Michael Perry writes:
I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the mattermight conclude that you have bought into the “expected applications” version of originalism, and I doubt you mean to do that! So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.
I’m not as negative about the use of “expected applications” as many people (including, I think, Professor Perry) are. I agree that the founding generation’s expected applications of their language are not in themselves binding. The question is the meaning of the text (which is what was adopted as law). But — in my view — the original expected applications are evidence of the text’s meaning. They are not conclusive evidence. But how members of the founding generation expected the text to apply to situations which they fully understood is evidence of what they thought the text meant; and evidence of what they thought the text meant is evidence of what it’s ordinary meaning was.
To take an example in my area of scholarship, suppose the question is whether Article II, Section 1’s grant of “the executive Power” to the President gives the President powers in addition to those specifically listed in Article II, Sections 2 & 3. If we find that important members of the founding generation expected the President to have powers not listed in Article II, Sections 2 & 3, that is evidence of what they thought “the executive Power” meant. It’s not conclusive (they might have been wrong about what executive power commonly meant), but we would need some good reason for thinking they were wrong.
In any event, I didn’t mean to take a position on expected applications in writing about McCutcheon. If I were exploring the campaign finance question, I would want to know first whether “the freedom of speech” had been understood to include contributions in the period before the Philadelphia convention, in England or America. (This is the approach I’ve taken in thinking about executive power, for example). It seems particularly useful in the free speech context, because the clause is commonly thought to refer to and incorporate a pre-existing idea of free speech. As far as I know, no one has looked into this question (and neither the plurality nor the concurrence in McCutcheon did).
At the same time, though, I think it would also be relevant (not conclusive, and perhaps less persuasive) if people in the post-ratification era thought contributions were covered (or not covered) by the clause. I would also want to know why they thought this (that is, what was their textual argument and how plausible was it), what institutional or personal reasons they had for thinking this, and how common and well-accepted it was. I’m not sure if this inquiry is what some people reject as mere “expected applications,” but I would not categorically reject it.
Another reader (wishing to remain anonymous) writes:
Regarding your blog post about McCutcheon, I agree with you that the Court did not seem to ask the key originalist questions: what does “the freedom of speech” mean as an original matter, and does that meaning encompass campaign contributions? I would note, however, that almost none of the Court’s free speech jurisprudence appeals to original meaning. It seems the animating force behind the Court’s jurisprudence in the post-WWII era has been John Stuart Mill, as opposed to any serious originalist inquiry.
I think that’s largely right until recently. But it may be changing. More recent cases have taken a historical approach, asking (not always successfully) whether particular categories of speech (or their analogues) were or were not part of “the freedom of speech” in the founding era and thereafter. I’m thinking here of cases such as Brown v. Entertainment Merchants, United v. Stevens and United States v. Alvarez. The approach is not fully originalist but it has originalist overtones. Will Baude had an excellent post on this a while ago. At least, the Court seems to be signalling more interest in historical/originalist arguments (except, not in McCutcheon).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.