September 25, 2013  ·  Lessig  · Reblogged from  Tumblr

So a fair and frequent question I get from my friends when I describe my optimistic view about the conservative Supreme Court justices is: “How can you be so naive?”

It’s a fair question, as this faith has led me to many errors. I had faith in Bush v. Gore. And in Eldred v. Reno. And in the Obamacare case (the result was consistent if not the reasoning). And in Golan v. Holder.

In each case, I was wrong. Some say because I read the “originalism” wrongly. Some say because I have too much faith in the “originalists.”

But regardless, here I go again: As I have written, in my view, a committed originalist would find it difficult to interpret the term “corruption” to refer to “quid pro quo” corruption alone. 

So we’ll see. 

(Original post on Tumblr)

September 25, 2013  ·  Lessig  · Reblogged from  Tumblr

Speaking at HLS Thursday, 26 September, David Stockman is a former congressman, former budget director (for Reagan), and a current author (The Great Deformation). The book is a powerful, angry book, which has angered many on the left and right. But there is an important truth woven throughout, and though the book is not architected to please anyone, we’ll be working hard at the lecture to surface this important truth. #Rootstrikers of all kinds welcome. 

(Original post on Tumblr)

September 25, 2013  ·  Lessig  · Reblogged from  Tumblr

On Thursday, Senator Elizabeth Warren and I will participate in an event hosted by the Constitutional Accountability Center (livestream here) to discuss a brief I submitted in a corruption (aka “campaign finance”) case that the Supreme Court will hear on October 8: McCutcheon v. F.E.C.

At the center of the brief is a Tumblr — the first time a Tumblr has been used in an argument in a Supreme Court brief.

The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning. 

The upshot of the collection is that the Framers meant more by “corruption” than simple “quid pro quo” (this for that) corruption. In particular, their main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”

This research should be significant to the “originalists” on the Supreme Court (the 5 conservatives) at least. They say they interpret the Constitution by looking to its original meaning. If they look to the original meaning of “corruption,” they would see that they have no legitimate sanction for restricting the meaning of “corruption” to “quid pro quo” corruption alone (as some recent cases suggest at least some believe). And if they did not restrict it to “quid pro quo” corruption alone, then the regulation in McCutcheon, which limits aggregate contributions, could be justified: it’s purpose is to limit dependence upon large donors; that purpose is a perfect valid “anti-corruption” purpose, at least in the view of the Framers. 

(Original post on Tumblr)

September 24, 2013  ·  Lessig  · Reblogged from  Tumblr

I bought a product at CVS online. They emailed me a request that I review the product on their site. I did. I didn’t like the product, but I complied with every single requirement for comments. Today I got a polite email telling me they had rejected my comment. When I clicked on the link to “contact us,” 404’d.

So when you see a certain glow on the CVS site, remember, it is carefully edited. 

(Original post on Tumblr)