Today during oral arguments in Nevada Comm’n on Ethics v. Carrigan Justice Scalia sought to rely on history to establish the proposition that Congress, since the beginning of the Republic, has imposed various recusal rules, consistent with the First Amendment. He even cites a rule from the First Congress:

JUSTICE SCALIA: Mr. Elwood, for me at least we’ve — we’ve jumped way ahead. I’m not so much concerned about the vagueness as I am about the proposition that ethical rules adopted by legislatures for voting are subject to review by this Court or by any court under the First Amendment. This is the first case I’m aware of that we’ve ever had which makes such an allegation or — I’m not even aware of any other case in 220 years in Federal courts. And it’s certainly not because legislative rules have not been vague. The first Congress adopted a rule that, quote, “No member shall vote on any question in the event of which he is immediately and particularly interested.” I don’t consider that very precise. And the rules adopted by Thomas Jefferson for the Senate, “Where the private interests of a member are concerned in a bill or question, he is to withdraw.” “The private interests,” what does that mean? “And where such an interest has appeared, his voice is disallowed, even after a division.”

Now, that’s been around in our Congress forever, but our Constitution provides that — that the rules of the legislature are to be determined by Congress and not by this Court, and I am sure we would not, we would not review those rules. Now, is there a contradiction between leaving those rules to Congress and the First Amendment? Do you really think that -that the two are set in opposition to each other?

The only problem with that question is that the First Congress met from March 4, 1789-March 3, 1791. The First Amendment was ratified on December 15, 1791. Under no set of circumstances would the First Congress, and the rule it passed, have been bound by an unratified amendment.

Now certainly members of the First Congress, James Madison among others, would have had a good idea what the First Amendment mean.t But it’s not technically accurate.

Justice Breyer made the same faux pas during oral arguments in Arizona Christian School Tuition Organization v. Winn. He made a remark about how the First Congress would have acted under the First Amendment:

JUSTICE BREYER: If you go back into history, it could have been the case that the — as long as they were fair to every religion, the first Congress could have funded prayers throughout the nation in churches for anyone to go and pray and that would not have violated the Establishment Clause, or if it had, nobody could have challenged it.