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What Originalism Is, and Isn’t



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Over at The Corner, Ramesh Ponnuru draws our attention to an accusation by the American Prospect’s Scott Lemieux that Justice Scalia, fabled originalist, offers no originalist argument for the position he takes in the McCain-Feingold case decided yesterday.  Lemieux wants Scalia to present “evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation.”  Ramesh’s response is a good one–that it is reasonable to begin with the premise that “the First Amendment was originally understood to protect the ability to engage in political speech without governmental restriction.”

I would add that Lemieux appears to have the cockamamie notion that originalism is some sort of creedal commitment like a religion, so that when its accents are absent from a putatively “originalist” justice’s arguments, he is somehow being hypocritical or inconsistent.  But originalism is a tool, a method–and if one pays any attention to Justice Scalia, one notices that for him the resort to it is only necessary when the text is not pellucid.  Method One for Scalia, as he has often noted, is textualism.  The text governs.  If the ordinary interpretive arts for determining the text’s meaning are sufficient to clarify all the law needed to decide a case, no resort to historical evidence of an original understanding is necessary.  If those arts are insufficient, examining the historical evidence is probably necessary.  Textualism first, originalism second.

Now, assuming that the “freedom of speech, or of the press” mentioned in the First Amendment is to be authoritatively protected by the courts in the course of ordinary litigation (a proposition that, for originalist reasons,  I doubt, but that Scalia does not, and neither I’m sure does Lemieux), then we move immediately to those ordinary interpretive arts.  In a constitution, a reference to “freedom of speech” must be understood to refer preeminently to political speech.  In no circumstances and at no time is such speech more vital than during elections in a republic.  McCain-Feingold is undeniably a restriction on the freedom to communicate about candidates and issues during an election campaign.  How hard is this?  Who the heck needs to do an originalist analysis?

Lemieux anachronistically asks for evidence that the political actors of 1791 thought of the First Amendment as barring “the regulation of campaign spending and donation.”  Wrong question.  Can he think of anyone who even dreamed of regulating campaign spending and donation, by anyone at any time in any amount, before the progressive era?  The Sedition Act of 1798 was less obviously an encroachment on political speech than McCain-Feingold.  In fact, Wisconsin Right to Life would not have run afoul of the Sedition Act, were it still in force, for anything it said about Senators Feingold and Kohl.



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