The Supremacy Clause. It’s a Thing.

Today, in two paragraphs, the U.S. Supreme Court rejected a challenge by the state of Montana to blithely ignore the Court’s holding in Citizens United. For centuries, from Marbury v. Madison to this case, the Supreme Court has consistently held that its interpretation of the Constitution is supreme and final over state courts. After all, the United States Constitution is the ‘supreme Law of the land’, and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” U.S. CONST., Art. VI, Sec. 2; Marbury v. Madison, 1 Cranch 137, 177 (1803).

Since 1925, the Supreme Court has held that the First Amendment’s free speech clause applies to the states by the Fourteenth Amendment. Gitlow v. People of the State of New York, 268 U.S. 652, 666 (1925)

“It follows that the interpretation of the Fourteenth Amendment enunciated by this Court…is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” Cooper v. Aaron, 38 U.S. 1, 17 (1958) (citing U.S. CONST., Art. VI, Sec. 2).

Therefore it came as no surprise to us here at CCP when the Supreme Court handed down a per curiam decision, which read, in relevant part: “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does.” The Court then cited the Supremacy Clause of the Constitution.

It is disappointing to see that four of the Court’s justices, following the lead of Stephen Breyer, decided to throw their hats behind a need to reconsider “the Court’s supposition that independent expenditures do not corrupt or appear to do so” based on a highly selective, misleading history of money and politics in Montana. Montana came before the Court, armed with facts about Gilded Age corruption, and ignored all the advances (such as, say, antitrust law) that would prevent copper titans from owning the state. We expected a more rigorous analysis of Montana’s claims in their petition for cert, the sort of healthy skepticism of partisan facts that true justice demands.

However, today, free speech and the concept of the Constitution’s status as the supreme law of the land prevailed. The First Amendment means the same thing in Montana as it does everywhere else in the country: people, no matter their associative status, may speak freely about politics.

Perhaps the great liberal icon William O. Douglas said it best, more than 50 years ago: “Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group – labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.”




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