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07/25/2012

Jeffrey M. Shaman: Justice Scalia and the Misuse of History
Michael Ramsey

At the ACS Blog, Jeffrey M. Shaman (DePaul University College of Law): Justice Scalia and the Misuse of History -- especially notable for its mention of Nevada Commission on Ethics v. Carrigan, a 2011 decision

which [Professor Shaman says] saw the Court reaching the right result but for the wrong reasons. In Carrigan, the Court held that the First Amendment was not violated by a state ethics rule prohibiting public officials from voting on legislative matters with respect to which they have a conflict of interest. Justice Scalia’s opinion asserted that the ethics rule was constitutional because it had an historical pedigree; similar legislative recusal rules have existed since 1791 when the First Amendment was ratified and have been in place ever since.  Although this may be correct, in several other respects Justice Scalia misread the history of the First Amendment, apparently to suit his own purposes. Moreover, his reliance on the original understanding of the First Amendment as the controlling source of its meaning is an aberration from long-standing First Amendment jurisprudence.