[EL] Citizens United as precedent

[Paul Lehto]

On Wed, Dec 7, 2011 at 12:49 AM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> The right to vote is probably not a good marker for those who have the
> right to engage in political advocacy. ****
>
>
>
Actually the right to vote is a good marker for those who have the right to
engage in political advocacy..

Political legitimacy is based on the consent of the governed.  The
"governed" means all adults residing within the jurisdiction, excepting
those with no substantial attachment (tourists, transient people, aliens in
most cases).   As to minors, parents "govern" children until the age of
majority (18) at which point they are adults and can register to vote as
well.

The single meaningful exception is the variable practices from state to
state of disfranchising certain felons, which happens broadly in some
states and not at all in a few states.  Felons are certainly "governed" at
an above-average level.  Thomas Paine had it right - and he's justly called
the "architect" of the American Revolution:  Universal suffrage with no
disfranchisement for any reason except for taking away or attempting to
take away the right to vote of others, and even then the disfranchisement
should only be for a limited time, wrote Paine.

If democracy continues on its historical trajectory as it approaches true
universal suffrage, if we remain true to the principle that political
legitimacy rests on the consent of the governed, ultimately felon
disfranchisement laws will have to go.  Limitations on the ability of
minors and infants to vote will remain, perhaps at 18 or a slightly
different age -- whatever age matches their legal emancipation from their
parents in the usual case.

All in all, the ultimate "association" for First Amendment purposes is "We
the People".  Most of the history of the United States is a debate on what
exactly "we" means in "We the People."  Does it include women? Slaves?
Freed slaves?  African-Americans?  Immigrants? Felons?   The trajectory of
history has been steadily toward universal adult suffrage, with minor but
significant retrenchments only in the areas of refusing immigrants' votes
(who often were enticed to settle in frontier states in part with the
promise of the vote), and by increasing disfranchisement of felons,
something that basically only started after the Civil War for the most
part, and has picked up the pace in recent years.

A violation of a core principle like the consent of the governed is not
evidence that the principle of the consent of the governed is invalid.
Valuable rights, like voting, are subject to theft under color of law like
most anything else of value is.   *Neither slavery nor disfranchisement
ought to define the essence of the American political dream of democracy
and justice, they are instead best seen as exceptions in the long-term
project of American History to "make democracy [progressively more] real."
*
Those adults who can vote (if they wish) or those adults who ought to be
allowed to vote because they are clearly among "the governed," is a very
close approximation of the association often known as We the People, and
therefore of those whose consent, via voting, is necessary to political
legitimacy.   Consequently, this same class of humans is a very close
approximation of who has the right and standing to engage in political
advocacy, for all the same reasons (and more) why political parties have
the right to exclude non-members from participating in, or interfering
with, their political party processes.

Paul Lehto, J.D.
-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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