Religion & Law

I wrote, in an earlier post, that "an appropriate (and Perry-esque) conception of the judicial role, and the best understanding of the Constitution seem to me to be in happy alignment."  In response, Michael says:

That seeming makes sense if, but only if, the competing First Amendment position--the position of the four dissenting justices (Stevens, Ginsburg, Breyer, and Sotomayor) and Professor Fish--not to mention the Congress of the United States--is not merely a position Rick rejects but a position Rick concludes is unreasonable in the Thayerian sense:  a position no rational, well informed lawmaker of good faith could hold.  Rick concludes his post with "Nice when that happens!"  Yes indeed, nice when that happens.

I think, though, that this "seeming makes sense", even on Michael's terms, if -- as I discussed in this post -- the "unreasonable in the Thayerian sense" criterion does not apply in the context of government attempts to regulate the content of political expression and advocacy.  (I am happy to agree with Michael that a "rational, well informed lawmaker of good faith" could conclude that such attempts are consistent with a plausible understanding of the First Amendment.)  As I wrote in that earlier post:

There are some cases, [Michael] says, where the argument for Thayerian deference does not apply, that is, cases where closer judicial review "is likely, in the long run, to enhance the capacity of the citizenry either to deliberate about contested political . . . questions or otherwise to participate meaningfully in the political process."  These cases include cases involving regulations of the freedoms of "speech, press, and assembly." 

So, it seems to me that one can endorse Perry's modified Thayerian approach and still conclude (reasonably!) that the Court was correct in concluding that the restrictions invalidated in Citizens United were, in fact, unjustified efforts to protect incumbents from being challenged by citizens speaking through the corporate form.  (Such an application of Michael's theory seems to me at least as consistent with the theory's premises as is Michael's own conclusion that even a Thayerian Court should rule that the Constitution requires extending [-- because no reasonable legislator could in good faith think that it does not require extending -- ] the benefits of marriage to same-sex unions.) 

Now, that said, I'll say here what I say in my forthcoming Commonweal review:  Read Michael's book, and think about (i) the attractiveness of Michael's proposed standards for exercising judicial review in constitutional cases; and (ii) the applications of those proposed standards.  I don't want to wander too far from "Catholic legal theory" into Michael's and my shared interest in constitutional law and judicial review, so if Michael wants the last word, it's all his.