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Seth Barrett Tillman


Larry Lessig on the McCutcheon Oral Argument
Michael Ramsey

Via Josh Blackman, Larry Lessig has a post at The Atlantic complaining that the Solicitor General, arguing the McCutcheon v. FEC, didn't use Lessig's "originalist" argument in support of the law:  Obama's Lawyer Should Have Used Originalism to Sway Originalist Justices.  From the conclusion:

Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts's Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.

Really?  Five originalists on the Court?

Professor Blackman has more here: Solicitor General Verrilli Criticized (Again) For Not Making Originalist Argument, noting:

This is somewhat a replay of the dynamics in NFIB v. Sebelius, where prominent academics were upset that the Solicitor General did not rely on originalist-esque argument that in the early years of the Republic, the Congress mandated that militiamen purchase rifles. This was used as historical evidence to justify the individual mandate.

My sense is that Verrilli is correctly perceiving that these are not good originalist arguments.  Indeed, I'm surprised that Lessig in his post seems to think his argument would appeal to originalist Justices (however many of them there may be).  To me, it seems more targeted at non-originalist Justices who are looking for some vaguely founding-era cover.

(Also, I like the phrase "originalist-esque").

UPDATE:  Michael Stern suggests "originalisty". 

I suppose then the noun form would be "originalistiness"

RELATED:  I am reminded that Seth Barrett Tillman has a series of articles criticizing the "corruption" argument from an originalist perspective, in an exchange with Professor Zephyr Teachout:

Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); 107 Nw. U. L. Rev. Colloquy 1 (2012), available at http://ssrn.com/abstract=2012800 

Zephyr Teachout, Rebuttal, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012), available at http://www.law.northwestern.edu/lawreview/colloquy/2012/9/

Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013), available at http://ssrn.com/abstract=2012803