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Few public figures have earned my respect more than former Supreme Court Associate Justice John Paul Stevens, a fellow Northwestern Law School graduate whom I trailed by fifteen years. Student of the dreadful Citizens United v. F. E. C. (2010) case know that Justice Stevens penned the eighty page dissenting opinion, his work properly dealing with a number of legally worthy criticisms of Justice John Roberts majority opinion. 

In the years that followed, citizen groups like Move to Amend and Public Citizen also argued legally that money is not speech and that corporations are not persons, and were thus not protected by First Amendment free speech claims. 

I suggest one more layer of argument, it dealing with something other than legal, or even political considerations. All knowledge has a form to it, the idea of forms growing from Plato's characters on the cave walls in The Phaedo. 

I submit that the original seven articles of the constitution and the Bill of Rights have distinct, and opposite, forms. The American constitutional structure, with its separation of powers, federalism, bi-cameralism, staggered elections, and its separation of personnel between the executive and legislative branches is made up of what philosophers call the analytic form. The highly centrifugal structure of those articles enforces an arms' length, contractual, form of interaction among our political institutions. They did not want the citizenry to aggregate in what they feared would result in a runaway democracy. 

The Bill of Rights is altogether different. From free speech, free press, the right to petition, and the right to associate all the way though to preventing spying soldiers in citizens' homes, the forbidding of unreasonable search and seizures and their revelations of whom citizens were corresponding with, to testifying against oneself and thus revealing political allies, to ensuring a speedy trial that would mitigate against revealing allies after a long stay in jail, to the forbidding of cruel and unusual punishments that might reveal an accomplice under torture, the Bill promotes aggregation. It is facilitative of democratic aggregation and is therefore of the synthetic, not analytic, form. 

Further, please note that the Seventh Amendment's protection of a jury's usually pro-debtor finding of a loan term's harshness directly responds to the denial of the right of a state government from impairing the Obligation of Contracts.The former is synthetic, the latter, analytic. 

What, then, of the nature of varieted contributions? Is not a contribution of, say, $100, inviting similar small contributions? That is synthetic. Is not the $100,000 contribution scornful of any aggregation with similar contributions? That position is analytic. Chief Justice John Roberts' opinion that a large (analytic) contribution should be protected by first amendment free speech language (synthetic) is diametrically wrong. The majority opinion in Citizens United does not consider, or even understand, the deepest nature of the constitutional forms. Unfortunately, neither did my fellow Northwestern Law graduate John Paul Stevens' dissent. Hopefully, these misunderstandings can now be corrected. 

 

Bill Kreml 
Delegate - South Carolina 

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  • published this page 2017-11-13 21:21:37 -0500