Opinion: Obama's Lawyer Should Have Used Originalism to Sway Originalist Justices

by - October 10, 2013

If “corruption” means just an illegal “quid pro quo,” that indeed is a very hard question, as the solicitor general discovered this week. Yet for an “honest originalist,” as Justice Antonin Scalia recently described his judicial philosophy, and presumably, the philosophy of the other four originalists on the Supreme Court, there’s a pretty obvious reason why a system in which Congress is dependent upon 25,000 individuals would be a “corruption.” “Corruption,” according to the Framers of our Constitution, did not mean just, or even primarily, the “quid pro quo” corruption of individuals. Instead, as an empirical study of the Framers’ usage reveals (and as I argued in an amicus brief in the case) the dominant conception of “corruption” for them was the corruption of institutions, not individuals. Fifty-seven percent of the times when the Framers used the word “corruption,” they were speaking of institutions. The one clear and repeated example was an institution that had developed an “improper dependence.” Parliament, for example, was corrupt because it had developed an “improper dependence” upon the king. The key to fighting corruption, then, was to avoid such “improper dependences.” This conception of corruption is directly relevant to the question of aggregate limits. According to Madison, Congress did have a dependence—but in this case, it was not improper, it was intended. As he wrote in Federalist 52 (in a passage that Scalia quoted just last Term), the House, at least, was to be “dependent on the People alone.” Alone. An exclusive dependence, not one among many, and as Madison wrote in Federalist 57, “not the rich, more than the poor.” (The Senate was different, because it was appointed by the state legislatures.)

Obama's Lawyer Should Have Used Originalism to Sway Originalist Justices - Lawrence Lessig - The Atlantic

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