The Sham of Conservative Originalism

Larry Lessig, the Harvard law professor who has led a crusade for real campaign finance reform for several years, reacts to the Supreme Court’s ruling in McCutcheon by pointing out that the conservative justice’s claimed preference for originalism is contradicted by the ruling.

The essence of the ruling is that Congress only has the authority to regulate spending on campaigns to avoid corruption and that corruption is defined solely as an explicit quid pro quo. This startlingly naive position flies in the face of how the framers of the Constitution defined political corruption.

The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

So how is that framing usage relevant to the decision in McCutcheon?

The justices on the Court leading the charge to restrict the meaning of “corruption” to quid pro quo corruption alone are the conservatives. Those same conservatives—Justice Scalia and Justice Thomas most prominently, but Chief Justice Roberts as well—are also the justices who have told us again and again that the method they use to interpret the constitution is “originalism.” Read the Constitution, they have told us, not how we would read it, but how the Framers would have read it. That’s the only “principled,” as we’ve been lectured again and again, way to interpret the document. And on the basis of that method, the Court has struck down acts of Congress repeatedly, and likewise, upheld acts of Congress repeatedly. If the Framers would have done it, an originalist argues, then we should too.

But where is the originalism when it comes to the meaning of the word “corruption?” If the originalists on the Court believe the Framers would have permitted laws regulating the freedom of speech if those laws targeted “corruption,” why would an originalist use an understanding of the term from a 1976 per curiam opinion (Buckley v. Valeo) rather than an understanding of the Framers—corruption as in “improper dependence”—made manifest by the Framers again and again?

Because “improper dependence” is precisely the problem that limits on aggregate contributions are meant to attack. Already we have a system in which Congress is dependent upon the tiniest fraction of the 1% to fund its campaigns. I’ve estimated the number of relevant funders is no more than 150,000 (about the number of Americans named “Lester.”) If aggregate contribution limits are struck, that number will fall dramatically. More will be raised from a smaller number of contributors—maybe as few as 40,000 (about the number of Americans named “Sheldon”). So abolishing aggregate limits will move us from Lesterland to Sheldon City, increasing a dependence on the funders, while conflicting with Madison’s promise of a branch of government “dependent on the people alone.”

Conservative originalism has always been a sham, a pretense of objectivity where there is none. Justice Scalia, in particular, loves to lecture everyone on how his textualism and originalism are objective, as opposed to all those liberal justices who only care about the outcome of the case. That’s simply a lie. Scalia himself is absolutely an outcome-based judge; compare his opinion on the scope of the Interstate Commerce Clause in Raich to his opinion in the health care reform case from two years ago, that is all the proof you will need. There are lots and lots of ways to manipulate originalism to get the result you want, including picking and choosing which views of the founding fathers are the ones that matter.

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  • doublereed

    Could someone provide links or quotes to Scalia’s opinion in the ACA case and Raich? Not exactly sure where to look.

  • marcus

    doublereed @ 1 Sorry, not willing to look that far up Scalia’s ass, wherein most of his opinions originate.

  • A Masked Avenger

    Their “originalism” is precisely analogous to biblical fundamentalism: they claim allegiance to the document, in its true and original meaning, but they also dictate the interpretation of that true and original meaning. To maintain the fiction that they are obeying the Constitution/Bible, rather than bending it to fit their ends, they must be actively hostile to legitimate scholarship, because legitimate scholarship will undermine their interpretations and expose their distortions.

    There is of course a bit of a gray area, in that the Constitution (like the Bible) sanctioned things like slavery, so in some cases they don’t need to distort anything. So they can turn to those instances as a relief valve, and embrace legitimate scholarship whenever it agrees with them. That balances out the cognitive distortion of rejection scholarship, which they need to balance out the cognitive distortion of twisting the document they claim allegiance to.

    It’s possible there’s a direct connection between religious and political fundamentalism, but atheist Republicans share this trait. I’m inclined to view Bible-belt fundamentalism as a special case of a more general phenomenon, where strict adherence to an external authority (or ideal) is proclaimed, but in reality is co-opted to support an (often reactionary) agenda, with all the double-think that entails.

    It’s a risk outside religion, and outside the right. It may be inherent to institutions. I haven’t tried hard to analyze it, but it probably turns out that CFI and JREF exhibit this kind of thing in relation to sexual harassment. “We’re rational people–we’re the good guys. And good guys aren’t (among other things) sexual harassers. Therefore, this was a lover’s quarrel, and he was only joking, and beside b*tches be crazy…” Folks for whom feminism is seen as a value, but who aren’t really feminist, must claim to be feminist while reinterpreting feminism to mean whatever it is they actually are. That sort of thing.

  • Chiroptera

    “I think the Constituion should be interpreted according to the Framers’ original intent. And, wadyano, their original intent is exactly what I believe!”

  • tsig

    AMA, your comment interests me because I’m a regular at JREF and I have wondered at the huge blind spot they have about sexual harassment but when we see they have the mindset that “We are the good guys and good guys don’t do that”, then any evidence that they do do that must be discounted. They do it in the usual ways, shoot the messenger, derision and flat out denial.

  • velociraptor

    AMA @3

    Excellent analysis. I come to a similar conclusion a while back, but have never been able to articulate it as well as you just did. Thanks, and I hope you don’t mid if I steal some of your thoughts.

    To Ed’s point in the OP, I will merely say that every last one of today’s ‘Originalists’ would have been staunch Tories. Fuck them and their corrupt asses..

  • slatham

    How would/could an originalist end slavery?

  • Pierce R. Butler

    Probably somebody has beat me to this, but I propose from now on we call it the McCorruption decision.

  • matty1

    How would/could an originalist end slavery?

    My guess is they would say that originalism is only about interpreting the constitution in court. It doesn’t argue against actual amendments like that banning slavery.

  • nrdo

    @ A Masked Avenger

    I agree, it’s quite obvious adherence to originalism is quasi-religious and similarly irrational. At least religions claim that the framers of their unassailable ideas consulted with an omniscient being.

    I’m not sure what to make of the JREF’s issues. It may have been denial, as you say, or it may have been a desire to protect “skepticism” from embarrassment because a publicly know skeptic clearly did something wrong. This is where the problem of committing to ideas (“-isms”) becomes a problem.

  • So we’ve made it through the looking glass and Chief Justice Dumpty will tell us what the word corruption means.

  • How would/could an originalist end slavery?

    The Constitution does not explicitly guarantee the right to slavery. It did ban federal interference with the slave trade until 1808 and prevent free states from ignoring fugitive slave laws. But there was nothing to prevent a state from abolishing slavery, as many did. Nor is there any reason why the federal government could not have banned slavery outright (which is precisely what the slave states feared as they became outnumbered by free states).

    I imagine that today’s originalists would be happy to leave it up to the states and would probably engage in all manner of bogus interpretation to argue that the intent of the framers was to keep the federal government out of the issue.

  • At least religions claim that the framers of their unassailable ideas consulted with an omniscient being.

    Many wingnuts appear to believe that the Constitution was dictated to the Founders by Jesus himself. Others think it was directly inspired by the “Judeo-Christian” traditions of freedom (a religion and traditions that never existed).

    So to their minds, the Constitution has the imprimatur of the Almighty.

  • Michael Heath

    Ed writes:

    Conservative originalism has always been a sham, a pretense of objectivity where there is none.

    That’s true. But originalism is not a sham, and I think it is a laudable approach to interpret the Constitution. Not the only approach, where I know of no one that actually practices credible originalism alone, but certainly a valid approach.

    A good example of an excellent originalist opinion is Justice John Paul Stevens’ dissent in D.C. v. Heller. His research found convincing evidence that Congress’ development of the 2nd Amendment wasn’t to assert an individual right to own and bear arms that obligated the federal government to protect that right. That like it must for speech or religious freedom. Compare that to Justice Scalia’s majority opinion in that same ruling. Scalia found some people b back then wanted such a right numerated. So voila, the 2nd Amendment must be it!

  • gingerbaker

    “…Congress’ development of the 2nd Amendment wasn’t to assert an individual right to own and bear arms that obligated the federal government to protect that right”

    Yes, but was there any inkling that the right of the individual to own and bear would ever be under question? AFAIK, nobody back then took the position that the new American government would or should ever take away the right to own and carry for any reason.

    Everybody owned guns and used them against brigands, along the frontier, on the farm for protection. There were hostile Indians everywhere. Surely it would make sense for the FF’s to elucidate the only reason which they felt would be applicable in all and any cases and stand the test of time – that gun ownership would always be needed to be protected in order to prevent tyranny, war, or invasion. How could anyone argue against that – when the fledgling America had just fought against a tyrannical government?

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