“Originalism: It’s Not Just for Conservatives Anymore”

Adam Winkler in SCOTUSBlog McCutcheon symposium talks of Lessig/Gans and Brennan Center amicus briefs.

In some ways, the McCutcheon amici highlight the limits of liberal originalism. If the embrace of history is merely strategic, designed to persuade one member of the Roberts Court’s conservative majority to vote for liberal outcomes (say, upholding aggregate contribution limits), its impact is likely to be quite minimal. None of the Justices is consistent in his or her use and reliance on history, not even Justices Clarence Thomas and Scalia, the most prominent proponents of originalism on the Court. The Justices’ votes on a wide range of significant constitutional issues can’t be explained by history, which one can see by looking no further back than June of this year. Whatever led the Justices to rule the way they did in Fisher v. University of Texas (affirmative action), Shelby County v. Holder (voting rights), and United States v. Windsor (marriage equality), it wasn’t a commitment to the original public meaning of the Constitution. Moreover, the Justices have ruled on numerous campaign finance cases in the past and have well-defined views of what qualifies as a constitutionally permissible motive for government regulation of money in politics. None is likely to be suddenly persuaded by these briefs – or any others – that the Justices have been wrong all these years.




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