Academic journal article William and Mary Law Review

When Are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question

Academic journal article William and Mary Law Review

When Are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question

Article excerpt

Table of Contents  INTRODUCTION I. RIGHTS ABSOLUTISM, PAST AND PRESENT     A. The First Generation: Black and Meiklejohn     B. Dworkin's Rights as Trumps        1. Dworkin I           a. Is a "Higher Trump" Conceptually Consistent              with Dworkin's Framework?           b. What Qualifies as a Dworkinian "Higher Trump"?        2. Dworkin II     C. Three Arguments Against Rights Absolutism        1. Inter-Rights Conflicts: Rights Absolutism Wrongly           Presumes that Rights Cannot Conflict        2. Right-Interest Conflicts: Rights Absolutism Wrongly           Presumes that Rights Should Categorically Trump           Non-Rights Interests        3. Widespread Practice II. TWO ALTERNATIVES TO RIGHTS ABSOLUTISM     A. Hybrid Absolutism: Rawls's Political Liberalism        1. Three Types of Liberty .        2. Conflicts, and Rights Non-Absolutism, Among the           Basic Liberties        3. Does Rawls's Hybrid Overcome the Deficiencies of           Rights Absolutism?     B. Pure Rights Non-Absolutism        1. Rights as Shields        2. Rights as Devaluers of Non-Rights Considerations.        3. Rights as Principles           a. Are Rights Principles?           b. Decision-Making with Principles        4. Rights as Values, the Building Blocks of           Constitutional Culture           a. Adaptation and Growth           b. Constituting Public Culture        5. Rights as Heuristics III. THE SUFFICIENCY QUESTION      A. Intra-Right and Inter-Rights Conflicts      B. Right-Interest Conflicts . IV.  TOWARDS A SUFFICIENCY METHODOLOGY V.   MCCUTCHEON REVISITED 


In McCutcheon v. Federal Election Commission (FEC), the Supreme Court struck down the aggregate limits provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), which capped the total amount of money a donor was permitted to contribute to all candidates and political committees during a single election cycle. (1) Chief Justice Roberts's four-Justice plurality opinion concluded that the provision ran afoul of free speech, because it violated the "right to participate in democracy through political contributions." (2)

Why precisely was the law unconstitutional? Not simply because the law restricted political contributions; the plurality acknowledged the right to participate through contributions "is not absolute," and that other cases had upheld contribution restrictions. (3) Rather, the plurality concluded the law did not further the only legitimate purpose--prevention of quid pro quo' corruption or its appearance" (4)--they thought could justify restricting the First Amendment right. (5) The four dissenting Justices thought a broader range of governmental goals could justify such restrictions--including "maintaining the integrity of our public governmental institutions" (6)--and that the BCRA's aggregate limits advanced that interest. (7) Justice Thomas, writing in a separate concurrence, agreed that the First Amendment right implicated by the BCRA was not absolute, but thought it properly subject to strict scrutiny. (8)

In short, all nine Justices agreed the constitutional right at issue was not absolute, but disagreed as to what purposes might justify the right's limitation. This Article asks a basic general question: What criteria appropriately determine what qualifies as a sufficiently important reason to limit a constitutional right? Call this the "Sufficiency Question."

The Sufficiency Question is not limited to the First Amendment, but applies generally insofar as virtually no constitutional rights are absolute under contemporary doctrine. For instance, most fundamental constitutional rights are protected by strict scrutiny and can be regulated to achieve a "compelling governmental interest." (9) Many constitutional rights can be regulated for even less pressing reasons--indeed, the McCutcheon plurality applied something less than strict scrutiny, demanding only a "sufficiently important interest. …

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