Let me preface this diary by saying that I am, in general, a huge fan of Yale's famous Constitutional scholar Akhil Reed Amar. His legal and Constitutional philosophies are closely in line with my own, and I find his measured, didactic style preferable to equally intelligent but more bombastic legal scholars (see: Dershowitz, Alan.) The hallmark of Amar's philosophy is that the view that the Constitution was ultimately written as a pragmatic document flexible enough to conform to changing times. Sure, I disagreed with his assertion that a right to privacy isn't implicit in the Bill of Rights, but given his support of recognition for privacy rights due their "normalization" in multiple state constitutions and statutes, that seemed mostly semantic.
But there was one issue that he was tragically misguided on, and it's time he admitted it.
Recently, Amar discussed the upcoming Supreme Court decision on healthcare. Amar, who has been an outspoken defender of the law and its Constitutionality, recently said this in an interview with Ezra Klein:
“I’ve only mispredicted one big Supreme Court case in the last 20 years,” he told me. “That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
I don't think any of us here at DKos disagree with that statement. While perhaps a bit melodramatic, I would guess that nearly all of us share a similar sentiment. But what's especially interesting is his reference to "money" corrupting the law, given
this piece he co-authored in 2002. In it, he argues that McCain-Feingold was unConstitutional due its restrictions on "free speech." Incidentally, this was the central reason that the 5-4 majority in Citizens United overturned the law.
Now try as I might, I was unable to find anything Amar has written specifically about the Citizens United case, so maybe he has renounced his previous position. But if he hasn't, it's past time for him to admit that corporations attempting to manipulate the outcome of election by drowning out opposing voices will only lead to further corruption.
Now, you may not think that the two are related. After all, Citizens United pertained to corporate spending on elections, not challenges to current law. If that's your thought process, I'll leave with one final quote from Amar (this one from an earlier interview with Klein):
EK: A year ago, few legal scholars gave this case a serious chance of succeeding. Now the odds have dramatically shifted. What happened?
ARA: I would say it has been a normalizing process. In the media, and in conservative district courts, the illusion has been created that half the professoriate is with Randy Barnett and half is against him. That’s not the case:. But yesterday was profoundly disheartening. Until yesterday, almost no top constitutional law scholar was saying anything like this. Smart conservatives on the lower courts, like Jeff Sutton and Larry Silberman and Brett Kavanaugh, were saying, what are you talking about? But there has been this normalization process.
Huh. It's almost like unrestrained moneyed interests are prone to fucking with democracy.