Constitution Confusion

In last week’s New Yorker, Jeffrey Toobin complains about the Supreme Court’s recent tendency to declare laws that restrict campaign financing (e.g. in Citizens United) unconstitutional. He argues that unrestricted campaign contributions and expenditures, while they may seem to be an example of free “speech,” actually “stifle public debate.”

He tells us how bad it has become:

A surreal moment during the Arizona argument summed up how peculiar the Court’s campaign-finance jurisprudence has become. Springing a well-planned trap, Roberts told the lawyer defending the Arizona law, “I checked the Citizens Clean Elections Commission Web site this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?” To many ears, levelling the playing field hardly sounds like a sinister activity, worthy of the Supreme Court’s ultimate sanction.

Does this sound funny? Let’s try it on a different document. Imagine if someone had written this:

The Sharia Court judge ruled that, according to Sharia, Sally may not leave the house without wearing a headscarf. To many ears, leaving the house without wearing a headscarf hardly sounds like a sinister activity, worthy of the Sharia Court judge’s ultimate sanction.

Toobin, like the fictitious person who makes the above argument about Sharia, fails to draw the elementary distinction between whether an action is sinister, and whether it is proscribed by a document written hundreds of years ago. This would never fool us if we were talking about Sharia law, but apparently it fooled the editors of the New Yorker when in reference to the Constitution.

A rule of thumb I picked up at a young age is that, when tasked with critiquing someone’s interpretation of a document, I should make some reference to the content of the document. And if I wanted a good grade, I might consider including a quote. Here is Toobin writing for the New Yorker, nominally trying to critique the justices’ interpretation of the Constitution, and he makes no reference to the content of the Constitution. Instead, he distractingly tells us whether he believes a particular action allegedly proscribed in the constitution is “sinister.”