For example, several have long asserted that the Constitution’s grant of power to Congress to regulate “Commerce” was designed to grant authority to regulate the entire economy—or even all social relations. This silly argument has been disposed of multiple times (see this article and its footnotes), but it keeps emerging in articles whose authors are ignorant, or disregardful, of prior rebuttals.
Similarly, statists have portrayed the Necessary and Proper Clause as an “elastic clause,” giving Congress “vast power.” This despite the fact that copious Founding Era evidence shows that the Necessary and Proper Clause was designed to be a rule of interpretation that actually granted no authority additional to that already conferred.
The most recent series of incidents involve writings by law professors trying to justify Congress in dictating campaign finance rules. These professors argue that the Constitution contains a generalized “anti-corruption principle,” and that we should interpret the First Amendment through that principle. The principal promoters of this argument have little background in originalist research.
Professor Seth Barrett Tillman (who has a great deal of background in originalist research) has written a new essay, supported by a detailed underlying article, devastating their assertions. Just to quote one example of Professor Tillman’s comments:
Let’s be clear. Lessig and Teachout are asking us to embrace corruption as the key concept espoused by the Framers of the Constitution (and of the Bill of Rights). But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension? And, more importantly, how can Lessig or Teachout ask us to do so as an exercise in originalism or in the name of the long-dead Framers? (emphasis added)
I’ve been chagrined to see my own writings cited in some articles promoting the “anti-corruption principle” claims—most often my 2004 article, The Constitution and the Public Trust. Its heavily-documented thesis was that the Founders believed that government should be conducted on fiduciary principles, and that the Constitution’s phrases should be read with that understanding. But I never suggested those principles should trump constitutional text.
Anyway, trust principles actually cut against congressional campaign finance regulation, not in favor of it. This is because it is a clear conflict of interest for a Congress of incumbents to regulate the campaigns of candidates running against them.
Moreover, the Founders were conscious of this conflict of interest, and explained how it should be handled. During the ratification debates advocates of the Constitution expressly represented that Congress’s power (Art. I, Sec. 4) to regulate the “Manner of holding Elections” should be interpreted in a very limited way. I document all this in a more recent article (cited by Justice Thomas last term). That article concludes that the Constitution’s “Manner of holding Elections” referred only to subjects such as the type of ballot and the votes necessary to win. It did not extend to regulation of campaigns, except for bribery in the actual conduct of the polling. Regulation of federal campaigns was consciously left to the states, including state laws against defamation and corruption.
It should not be necessary for serious scholars like Professor Tillman to have to spend time rebutting what historians contemptuously refer to as “law office legal history”—that is, special pleading in historical garb. But the propaganda power of the law professoriate is considerable. So, regretfully, it is necessary.
Thanks to Professor Tillman for his work.