« Two Easy Cases?
Michael Ramsey
| Main | The Peculiarity of the Three-Fifths Rule
Mike Rappaport
»

10/16/2013

Larry Lessig Responds...
Michael Ramsey

... to Josh Blackman and me on McCutcheonOn “originalism” and the First Amendment (or alternatively, “please don’t throw me into the briar patch”).  It's an interesting and complicated post but I think this is the core of it:

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 Buckley offers, 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.

Professor Blackman replies here:  Originalists Applying Unoriginalist Precedents, concluding:

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. Washington)? 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.

My quick take on un(non?)originalist precedents: another approach is that generally they should be confined to their facts unless they rest on more general principles that are themselves fully entrenched.  At least, this is the approach I am trying out in my forthcoming article on the supremacy clause.  Applied to McCutcheon, this view would confine Buckley to its facts on the grounds that the anti-corruption principle isn't deeply entrenched, or clearly defined.  (But, per this post, I'm inclined to think that McCutcheon should be affirmed on the grounds that no one has shown that limiting contributions "abridges the freedom of speech" in eighteenth-century terms).