Posted by: captainfalcon | January 27, 2010

Originalist Sin

Earlier, MM alluded to Citizens United without explaining it. I’m going to discuss it at marginally greater length.

Citizens United struck down Section 203 of the Bipartisan Campaign Reform Act as incompatible with the First Amendment. Michael Dorf gives a nice synopsis of the majority’s (read: Justice Kennedy’s) main rationale for its holding here:

Section 203 of the Bipartisan Campaign Reform Act (BCRA), commonly known as “McCain-Feingold,” forbids corporations and unions from using their general treasury funds for “electioneering communications,” a term of art that is defined in the Act and the Court’s prior cases to cover advocacy by broadcast, cable, or satellite communication for or against a candidate for federal office in the period leading up to an election [specifically, thirty days before a primary and sixty days before a general election – MP].


Although much of the discussion in the lengthy opinions in Citizens United focused on procedural issues, the core of the majority decision proceeded by the following, relatively straightforward steps: (1) BCRA § 203 should be treated as a ban on a form of political speech by corporations and unions, even though they are permitted to form separate political action committees (PACs) to engage in electioneering communications, because the requirements for forming and speaking through a PAC are onerous; (2) As a ban on political speech, BCRA § 203 must be measured by the demanding standard of strict judicial scrutiny, which requires that it both serve a compelling interest and be the least speech-restrictive means of furthering that interest; and (3) None of the interests that have been advanced in support of BCRA § 203 satisfies that test.

Because the Court overruled one of its own precedents (Austin v. Michigan Chamber of Commerce), I think Dorf should have added a fourth step (4) Austin satisfied all the criteria a Supreme Court precedent must satisfy to be overruled ((very) wrongly decided, no “reliance issues,” etc.).

I remain undecided whether this rationale for the majority’s holding is sound, and I’m not going to try to muddle to a decision in this post. Instead, I’m going to focus on a second rationale for the unconstitutionality of BCRA § 203 that Kennedy (perfunctorily) articulated. This argument says that (a) the First Amendment as originally understood is incompatible with BCRA § 203, and (b) if the First Amendment as originally understood is incompatible with a law then that’s a reason to hold the law unconstitutional. I have a problem with Kennedy’s reasoning for (a), and also a problem with his entirely neglecting to state – let alone argue for – (b).

This is the meat of Kennedy’s originalist rationale:

Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech…. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era—newspapers owned by individuals… At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join in such proliferating polemics, and rebuttals could come from all sides”); G. Wood, Creation of the American Republic 1776–1787, p. 6 (1969) (“[I]t is not surprising that the intellectual sources of [the Americans’] Revolutionary thought were profuse and various”).

To begin on a gossipy note, it is verry interesting how tacked on the first sentence’s reference to original meaning sounds. Taken together with how desultory the originalist “analysis” is, I’d say that’s evidence the originalism is there at all only at the behest of the Court’s “Constitution-in-Exile” (only kidding, guys) wing. (Precisely what Scalia had to do to wedge it in is between him, Kennedy and his confessor. But it’s tantalizing to think that just maybe the two reached some sort of inchoate understanding: Scalia would attach some unenthusiastic non-originalism to the majority opinion in DC v. Heller[1] if Kennedy indulged in some unenthusiastic originalism in Citizens United (or some future case).)

Its genesis aside, this is truly awful stuff. Even assuming Kennedy had established that the original meaning of the Constitution conflicted with BCRA § 203, he gives no guidance on what bearing this has on his opinion as a whole. Is it an extra reason to hold BCRA § 203 unconstitutional? Of what weight? If the original meaning had not conflicted with BCRA § 203, would that have been enough to tilt the scales? If not, why include the originalism at all? In short, as they stand, Kennedy’s originalist ruminations amount to hey, look at this! hardly appropriate in a piece of normative legal reasoning.

The other problem is that Kennedy’s “efforts” to establish that the original meaning of the Constitution gels with his holding are a total farce. He quotes The Ideological Origins of the American Constitution saying “[a]ny number of people could join in such proliferating polemics, and rebuttals could come from all sides” as evidence that, “at the founding,” the law allowed “any number of people [to]” speak; Gordon Wood’s “[I]t is not surprising that the intellectual sources of [the Americans’] Revolutionary thought were profuse and various” is likewise supposed to establish that speech was legally unrestricted.

What he doesn’t seem to realize – or maybe doesn’t care about – is that he’s excerpting from Bailyn’s and Wood’s respective descriptions of the social conditions – widespread political engagement, a profusion of printing presses, the conduciveness of pamphlets to dialoging – that resulted in an outpouring of Revolutionary polemics. They aren’t concerned with the law (with who precisely was allowed to speak or not), and they are especially not concerned with United States law (because they’re writing about a time before the US existed).

So much for the substance of Kennedy’s pathetic originalist analysis. It also supplies three great ironies. First, it is based entirely on a misreading of secondary sources. Second, along with JGA Pocock, Bailyn and Wood were the main originators (or, at least, rejuvenators) of historical contextualism, which emphasizes that a piece of text can only be understood in relation to the historical milieu (e.g. the sentences immediately surrounding it) of which it is a part. Finally, Wood, in his “Comment” on Scalia’s theoretical defense of originalism (which I’ve addressed before), explicitly worries that originalism is susceptible to abuse by quote-mining judges looking to justify codifying their own policy preferences. This must bring it home.

(Happily, there’s a silver lining: Bailyn really likes grotesque historical episodes  – “perverse” is one of his favorite words – so he probably gets a kick out of it all.)

[1] The unenthusiastic non-originalism reads: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

This guy reads the tea-leaves: “The problem with this opinion is in the dicta that indicate the Court would accept as reasonable restrictions on the exercise of the right that could render it meaningless in too many situations. It is possible that these dicta are concessions that Justices Scalia, Roberts, Alito, and Thomas felt they had to make to win the swing vote of Justice Kennedy…”.



  1. Doesn’t the court have to think about the possible consequences of setting a precedent? A friend of mine who is in law school right now told me that one of the exercises professors often give is to give an opinion about the consequences of enacting some new law. I would think that the grave possibility of rampant corruption in the US government would be given at least some small consideration.

  2. You could be asking two different questions: (a) when overruling one of its own precedents (as it did in Citizens United), doesn’t the Court have to think about the practical consequences of so doing? (b) whenever it decides a case, doesn’t the Court have to consider practical consequences?

    Regarding (a), a few die-hard originalists aside [1] – and even they have qualms [1] – virtually everyone agrees that the Court shouldn’t overturn a precedent unless (i) it wrong as a matter of law and (ii) overturning it won’t have any bad consequences (that is: “the [precedent] [a] could be removed without serious inequity to those who have relied upon it or [b] significant damage to the stability of the society governed by it [and] [c] the law’s growth in the intervening years has left [the precedent] a doctrinal anachronism”). So the answer to (a) is “yes.”

    (b) is less clear. While there are more who would say “fiat justitia ruat caelum” (at least when it comes to certain parts of the Constitution) when deciding an issue on which the Court hasn’t yet spoken, current doctrine holds that no Constitutional protection is absolute. If the Constitution secures a right (the strongest sort of protection it guarantees), that right may be violated if the State has a “compelling interest” in doing something that can only be done by effecting the right-violation.

    So you’re right that the Court, under its own doctrine, should have considered whether its holding in Citizens United would result in rampant corruption (or various other infelicitous effects). And the Court claimed that it did consider the question – but judged, for every effect, either that it wasn’t bad enough for the State to have a “compelling interest” in preventing it or that it wasn’t clear the effect would obtain. (Stevens, in dissent, lambasted the Court for judging that corruption wouldn’t follow from Citizens United without bothering to consider any hard evidence.)

    [1] Cf. “Trumping Precedent with Original Meaning: Not as Radical as it Sounds” (

  3. […] is cited perfunctorily, typically to draw irresponsible inferences from it. (I’m reminded of this.) GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); […]

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