Masterpiece Cakeshop v. Colorado Civil Rights Commission is a hard First Amendment case on which reasonable people can differ.
Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.
My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.
The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.
In the New York Times, Linda Greenhouse defends nonoriginalism by attacking a straw man of originalism. This is par for the course, and Mike Ramsey does a great job of showing that Greenhouse’s understanding of originalism is pretty deficient. Public meaning originalists focus on the words in the Constitution, not on the speculative intentions of what the framers of the law might have expected or hoped. Even intentionalists focus on the intended meaning of the terms and they place significant weight on the ordinary meanings.
But there is more going on here than a simple misunderstanding of originalism. There is also a misunderstanding of the reasons for originalism. Here is the most important point: Originalism is not about advocating a dead constitution or opposing constitutional change. It is about how constitutional change should occur. Constitutional change should occur through the amendment process where it can be enacted through a genuine consensus of the nation rather than through the political judgments of a majority of the Supreme Court.
Second, Greenhouse’s argument assumes that the dynamic understanding of the Constitution will lead to good results. Her example of allowing women to be judges is the example upon which she focuses — one that everyone today agrees with. But what would Greenhouse do if the results are not good ones, according to her lights? Greenhouse normally gets very upset if the Court does not adopt some nonoriginalist change that she favors. If the Court seeks to reverse a previous nonoriginalist change in favor of the original meaning, my memory is that she gets even more upset. But imagine what she would do if the Supreme Court attempted to depart from a provision of the original meaning that she favored – say, if the Court concluded that children born to illegal aliens in the United States were not entitled to be deemed citizens, because of changed circumstances.