice Taney really had much choice in deciding Dred Scott in the way he did.
The assumption that southern population would grow faster than that of the north proved illusory as most immigration went to the anti-slave, industrial north thus rendering the infamous three-fifths clause moot and soon the southern states were desperately trying to add slave states to the union to retain some measure of power.
Quote: Many historians insist that the use of the word “slavery” to refer to taxes or restrictions of liberty simply came to seem hypocritical in light of racial slavery. It certainly did eventually, but this emphasis neglects the more basic, original link of British rights to property, the fact that slaves were property, and that both slavery and property were intrinsic to what colonies were all about: agricultural production and trade. . . The Americans had emancipated themselves, but in doing so had raised, not resolved, the question of slavery. On both ides of the Atlantic, people waited to see what exactly Americans meant when they said they would never be slaves.
I also recommend Negro President: Jefferson and the Slave Power by Garry Wills
The three-fifths rule is the most notorious of the Constitution’s nod to enshrining slavery but Waldstreicher argues that many of the property protections written into the Constitution had the effect of protecting that “peculiar institution,” as well. And since all money bills had to originate in the House, the 3/5ths clause gave southern slave holders even more power since they then controlled the purse-strings. Not only that, but it prohibited Congress from making any laws prohibiting trade in slaves for 20 years after ratification. Given their control of the House, they could be pretty sure of few impediments down the road. Rules related to property further protected slave-owners since while ostensibly protecting trade by making property laws federal rather than state, fugitive slave laws were enshrined. (As an aside, the reason why the District of Columbia became the Capitol of the United States rather than Philadelphia, was because Quakers had passed laws freeing slaves whose masters took up residence in Philadelphia and the Founders most of whom owned slaves, did not want to risk losing their property.)
The conventional wisdom is that the Founders ignored the issue of slavery assuming it might disappear gradually, yet Waldreich suggests instead that they were obsessed with the issue. They were attempting to craft a stronger federal government yet had to deal with the parochial rights of the slave states. They preserved the “peculiar institution” while making a stronger federal system. That stronger federal presence, coupled with expanding power of the northern anti-slave states, mixed with some unfortunate Supreme Court decisions like Dred Scott (although it was declaring the Missouri Compromise that really inflamed things) and Prigg v Pennsylvania which overrode states which were trying to prevent local officials from having to enforce the Fugitive Slave Act. Prigg was another nail in the federal bulwark.
Slavery was so intertwined with the economy that its abolishment could only be done on the national level. Wealth was defined less by land than by the number of slaves one owned since they were needed to work the land. Any farm state would be at a serious economic disadvantage by unilaterally abolishing slavery. In the north where industrialization was taking hold, this was less of a factor. The southern states, heavily represented at the Constitutional Convention were determined to enshrine slave rights in the new national government.
Article IV, Section 2, Clause 2 reads:
A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.
Waldstreicher argues these clauses in particular were inserted to please southern slave owners as they prevented slaves from seeking freedom by fleeing to free states. The southern states used the power of the federal government to enforce their property rights (ironic in view of the Nullification Crisis of 1832.) Under Prigg the federal government was left with enforcing the Fugitive Slave Act when states such as Pennsylvania passed laws excluding local magistrates from having to do the enforcement, laws which, of course, enraged the slave states. As Calhoun wrote in a letter, “the new personal liberties laws rendered slave property utterly insecure" and was a "flagrant violation of the spirit of the U.S. Constitution."
Walstreicher argues that the Constitution’s imprecision with regard to slavery (I don’t think t was imprecise at all, it was clearly pro-slavery) led to both sides being able to claim the Constitution was or was not in favor of slavery. Given that most of the founders owned slaves and considered them property, I don’t think Justice Taney really had much choice in deciding Dred Scott in the way he did.
The assumption that southern population would grow faster than that of the north proved illusory as most immigration went to the anti-slave, industrial north thus rendering the infamous three-fifths clause moot and soon the southern states were desperately trying to add slave states to the union to retain some measure of power.
Quote: Many historians insist that the use of the word “slavery” to refer to taxes or restrictions of liberty simply came to seem hypocritical in light of racial slavery. It certainly did eventually, but this emphasis neglects the more basic, original link of British rights to property, the fact that slaves were property, and that both slavery and property were intrinsic to what colonies were all about: agricultural production and trade. . . The Americans had emancipated themselves, but in doing so had raised, not resolved, the question of slavery. On both ides of the Atlantic, people waited to see what exactly Americans meant when they said they would never be slaves.
I also recommend Negro President: Jefferson and the Slave Power by Garry Wills
Wednesday, November 07, 2018
Birthright Citizenship
I suppose Trump has done us at least one favor and that's to make us more aware of the Constitution, not that he's ever read it or at least understood it. His shoot-from-the-hip attitude reflects what Rogers Stone noted about "people involved in immediate decision making are very dependent on the universe of ideas around them. They reach for ideas thinking they're going to be useful for them." In other words, original thought is rare among politicians.
Trey Popp, in his profile about Rogers Stone and the Birthright controversy*, also quotes John Maynard Keynes: "Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back."
Stone, now a self-described far left liberal, educated at Harvard and now teaching at Penn, started out in college a supporter of Goldwater but who was repelled by his experience with Republican back-room legislators where he worked as a clerk and page in Springfield, Illinois. They would indulge in drinking and scurrilous racial epithets and teach how to play dirty tricks on their political opponents. "That's when I began to freak out."
He became intrigued by the debate over the nature of government: Locke v civic republicanism, and he started exploring how "citizenship had been characterized in federal statutes." Instead of finding an uplifting vision of citizenship, he discovered that "American law had long been shot through with second-class citizenship, denying personal liberties and opportunities for political participation to most of the adult population based on race, ethnicity, gender, and even religion."
" 'Against liberal and democratic republican views describing citizenship as a human creation that ought to rest on the consent of all involved,' they assigned (or withheld) political rights on the basis of inalterable characteristics like race, gender, and the religion into which people were born."
Stone began to see consent as the key Lockean sine qua non of a political society and that the existing community should also give its consent. That duality creates an inate tension reflected in the Dred Scott decision in which Taney argued blacks could never be citizens because they did not have the consent of those states who were party to the Constitution. The 14th Amendment was designed to rectify that deficiency.
The phrase causing current disputation is "subject to the jurisdiction of." It was impossible to know what the authors of that section thought of an unauthorized immigrant since immigration was not even regulated until 1875, a decade after ratification of the 14th. The record was clear however with regard to two other groups: Native Americans (for tribe sovereignty and treaty reasons) and the children of foreign diplomats from whom citizenship was withheld. (That issue for Native Americans was rectified in 1924 with the Snyder Act.) During debates some legislators feared that citizenship would be conveyed to races they didn't like, including "Chinese, Mongols, and Gypsies."
The question presented so viciously by Trump but thoughtfully by Stone is what about those whose presence "contravenes American law." Is confirmation of citizenship on those here without permission incompatible with democratic institutions? Note that United States v Wong Kim Ark, the decision in 1898 that overturned a law preventing Chinese immigrants from becoming citizens applied to people who had consent to be here.
Ironically, Stone believes that we need higher levels of immigration and that the children of undocumented aliens deserve "access to citizenship." But, and a big but, Stone argues that Congress needs to be the arbiter of who qualifies for that citizenship be it birthright or otherwise. (Trump's suggestion he could do it with executive order is just another example of his ignorance.)
Unfortunately, to Stone's dismay, his ideas put forth with his coauthor Schuck in 1985, Citizenship Without Consent, were adopted in 1993 by California Republican Elton Gallegly who introduced a bill and amendment in Congress that would restrict "birthright citizenship to the children of mothers (but not the fathers) with citizen or legal-resident status." Similar bills have been introduced in every session since. It would seem to me that their failure each time would indicate some form of consent for the current situation.
Smith is not happy. As with most things, unintended consequences often mar otherwise good intentions. "The [Stone's] argument was used more persistently and prominently by nativist political forces than I ever anticipated. And that has been a shadow over my work in life."
In the end, Stone says, “What you want,” he says, “is to have as democratic a process of defining people-hood as possible, and to push within that democratic politics to make the choices as inclusive and egalitarian as possible, so that that definition of who we the people are may expand over time—but expand in a way that is sustainable because people have agreed to it, and it hasn’t been imposed on them.” The word "imposed" in this context bothers me not a little. A structure that has been in place and interpreted in a particular way for more than one hundred years would hardly constituted an imposition but much more an acceptance.
Smith would seem to be of similar mind. "In a 2008 article in Penn’s Journal of Constitutional Law, Smith made a case that Congress had effectively expressed the electorate’s will regarding birthright citizenship; the repeated and conclusive failure of 15 (now 25) years’ worth of restrictionist bills amounted to a clear expression that Americans, through their elected representatives, have consented to reading the Fourteenth Amendment as guaranteeing birthright citizenship to children of all aliens born on American soil."** Here, here.
*Popp, Trey. "Who is America?" The Pennsylvania Gazette Nov/Dec 2018, pp 33-41. http://thepenngazette.com/who-is-america/#comment-7721
**https://scholarship.law.upenn.edu/jcl/vol11/iss5/6/
Trey Popp, in his profile about Rogers Stone and the Birthright controversy*, also quotes John Maynard Keynes: "Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back."
Stone, now a self-described far left liberal, educated at Harvard and now teaching at Penn, started out in college a supporter of Goldwater but who was repelled by his experience with Republican back-room legislators where he worked as a clerk and page in Springfield, Illinois. They would indulge in drinking and scurrilous racial epithets and teach how to play dirty tricks on their political opponents. "That's when I began to freak out."
He became intrigued by the debate over the nature of government: Locke v civic republicanism, and he started exploring how "citizenship had been characterized in federal statutes." Instead of finding an uplifting vision of citizenship, he discovered that "American law had long been shot through with second-class citizenship, denying personal liberties and opportunities for political participation to most of the adult population based on race, ethnicity, gender, and even religion."
" 'Against liberal and democratic republican views describing citizenship as a human creation that ought to rest on the consent of all involved,' they assigned (or withheld) political rights on the basis of inalterable characteristics like race, gender, and the religion into which people were born."
Stone began to see consent as the key Lockean sine qua non of a political society and that the existing community should also give its consent. That duality creates an inate tension reflected in the Dred Scott decision in which Taney argued blacks could never be citizens because they did not have the consent of those states who were party to the Constitution. The 14th Amendment was designed to rectify that deficiency.
The phrase causing current disputation is "subject to the jurisdiction of." It was impossible to know what the authors of that section thought of an unauthorized immigrant since immigration was not even regulated until 1875, a decade after ratification of the 14th. The record was clear however with regard to two other groups: Native Americans (for tribe sovereignty and treaty reasons) and the children of foreign diplomats from whom citizenship was withheld. (That issue for Native Americans was rectified in 1924 with the Snyder Act.) During debates some legislators feared that citizenship would be conveyed to races they didn't like, including "Chinese, Mongols, and Gypsies."
The question presented so viciously by Trump but thoughtfully by Stone is what about those whose presence "contravenes American law." Is confirmation of citizenship on those here without permission incompatible with democratic institutions? Note that United States v Wong Kim Ark, the decision in 1898 that overturned a law preventing Chinese immigrants from becoming citizens applied to people who had consent to be here.
Ironically, Stone believes that we need higher levels of immigration and that the children of undocumented aliens deserve "access to citizenship." But, and a big but, Stone argues that Congress needs to be the arbiter of who qualifies for that citizenship be it birthright or otherwise. (Trump's suggestion he could do it with executive order is just another example of his ignorance.)
Unfortunately, to Stone's dismay, his ideas put forth with his coauthor Schuck in 1985, Citizenship Without Consent, were adopted in 1993 by California Republican Elton Gallegly who introduced a bill and amendment in Congress that would restrict "birthright citizenship to the children of mothers (but not the fathers) with citizen or legal-resident status." Similar bills have been introduced in every session since. It would seem to me that their failure each time would indicate some form of consent for the current situation.
Smith is not happy. As with most things, unintended consequences often mar otherwise good intentions. "The [Stone's] argument was used more persistently and prominently by nativist political forces than I ever anticipated. And that has been a shadow over my work in life."
In the end, Stone says, “What you want,” he says, “is to have as democratic a process of defining people-hood as possible, and to push within that democratic politics to make the choices as inclusive and egalitarian as possible, so that that definition of who we the people are may expand over time—but expand in a way that is sustainable because people have agreed to it, and it hasn’t been imposed on them.” The word "imposed" in this context bothers me not a little. A structure that has been in place and interpreted in a particular way for more than one hundred years would hardly constituted an imposition but much more an acceptance.
Smith would seem to be of similar mind. "In a 2008 article in Penn’s Journal of Constitutional Law, Smith made a case that Congress had effectively expressed the electorate’s will regarding birthright citizenship; the repeated and conclusive failure of 15 (now 25) years’ worth of restrictionist bills amounted to a clear expression that Americans, through their elected representatives, have consented to reading the Fourteenth Amendment as guaranteeing birthright citizenship to children of all aliens born on American soil."** Here, here.
*Popp, Trey. "Who is America?" The Pennsylvania Gazette Nov/Dec 2018, pp 33-41. http://thepenngazette.com/who-is-america/#comment-7721
**https://scholarship.law.upenn.edu/jcl/vol11/iss5/6/
Sunday, November 04, 2018
Review: Tailspin: The People and Forces Behind America's Fifty-Year Fall–and Those Fighting to Reverse It by Steven Brill
This book should have been titled "Be Careful What You Wish For; You May Get It," or perhaps "Unforeseen and Unintended Consequences."
He begins with a litany of problems facing the United States: income inequality, the highest poverty rate among the industrialized nations, a crumbling infrastructure, an attitude of American "exceptionalism"with a Congress that hasn't been able to pass a budget in decades, ("Like slacker schoolchildren unable to produce a book report on time, the country’s elected leaders have fallen back instead on an endless string of last-minute deadline extensions and piecemeal appropriations.") which is ruled by the more than twenty lobbyists for each Congressman. He then proceeds to zoom in on a variety of events and institutions he regards as the cause of these failures.
Just a couple of examples. He discusses the rise of meritocracy, the intent being to support and encourage those with brains and talent. What happened was those folks succeeded brilliantly, went to the best Ivy League schools (Brill is really big on mentioning where individuals graduated from and I was hard pressed to discover anyone he mentioned who had come from anywhere but an Ivy League school except perhaps Bernard Baruch in New York, a special case) but then created themselves into a protected class. Brill divides the world into two classes: the protected and the unprotected. The protected build walls around themselves and their money that make it virtually impossible for those not in the class to join it.
Another example is what he calls the "greening" of free speech. He cites Citizens United as a terrible decision because, in part, it emphasized the "personhood" of corporations. Yet, his informative history of free speech and corporations shows how critical that linkage is. Very much a progressive initiative, PACS were formed by unions first in 1943 as a way to support FDR's reelection. Through the 1950s and 1960s there was far more political money in union PACs than in business-oriented PACs. The New York Times case and the Virginia Pharmacy decision (ironically supported by Ralph Nader's Public Interest group as a way to make drug prices available on advertising and to create competition -- support they were to rue in when Citizens United came down)
A law review article by Martin Redish, a progressive Democrat, in 1982 * was an argument for why free speech should be applied to corporations. That view began to become more and more popular in legal circles culminating in Citizens United.
I happen to support that decision. What people often forget is that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no." During the oral arguments before the Supreme Court, which I listened to, I was absolutely horrified, as were most of the justices, by the response of the Deputy Solicitor General, who, when asked if the government could prevent the publication of a book that expressed political advocacy. That was a huge mistake.
Stewart's argument played into the hands of Ted Olson, counsel for Citizens United. By taking an extreme position that could be seen as akin to throwing someone in jail for writing a book, or book-banning, Stewart went way down the slippery slope, making it more likely that a majority on the Court (Alito, Roberts, Kennedy, Scalia, and Thomas) will want to say something about the Constitution, and not merely decide, as I've suggested, that the video-on-demand delivery of the anti-Clinton movie simply is not covered by the McCain-Feingold statute.**
While I occasionally disagreed with Brill's interpretations of several events, it's certainly a provocative book that does provide some interesting examples of positive solutions.
*https://scholarship.law.upenn.edu/penn_law_review/vol130/iss3/2/
**https://www.americanbar.org/publications/preview_home/publiced_preview_QandACitizens/
He begins with a litany of problems facing the United States: income inequality, the highest poverty rate among the industrialized nations, a crumbling infrastructure, an attitude of American "exceptionalism"with a Congress that hasn't been able to pass a budget in decades, ("Like slacker schoolchildren unable to produce a book report on time, the country’s elected leaders have fallen back instead on an endless string of last-minute deadline extensions and piecemeal appropriations.") which is ruled by the more than twenty lobbyists for each Congressman. He then proceeds to zoom in on a variety of events and institutions he regards as the cause of these failures.
Just a couple of examples. He discusses the rise of meritocracy, the intent being to support and encourage those with brains and talent. What happened was those folks succeeded brilliantly, went to the best Ivy League schools (Brill is really big on mentioning where individuals graduated from and I was hard pressed to discover anyone he mentioned who had come from anywhere but an Ivy League school except perhaps Bernard Baruch in New York, a special case) but then created themselves into a protected class. Brill divides the world into two classes: the protected and the unprotected. The protected build walls around themselves and their money that make it virtually impossible for those not in the class to join it.
Another example is what he calls the "greening" of free speech. He cites Citizens United as a terrible decision because, in part, it emphasized the "personhood" of corporations. Yet, his informative history of free speech and corporations shows how critical that linkage is. Very much a progressive initiative, PACS were formed by unions first in 1943 as a way to support FDR's reelection. Through the 1950s and 1960s there was far more political money in union PACs than in business-oriented PACs. The New York Times case and the Virginia Pharmacy decision (ironically supported by Ralph Nader's Public Interest group as a way to make drug prices available on advertising and to create competition -- support they were to rue in when Citizens United came down)
A law review article by Martin Redish, a progressive Democrat, in 1982 * was an argument for why free speech should be applied to corporations. That view began to become more and more popular in legal circles culminating in Citizens United.
I happen to support that decision. What people often forget is that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no." During the oral arguments before the Supreme Court, which I listened to, I was absolutely horrified, as were most of the justices, by the response of the Deputy Solicitor General, who, when asked if the government could prevent the publication of a book that expressed political advocacy. That was a huge mistake.
Stewart's argument played into the hands of Ted Olson, counsel for Citizens United. By taking an extreme position that could be seen as akin to throwing someone in jail for writing a book, or book-banning, Stewart went way down the slippery slope, making it more likely that a majority on the Court (Alito, Roberts, Kennedy, Scalia, and Thomas) will want to say something about the Constitution, and not merely decide, as I've suggested, that the video-on-demand delivery of the anti-Clinton movie simply is not covered by the McCain-Feingold statute.**
While I occasionally disagreed with Brill's interpretations of several events, it's certainly a provocative book that does provide some interesting examples of positive solutions.
*https://scholarship.law.upenn.edu/penn_law_review/vol130/iss3/2/
**https://www.americanbar.org/publications/preview_home/publiced_preview_QandACitizens/
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