Originalists Applying Unoriginalist Precedents

October 15th, 2013

Larry Lessig graciously responds to my latest post, and I think his comments clarify our disconnect. My objection was that using 18th century history to define a term (“corruption”) in an unoriginalist opinion (Buckley) was not originalism. Larry seems to agree here, but explains why the history is relevant:

It’s certainly true that Buckley isn’t an originalist opinion. But my question is how an originalist should apply the precedent s/he (ok, he) finds.

The most conservative (small c) approach would be to embrace the test Buckleyoffers, but interpret its scope according to the values the Framers would have brought to the question. That’s what I did, and I’ll note that I’ve not yet seen an argument refuting the conclusion that I and Teachout and Brugman and others have advanced: That they were at least as focused on what I’ve called institutional corruption as upon the individual corruptions of a quid pro quo.

That is a perfectly plausible theory, but not one that focuses on original meaning or intent. Instead it considers the “values the Framers had.” That is a really open-ended theory, that goes even beyond “text, history, and structure.” It would not find much refuge in contemporary originalist scholarship.

Lessig continues:

Of course, ala Crawford, it’s perfectly possible for an originalist to reject the who[le] Buckley framework, and return to the question of how the Framers would have applied “abridging the freedom of speech” to the corruption regulations at issue in McCutcheon.

I agree about Crawford. This would be the only originalist way that the CAC brief makes a dent–recognize that Buckley was not consistent with the original meaning of the First Amendment, and replace it with a historical version. But the brief specifically does not ask the Court to do that.

Lessig’s post raises the broader issue of how originalist judges should apply unoriginalist precedents.  I’ve previously written that originalism works best when it is in open fields, rather than in the thicket (which campaign finance law most certainly is).

Should judges attempt to imbue in these unoriginalist precedents meaning from the 18th Century, or apply those precedents faithfully as drafted in the 20th Century? Or, should an originalist overturn those unoriginalist precedents (like Justice Scalia did in Crawford v. Washignton)? I don’t know how I feel about the former, because it suffers from many of the deficiencies inherent in applying “originalism” without any methodology.

Update: Mike Ramsey comments at the Originalism Blog.