With the Kagan hearings scheduled for this week, Al Franken's lack of understanding of the Constitution will be on full display. Prior to his asking Kagan a single question, Franken's lack of understanding or his willingness to ignore the Constitution are already on display, thanks in large part to State Rep. Ryan Winkler's op-ed:
Franken said in his speech that the Roberts court has a judicial-activist majority that does not respect precedent or defer to the people's elected leaders to make policy. He discussed the granddaddy of all corporate judicial-activist decisions: Citizens United vs. FEC. We have all heard about this case, the one in which the Roberts court overturned nearly 100 years of precedent on corporations' supposed free-speech rights, struck down restrictions on corporate political money and gave corporations new First Amendment protections that the vast majority of Americans oppose.
What Rep. Winkler obviously didn't consider is that the supposedly 100 years of precedent stood in opposition to the Constitution. It's obvious that Rep. Winkler hasn't figured out that the Constitution and the Bill of Rights trumps precedents.
The only thing that precedents mean is that SCOTUS has ruled on similar issues before. It doesn't guarantee that those rulings upheld the Constitution. If the current set of justices determine that the precedents reflect prior courts' policy preferences instead of the Constitution, it's their responsibility to correct prior court's mistakes.
These unaccountable, lifetime judges were making law in Citizens United. Franken pointed out that Roberts had promised Congress that he would be an umpire on the Supreme Court, calling balls and strikes, not making policy. Given the judicial activism practiced in Citizens United, Franken was right to question whether Roberts is a mere umpire.
First, Rep. Winkler's balls and strikes metaphor is a misstatement. Bloviating Joe Biden, in his 9-minute speech before he started asking then-Judge Roberts questions, used the balls and strikes analogy.
Second, the Roberts Court didn't make new law. It just reset things to what the Constitution called for. Here's what the First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Noticeably absent from the text of the First Amendment is mention that corporations didn't enjoy the same First Amendment rights as John Q. Public enjoys. Given the fact that the Founding Fathers clearly wanted to err on the side of more speech, not less, it isn't likely that they would've wanted to restrict anyone's or anything's ability to speak out on the political issues of the day.
Of all the foolish things Rep. Winkler said in his op-ed, this is easily the most foolish:
Contrary to Gerson's claim, Franken is no ideologue. He's telling the truth. It's just that Gerson, and the corporate interests he favors in his columns, don't like it.
Al Franken isn't an ideologue? What rock has Rep. Winkler been hiding under? Sen. Franken is nothing if not an ideologue. Here's proof that Sen. Franken is an ideologue:
- Republicans are shameless d**ks. No, that's not fair. Republican politicians are shameless d**ks.
- Minnesota Republican Norman Coleman is one of the administration's leading butt boys.
- I'm Al Franken. I hate you, and you hate me. How Franken said he introduced himself to Karl Rove, Newsweek, March 29, 2004
Do those sound like the things that an open-minded statesman would say? I didn't think so.
The next time Rep. Winkler writes an op-ed, he should reconsider. I've enjoyed fisking this factually-challenged missive. Fisks this easy don't happen that often.
Comments welcome at LFR.