In this hypothetical, you are a U.S. Supreme Court justice faced with a decision on Citizens United v. F.E.C. How would you rule? The important thing here isn’t your ultimate verdict, for or against Citizens United, but how you would approach the legal question(s). What would guide you? What would your jurisprudential philosophy be? What principles would you hold to to guide you in interpreting the U.S. Constitution and, in particular here, its first amendment?
Presumably, your answer would help us predict how you might decide in future cases, as well, so your choice is more than fad or fashion. It should be about how you would go about making the difficult choices in matters of law.
- Originalism (the Constitution is dead, not “living.” What did the founders intend?)
- Absolutism (if it says “no law,” it means no law. Period.)
- Utilitarianism (a means to an end, so judge the end)
- Balancing theory (and preferred position balancing theory) >> scroll down to the entry on preferred position
- Meiklejohnian theory, from Alexander Meiklejohn, that advocates free expression is essential to accomplishing a greater good, which is democracy. A form of utilitarianism, arguing that the First is valuable in promoting self-government through “the voting of wise decisions.”
- The priority of “the marketplace of ideas,” or that a free trade in ideas will ensure the emergence and acceptance of truth as it competes with untruth. Our hero Oliver Wendell Holmes gave this idea great currency.
That we can ask this question and potentially have so many “right” answers points to Habermas’s statement that the law exists between facts and norms, and that it is more important for the law to claim validity than either facticity or its practice as a social norm.
I eagerly await your answers to see who on the current USSC (.pdf download of justices’ bios) are your kissing cousins (at least ideologically).