CAC On “Bad Originalism.”

October 12th, 2013

Responding to Rick Hasen’s critique of the Lessig brief’s history, David Gans writes:

Originalism, properly understood and practiced, looks to the original meaning of key words and phrases to inform judicial decision makers of what these words meant at the time the Constitution was written.  While the term “corruption” appears in only one rather obscure part of the Constitution, it was a central motivating concern of the Framers, as explained most thoroughly in the work of Professor Zephyr Teachout.

I have argued before that CAC’s brief follows no know version of originalism. It doesn’t even fit David’s own definition of originalism. What “key word” or “phrase” does CAC’s history provide the “original meaning” to?

The answer is a phrase from a Burger Court opinion? CAC seems to acknowledge this here:

 Given that the modern Court has made corruption a central concept in its campaign finance jurisprudence, it makes perfect sense to examine that term, not in a vacuum, but in light of its original meaning, which is Professor Lessig’s great contribution to this debate.   His work is first-rate originalist scholarship, whether or not the Court’s conservative wing is swayed.

Why does this make sense? If we want to understand the original understanding of “corruption” we should look to how it was understood in the 1970s. Sure, it would be wonderful for the Burger Court to have been originalist, but they weren’t. And to the extent that CAC wants the Roberts Court to be originalist, then they would have to reverse the Burger-era precedents, and redefine campaign finance law around the corruption doctrine. But this is not what CAC is asking for (they say it is consistent with Citizens United). Under no conception of originalism should a case, or statute, or anything, drafted in the 1970s be imbued with meaning from two centuries earlier. It doesn’t make “perfect sense.” The term should be viewed in light of its original meaning–the meaning in the 1970s.

David goes on to relay why his history is accurate. But none of this explains why it makes any difference. It is accurate, but irrelevant, to quote my friend Ilya Shapiro.

By the way, citing a list-serve message from Sam Bagentos (not sure if those should be published without permission), David notes that the only mention of the word corruption is in the Article III treason clause. Interesting that the CAC brief doesn’t even mention the *only* mention of the word “corruption” in the Constitution (Article III appears nowhere in Table of Authorities). This one didn’t make the TUMBLR.

Update: I respond to an earlier statement of his originalist methodology here.