In certain U.S. political circles, it is common to hear that the U.S. Constitution says what Anthony M. Kennedy wants it to say. And not without reason. In recent years, this U.S. Supreme Court justice, appointed by Ronald Reagan in 1988, has had the constitutional frying pan by the handle in dozens of cases, and his vote has decided the conservative or liberal triumph in several transcendental rulings. His opinions have been decisive in court rulings on such hotly debated and thorny issues as Guantanamo, abortion, gun ownership, the death penalty and gay rights. The revered principle of the rule of law in the United States has become the rule of Kennedy, who sails at ease among the supreme robes.

Last week Anthony M. Kennedy returned to speaker for a ruling as controversial as it was historic: Citizens United v. Federal Election Commission, a case on political party financing. To obtain its approval, Kennedy allied himself with the most conservative justices: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Antonin Scalia, distancing himself, at least on this occasion, from his liberal colleagues: John Paul Stevens, Stephen Breyer, Ruth Ginsburg and the Latina Sonia Sotomayor. The legendary Stevens has passed invoice with a dissenting opinion of almost a hundred pages, which is not to be missed.

This judge considers that the judgment is contrary to judicial logic for being more focused on the interests of the majority than on the claims of the litigants. He also criticizes the ruling for developing constitutional theories from shallow legal issues, forgetting precedent, and imposing the reign of empiricism over absolutism, and rhetoric over reality. At almost 90 years of age, and with little left to lose, Stevens has really spoken his mind, regardless of compromises. Personally, I subscribe to many of his views.

It all began in January 2008, when Citizens United, a conservative-leaning nonprofit business , aired a wide-ranging documentary about then-Senator and primary candidate Hillary Clinton. The documentary, released in six theaters, continues to be available on DVD and online. The publishers decided to increase its distribution, through a video on demand system, which allowed viewers to watch the program at any time. The Federal Election Commission banned it on the basis of the so-called McCain-Feingold Act, a decision that was upheld by the U.S. District Court for the District of Columbia.

Once in the Supreme Court, some justices have used the case to thoroughly revise the jurisprudential doctrine on campaign finance to the point of overturning, as unconstitutional, two important precedents: one from 1990, which upheld restrictions on corporate expense to support or oppose political candidates, and another from 2003, which upheld some sections of the McCain-Feingold Act, limiting campaign spending by corporations and labor unions.

The reasoning of the court ruling is clear but, in my opinion, erroneous: under the First Amendment to the U.S. Constitution, the government cannot prohibit companies from using their funds to support certain candidates in election campaigns. Kennedy is blunt: when the government seeks to use all its power, including the criminal law, to prevent a person from obtaining information, this results in censorship, i.e. "thought control". And this is against the law because "the First Amendment confirms the freedom to think for ourselves".

Adopted on December 15, 1791, the First Amendment is one of the cornerstones of the American Constitutional Law . From the less than 50 words contained therein, the Supreme Court of the United States has been able to build a very rich doctrine guaranteeing fundamental civil liberties, especially the freedoms of religion, press, association and expression. This time, as if it were a magic wand, the aforementioned amendment has served to eliminate the barriers to free campaign financing, the greatest public spectacle in the United States, at least in recent years. Certain limitations remain in force, however, such as the prohibition for companies to donate directly to candidates.

The dissenting justices, with much common sense, have stated that allowing corporate money to flood the political market will generate a corrupt democracy. The ruling is a 180-degree jurisprudential shift Degrees, with important theoretical and practical consequences. The fact that companies spend millions of dollars to back their candidates is a social scandal, because if anything is priceless, it is the vote, the ultimate expression of freedom. But for many Americans, the dollar is ahead of democracy. Here is the argument: without the dollar there is no democracy because without the dollar there is no society. That is why the famous Roman aphorism that freedom is priceless (libertas res inestimabilis est) does not entirely fit with the American republican sensibility, which is more concerned with corporate freedom than with democracy itself. This is a cultural issue, and it must be accepted as such.

It is not surprising, therefore, that the sentence has been praised and applauded (I have seen it with my own eyes) by the most republican sectors as a triumph of freedom of expression. But this is not so. It is precisely freedom of expression that is mediatized by the millions of dollars that so many companies are willing to donate in order to participate in the distribution of the power pie, once the elections are won. Moreover, the possibilities of privatizing public power, turning it into a huge Texas ranch in the hands of a few speculators, increase exponentially.

Barack Obama has been quick to react by pointing out that this resolution further strengthens the interests of the powerful and Washington lobbyists, such as oil companies, insurance companies and banks, while undermining "so many ordinary citizens who make small contributions to support preferred candidates". In addition, he has directed his Administration to explore with congress the possibility of redoing the rules and regulations on campaign finance. Let's not forget that Obama surprised even the most seasoned campaign analysts with his ability to attract millions in small donations from his supporters.

The sentence contains very weak points: the first is its attempt to grant the same rights to individuals as to companies, without realizing that the subject legal personality of a business, especially when it comes to constitutional rights, is qualitatively different from that of natural persons. In this topic, analogy is possible, although I am less and less in favor of it. However, in no case is full equivalence feasible.

On the other hand, a sentence can never be issued in the name of freedom when it is the freedom of millions of citizens itself that will be restricted, cornered, subjected to strong and constant pressure from an unbridled and unscrupulous advertising . Finally, the sentence contradicts, as Stevens rightly points out, the so-called principle of judicial restraint, which requires judges not to overreach in the use of their powers Schools. And the fact is that the excessive exercise of judicial power by some supreme judges, on both sides, is a topic as real as it is painful. May our constitutional magistrates take good note of it grade !