Justice Scalia - Not a Tribute

He may have been a decent guy but he represented a most unfortunate tendency that has plagued the law profession down through history.  He saw words as reality, not as imperfect tools we use to communicate about reality.

You and I go through our lives relying on context to interpret the meaning of words.  Not just the context of the word within the larger body of words, but the context from which the words sprang, and the context within which the words are to have meaning.  Generally the more we know about context the better we understand.

Justice Scalia publicly disdained context.  He was not going to go outside the words to determine meaning.  He loftily argued that in this way he would not impose his views on the words.  In reality ignoring context outside the words is the ultimate indulgence.  As we see from politicians daily, ignore context and with clever words you can obscure factual reality.  You can make the words mean what you emotionally want them to mean - be that to accomplish a particular goal, or just to make your job easy.  All you have to do is cultivate the ability to manipulate words and you don't have to spend lots of time investigating and understanding the world that provides context.

Our country is the worse for it.  

In the Citizens United case he ignored the context to give us a law - that government can't regulate corporate political contributions - that is corroding the foundations of our democracy.  It is a decision that could only be justified by ignoring context.

Modern corporations did not exist when the founding fathers drafted the constitution.  They developed generations later as something akin to an agreement between government and investors.  Government wants investors to take risks so government allows people to create a corporation in which they put money they want to invest.  The corporation is subject to regulations as the government sees fit.  As long as the entity obeys the rules government establishes the investors are shielded from losing any more than what they invested.  

Allowing corporations the privilege of limited liability can impose tremendous costs on real people.  We recently spent billions in taxpayer money bailing out big corporations because their limited liability meant their stupid activities were sending waves of huge economic losses rippling through the world economy while the corporate officers and owners went home to their massive estates and fabulous fortunes, insulated from responsibility for their folly.  

Justice Scalia found in the founding fathers words the intent to preclude the government from regulating political contributions by these corporations that did not then exist.  As a result corporations still have limited liability but governments ability to regulate what is deemed inappropriate behavior is severely limited. 

Fixing the problems caused by Citizens United will be really difficult.   As a legal matter we could abolish corporations - state governments could repeal all the laws under which corporations operate.  But corporations are so embedded in our financial system we can't just abolish them.  The economic upheaval would be disastrous. 

Perhaps state governments could make consent to regulation of political contributions a condition of doing business within their state.  But that would take years, perhaps decades, and make economic life for all very complicated.  This really is a national issue and should be dealt with at the Federal level.

At some point (I hope) some future Supreme Court may find a way to lead us out of this mess.  But it will be a mess - for many years, thanks to an agile legal mind that celebrated words over reality.