Scott Lemieux argues that some of the conservative Supreme Court justices are being inconsistent. Justice Thomas made an originalist argument for the proposition that schools may constitutionally censor students’ speech. On the same day, he joined a Scalia opinion that held restrictions on campaign finance unconstitutional without undertaking any kind of originalist analysis at all.

Now, I don’t have any reflex to defend the conservative justices from this kind of charge. I think something very like Lemieux’s argument (as I’ve described it above; he makes one additional point that I’ll get to in a minute) is true of the conservative justices’ approach to affirmative action. They don’t make much effort to ground their affirmative-action decisions in originalism, and I have doubts about whether they could. And it is a weakness of Justice Scalia’s opinion that it does not apply his usual originalism.

But I take Lemieux to be arguing that the only way to reconcile Scalia’s opinion with originalism would be to prove “that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation.” I think the argument could proceed as follows: The speech portion of the First Amendment was originally understood to protect the ability to engage in political speech without governmental restriction. McCain-Feingold’s regulations on the flow of money are conditioned on the type of speech the money is financing: It has to be a particular kind of political speech for the regulations to kick in. This argument does not seem to me to be a big stretch from the original understanding–or, really, a stretch at all.

Lemieux adds that the conservative justices betrayed their originalist principles because campaign-finance regulation threatens the ability of Republicans to win elections. It is a very weak claim. Political professionals were divided, in the run-up to the passage of the law, about which party would benefit from it; they still are. It isn’t obvious who is right. A good argument can be made that the soft-money ban hurt the Democrats. So Lemieux’s premise is very questionable, and he offers no evidence at all that the conservative justices accept it, as they would have to do to make his account of their motivations plausible.