Schuette on the First Amendment and Elections

April 22nd, 2014

In Schuette, Justice Kennedy drew a strong connection between the right of the people to change their laws, and the First Amendment.

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discus- sion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsi- ble, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.

 This line of reasoning may inform Justice Kennedy’s voting rights jurisprudence. Laws limiting the amount of money that can be spent on elections may “impede” the ability of the people “to have the requisite repose to discuss certain issues.”

Kennedy adds:

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a pub- lic campaign there will be those, on both sides, who seek to use racial division and discord to their own political ad- vantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the ques- tion here at issue is beyond the capacity of the voters to debate and then to determine.

Rancorous political debates does not empower the Courts to abrogate this First Amendment right.

Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

Perhaps, it is only corruption itself, that would warrant this judicial intrusion.