The Sham of Conservative Originalism

The Sham of Conservative Originalism April 7, 2014

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.

"Your argument is "Things exist, therefore God," and you just simply believe that there has ..."

And Yet Another Stupid Atheist Meme
"Oh hell. Just now got back here. Requiescat in pace, Ed, or just feed the ..."

Saying Goodbye for the Last Time
"So many religious comments from muslims and the atheist religion..."

Carson: Islam Not a Religion, but ..."

Browse Our Archives

error: Content is protected !!