Last week I noted the possible significance of an American court case in the context of international law. I hope readers will indulge me, but I’d like to dwell on yet another slice of American jurisprudence. As with last week’s example, I think it holds interesting ideas about concepts of law- in this case, what law should be geared towards.
The case in question is Citizens United v FEC in which the Supreme Court explored whether corporations should have an unlimited right to engage in the political process within the framework of the first amendment of the US Constitution (the right to free speech).
There were a lot of related questions stemming from this case- should corporations have the same free speech protections as ordinary persons- but the court was dealing with whether corporations should be restricted in any way when it comes to campaigning for politicians running for office. The Court ruled that previous restrictions in this context were unconstitutional.
Interesting stuff, if you have any sort of inclination for legal affairs whether local or global. What really caught my attention was the spin put on the case by the American blogger and journalist Glenn Greenwald.
He cut through the intellectual thicket of the case and saw it as something quite basic and yet very profound: how legislation should be interpreted by the courts.
Greenwald saw the case as posing the question: should judges interpret the law by focusing on the practical outcome of the case (i.e. whether it will have a ‘good’ or a ‘bad’ impact on society) or whether they should interpret the law to give effect to its literal meaning.
It’s the difference between whether laws or cases should be interpreted in terms of their desirability to wider society or whether they should be judged only on constitutional grounds. You can take this ‘outcome rule’ and apply it to any given legislation.
I thought Greenwald’s point was a very interesting one: knowing the law is one thing, but how to interpret it is quite another.
As Greenwald points out, the FEC ruling is likely to have negative effects on the electoral process because corporations can effectively hijack elections by making unlimited donations and thereby buying influence with the candidate.
Greenwald thinks this approach is flawed. As he writes, “The rule of law means we apply it in ways that produce outcomes we like and outcomes we don’t like”.
So despite noting the obvious practical-and even moral-dangers of the court ruling, Greenwald agrees with it. His reasoning is that if corporations are legal persons, then the courts are correct to extend full free-speech rights to them.
People still find it bizarre that corporations are considered legal persons because this involves creating a fiction that a commercial entity can be treated like a human being.
But once you accept this fiction, then it is tempting to think Greenwald is right: corporations should have all the constitutional protections that human beings have.
But although this approach has its merits, I found myself disagreeing with Greenwald’s cold realism.
Even if courts should always give weight to the constitutionality of legislation and any other rules, these cannot be made in a vacuum. I think it is important for courts to also have regard for the impact of their judgements and whether they will achieve desirable outcomes.
Of course such things can often be subjective, but those are the kind of issues the judiciary should be grappling with. A value-free interpretation of law risks undermining its very purpose.
Minega Isibo is a lawyer