The question for Fried is whether constitutional law needs to respond to “changed circumstances" — but isn't this the essence of living constitutionalism?
The National Constitutional Center has inaugurated a series of debates around the country on recent Supreme Court cases. Two weeks ago the proposition for dispute in Boston was: “Citizens United was wrongly decided.’ I took the negative side with Anthony Johnstone of Montana Law School in the affirmative. The Center recently posted the debate online.
The audience was decidedly hostile to Citizens United. The Center took a poll at the beginning of the debate. 76 percent of the audience were opposed and only 24 percent in favor. After the debate 65 percent were opposed and 35 percent in favor. I had persuaded some listeners, but not enough to turn the tide.
Why does Citizens United elicit such visceral hostility from most audiences? One reason goes back to the enduring American populism that led to opposition to the Bank of the United States. Many people feel that corporations represent concentrated power of the few against the interests of the many. But in fact the corporation has been a democratizing influence generally, allowing individuals to pool their resources. That was true in Citizens United itself, where individuals came together to disseminate a video against Hillary Clinton. The very rich do not need a corporate instrument to make their voices heard. Tom Steyer and the Koch Brothers spend millions of dollars on elections and need neither a corporation nor this Supreme Court decision to do so.
A second reason is the sense that corporations and politics should not mix, because corporations seek private profits, but politics is supposed to aim at the public good. Of course, the corporation at issue in Citizens United was a non-profit corporation. But there are other reasons that this widespread feeling is based on mistaken understandings. All sorts of groups pursue self-interest in politics besides corporations; a whole subarea of political science maps rent-seeking. Public choice suggests even more fundamentally that politics not less than the market is generated by interests, just working under different constraints—constraints that often lead to less social welfare than interests working through markets.
But the debate made me recognize again that public attitudes toward many Supreme Court cases are not shaped by reasoning from legal principle, but by emotional commitments that no amount of argument will change. One cannot have both a constitutionalism that is consistently popular and a constitution that operates as law.