The Volokh Conspiracy - Channeling the Framers, Justice Stevens' Way:

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.

	[Eugene Volokh, July 5, 2006 at 4:53pm] Trackbacks Channeling the Framers, Justice Stevens' Way: 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.