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Posted by on Jul 10, 2012 in Law | 16 comments

How The Law Is Supposed To Work

With the Supreme Court’s recent rulings on Arizona’s SB 1070 and the ACA, the Montana case challenging Citizens United got little coverage. The Montana Supreme Court decided 5-2 to ignore Citizens United and uphold a Montana statute restricting corporate expenditures in elections. Accusing the Montana Supreme Court of ignoring Citizens United may be hyperbole, but that’s effectively what they did.

The U. S. Supreme Court slapped down the Montana Supreme Court, but within this game of judicial ping pong one Justice stood out. No, not a Justice of the U. S. Supreme Court, but a Justice of the Montana Supreme Court. His name is Justice James C. Nelson (pictured above), and he understands something many others don’t get. How the law is supposed to work. Whether you agree with it or not, lower court judges are bound to follow precedent, not ignore it.

Justice Nelson was one of the two dissenters in Montana’s 5-2 decision. His reason was that he was obligated to follow Citizens United even though he disagrees with it. And, boy, does he disagree with it.

“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders,…

Justice Nelson also discussed the concept of corporate personhood:

“While I recognize that this doctrine is firmly entrenched in law, I find the concept entirely offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

This is a sampling of his scathing appraisal of Citizens United. But, in spite of his personal disgust with the U. S. Supreme Court’s decision and rationale, Justice Nelson did his job, broke with a majority of his own court and followed the precedent set down by the U. S. Supreme Court. His example is becoming increasingly rare.

The politicization and partisan bickering that have infected our courts have left us without our traditional understanding of how the law should work. While we are welcome to dislike a decision, it is the law. If we are to be a nation of “laws, not men” that law, even decisions with which we disagree, must command our respect. Think, if you will, how different Justice Nelson’s approach is to so many others who disagreed with recent Court decisions like the SB 1070 decision or the ACA decision or the Citizens United decision.

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