I was just rereading the Supreme Court's most recent campaign finance / free speech case, and was again struck by these paragraphs at the end of Justice Stevens' opinion. Vermont law (among other things) limited the campaigns of candidates for state representative to spending $2000 for the primary and general election campaigns combined. The law allowed higher limits for other races, including statewide races, but even those limits would be unconstitutional under Buckley v. Valeo. Justice Stevens argued that these restrictions should be upheld against a First Amendment challenge. Most of his argument focused on the practical effects of these limits, but he closed with this:
One final point bears mention. Neither the opinions in Buckley nor those that form today’s cacophony pay heed to how the Framers would have viewed candidate expenditure limits. This is not an unprincipled approach, as the historical context is "usually relevant but not necessarily dispositive." This is particularly true of contexts that are so different. At the time of the framing the accepted posture of the leading candidates was one of modesty, acknowledging a willingness to serve rather than a desire to compete. Speculation about how the Framers would have legislated if they had foreseen the era of televised sound-bites thus cannot provide us with definitive answers.
Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority. [Footnote: See Art. I, § 4 (providing that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"); see also § 5 (providing that "Each House may determine the Rules of its Proceedings").] And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews.
There are many arguments for and against relying heavily on what the Framers thought about the provisions that they were enacting, and that the Court is now interpreting. But I wonder how helpful it is to simply engage in free-form conjectures about what the Framers would have thought, with no real documentary support.
Would the Framers have been "appalled" by modern fundraising to the point of restricting candidates' ability to spend money on their campaigns? Or would they have been "appalled" by restrictions on people's right to pool their property in order to express their views? Would they have "surely ... not ... expected judges to interfere" with restrictions on the spending of money to express one's views? Or would they have thought that laws "requir[ing] candidates to budget their activities" -- which is to say to avoid some kinds of speech in order to be able to engage in other kinds of speech -- are quintessential interferences with the freedom of speech?
Justice Stevens is "firmly persuaded" that the Framers would have taken one view. I'm sure others are "firmly persuaded" of the contrary. Perhaps there's some evidence that can point us one way or the other. But Justice Stevens doesn't cite any such evidence, other than parts of the Constitution that don't expressly speak to this (and that in any event would presumably be as limited by the First Amendment as are other grants of Congressional power).
I'm sure that Justice Stevens sincerely believes that the Framers would have thought as he does. Yet that's an easy thing to believe, regardless of the historical support, no? Many modern Americans respect the Framers of the Constitution. These modern Americans naturally think the Framers were generally thoughtful and reasonable people. Yet of course these modern Americans also think that they themselves are generally thoughtful and reasonable people. Given this coincidence, it seems very easy for us to just assume that the Framers would have shared our views on some subject, and that we share the Framers' views.
All the more reason, I think, for us to be skeptical about arguments about what the Framers would have though, or "surely would not have expected," when those arguments lack even a single citation to a Framing-era source discussing what the Framers actually seem to have thought or expected about related questions.
The Framers were, you'll recall, from the generation that thought an evening's light entertainment was sitting around the coffee house discussing The Federalist Papers. The idea that the electorate could be swayed by vapid emotionalistic nonsense just because it was repeated to them ad nauseum would strike them as laughable.
Still, perhaps these four cases are the exceptions to the "just about every one of his 'concurrences' is guilty of this" rule. It would be helpful, though, to see pointers to particular concurrences in which Justice Thomas makes an argument about the original meaning of a provision without providing any evidence to support this assertion.
What I find is interesting is that George Washington spent quite a bit of his personal fortune buying ahem alcohol for constituents to win his house of Delegates seat in Virginia. But you know, we don't want to let that get in the way of the "reality-based communtity."
Stevens...ugh.
See Federalist No. 10
As far as I can tell, if you have to appeal to "well the Founders would have just felt that way" you're really not very convincing. Now, if you can say, in Federalist X, Principle Y was argued, or Founder Z said L in his personal papers, go ahead, but just "the founders would have felt..." Would they? I mean really? Do they have opinions of their own or are they just pawns in our political squabbles? Regardless of agree or disagree with the greatness of the US, using the founders in such a petty way (speaking for them when they did not speak) is, I feel, improper.
Justice Stevens does not know squat about American political history if he actually believes that the framers would have set spending limits. They were a very smart, pragmatic bunch who had just won their independence. They certainly would not have wanted to restrict free speech, and free elections
I do not claim to be able to think for the Founding Fathers, but I am certain that if they were alive today, they would probably feel it was each candidate's duty to raise funds and not impose any set limit.
Since campaign contribution limits and campaign spending limits generally exempt parties, it's hard to argue that they're intended to limit them. The advocates of such limits often claim that they're trying to strengthen parties. Maybe limits don't accomplish that goal, but ....
As I've long thought, most judges - on both the left and the right - make their decision, then go searching for the rationale... so when the framers could have been in favor, the judge cites the Framers... and when the Framers wouldn't have been thought to have been supportive of a particular line of thinking, then the judge cites the need for the Constitution to adapt to a changing world.
These kinds of bald assertions supported only by the arrogant certainty of the writer's moral judgments would barely earn a C at any decent law school. Time to hire new clerks.
? Doesn't he cite the Constitution? He says in the quote that they wouldn't have found it outside of Congress' authority, based on what they put into Article I.
He says that they would've been appalled by modern fundraising practices. This seems to me to be incredibly easy to say--after all, who isn't appalled? Why should the Prez and Congress attend $1,000-a-plate fundraisers half the time they're in office?
I think my favorite quip was in 1968, after George Romney infamously said he had been "brainwashed"; McCarthy said that a light rinse would have sufficed.
Kevin
Justice Stevens, it's impossible to "prove" how some dead people might feel about a modern issue if they could be brought back to life. We can't ~ever~ prove your thesis.
And the reason is, I, Justice Stevens, am at least as brilliant as, if not more brilliant than, the Founding Fathers, and that is what I feel is the case.
By comparison, "the press" bears a stronger resemblance to modern TV. printing costs money, just as making TV shows cost money. likewise, the press was generally a form involved prepared expression. unlike speech it isn't generally ab libbed.
But especially in that aspect about it being a "paid for" medium.
Also Stevens doesn't know sh*t about election history. First, most elected offices were won in direct and blatant campaigns. The only office in america that ordinarily was not won by direct campaigns, was the presidency. There, like Stevens alleged, people at least pretended that they didn't want to be president. And of course the people who wrote the constitution were not fooled about any of this. I am sure James Madison didn't believe Thomas Jefferson for one moment when he claimed that he felt like a prisoner being freed on leaving office.
Anyway, James Madison specifically anticipated these issues. Reread Federalist #10. What he was talking about, the evils of "faction" is exactly what they were trying to regulate in all these campaign finance regulations. And Madison correctly figured out that the "cure" is worse than the disease.
I think it comes down to a "fair competition" approach, akin to the anti-trust vision of the market. So, transparency. Know where all the money that goes to a candidate comes from. And let the people decide how they feel about this.
Stevens' argument is what passes for originalism among people who don't really understand originalism. It's a WWJD argument. You don't really need to cite anything; you just assert that he'd have taken your side.
No, certainly not as simply as you imply. The requirements for voting were different among the several states, and neither being male, white, nor a landowner were consistently requirements--commonly, but not universally.
Yours, TDP, ml, msl, &pfpp
I read this passage as an outline of how he personally would approach thinking about the views of the Framers on this issue, to the extent that it's relevant. But he quite sensibly says that it's impossible to know for sure what the Framers would have thought, and he sees nothing improper about the majority deciding the case without reference to what the Framers would have thought, given that uncertainty. You don't often see Scalia being so modest.
I would agree that this would be very thin stuff if it were what he were hanging his decision on, but it isn't.
(On preview I see that Prof. Volokh did say upfront that this was only a small part of Stevens' argument, but a lot of commenters seem to have overlooked that).
Thank you for your comment. In fact, I wrote inexactly. The most common colonial requirements for the suffrage were membership in the approved state church (later, generalized to Protestantism) and property, though there were differences from colony to colony. In practice, this restricted the franchise to between 50% and 80% of the male population, depending upon the colony. Because land was cheap, this was actually a much larger proportional electorate than in Great Britain.
Nonetheless, my point was that the context has changed so greatly that what we surmise the Framers would have thought about campaign finance reform, had they been able to frame that question, is irrelevant.
Call me crazy, but the behavior of the folks actually around at the time the original constitution and subsequent Bill of Rights were enacted doesn't at all support Stevens's polyanna vision (or, more likely, that of his silly law clerks).
To what conclusion this goes, though, I cannot for the life of me determine. Better I think to argue that the core content of the First Amendment, which clearly wasn't adopted with current campaign finance anywhere in mind, doesn't prohibit such regulation without a good doctrinal basis for such prohibition.
If fundraising keeps politicians from writing new legislation I say make it mandatory that they spend 75% of their time fundraising. The more time they spend away from Washington the better.
The framers certainly would have been horrified with a federal court intervening to overturn state rules governing state elections – but then the framers’ constitution did not have a 14th amendment.
Next, as for the federal elections: When politicians fund-raise, what this means is they contact constituencies and ask for support. One of the leading concerns expressed about the Constitution at the time of ratification was that the 2 and 6 year congressional terms were too long and Congress was so constituted so that members of Congress might spend too much time in the “ten miles square” and not enough among other Americans. But Justice Stevens thinks the framers would be horrified because fund-raising makes them get away from their duties and talk to other people, which is what they have to do when they fundraise.
What would really have horrified the framers (except maybe for a few outliers like Hamilton) is the scope of Congress’s current activities. They believed that even with long travel times and poor communications, representatives, at least, would spend most of their terms in their districts. This is now impossible, since Congress is making decisions on everything from museums in Ohio to the content of drivers’ licences in Montana. A major effect of this increased scope is that congressional elections are far more valuable than formerly – hence all that wicked fundraising.
Justice Stevens is a supporter of Garcia-style non-intervention in federalism issues. That makes him an odd one to cite the vision of the framers. First, Garcia-style non-intervention disclaims any judicial willingness to deal with what makes fundraising so furious at the federal level – the almost unbounded scope of congressional activity. Second, when antifederalists argued that Congress might exceed its scope and trample on the powers of the states, then how did leading federalists respond? In part by reassuring the voters that if Congress exceeded its enumerated powers, the courts would declare the action void (e.g., George Nicholas, Va. ratifying convention). So the framers' vision seems quite at odds with Justice Stevens' position on both fund-raising and federalism.
I mean every justice even the originalists clearly have their views influenced, or at least feel they are buttressed, by vague conceptions of what the framers were like or what sort of things people who really passed this bill intended. Sure Thomas backs up his claims about the framers with more citations but that only gives the illusion of formal support. Citations showing what the Framers thought about the government of their day don't make the inference to what they would feel about the government in our context any less of a guessing game. Even if all the framers had clearly indicated a distaste for some sort of campaign limit back in the day this hardly establishes that they wouldn't see the need for them in our context. This sort of inference can only be made based on a general judgement about their characters and personalities which can be developed by reading history but can't be justified by any handful of citations.
Look, suppose your friend left all his money to you trusting you would distribute it according to some general wishes/instructions he left behind. If a situation arose that was clearly totally beyond anything he had anticipated, say his best buddy dies in a car crash leaving his daughter with no way to pay or college, how would you figure out what he would have wanted done with his money? Quotes from him clearly made when he was contemplating totally different situations would be of little use compared to your general judgement of his personality and character. Trying to hide this behind a bunch of citations would only obscure this issue.
This is not a critique of Thomas, he is trying to divine what the framers actually thought they were agreeing to at the time not how they would counterfactually feel if they were saw what was going on now. However, Stevens shouldn't be attacked for not trying to pretend this is anything more than a judgement based on his sense of these men's characters and values from his knowledge of history.
Also I would argue that the framers expected the judiciary to evolve and change with the time. So while they might be horrified if you told them merely the extent of judicial power I suspect they would be positively impressed with how well the system works now and would recognize the need to a more active judiciary to counterbalance the greater congressional power. Ultimately I think the Framers were pragmatists above all else and seeing that we are a happy people who enjoy some of the most expansive freedoms in the world, often thanks to judicial protection, they would approve.