Selective Originalism?

The XX Factor
What Women Really Think
Sept. 10 2009 3:36 PM

Selective Originalism?

Emily , Justice Scalia made a lot of hay in yesterday’s campaign finance case out of the fact that when it came to regulating campaign contributions by corporations, "Congress has a self-interest," and would have necessarily crafted rules to favor incumbents. I was trying to figure out why that felt so very déjà-vu-ish to me until a reader wrote in to remind me that Scalia made precisely the same point last spring in the Voting Rights Act case . At that oral argument, he urged that the judgment of Congress was not to be trusted with respect to its overwhelming vote to reauthorize the Voting Rights Act, because, as he said, "They get elected under this system. Why should they take it away?" It’s starting to be something of a theme for Justice Scalia-at least with respect to elections-Congress cannot be trusted to do anything because it’s too crippled by self-interest. But it does sort of leave one wondering what Justice Scalia would trust the Congress to do. And whether that whole Article I thing doesn’t seem to move him as much as it might.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


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