Lawrence Lessig (Harvard Law School) has posted If Roe, then Buckley on SSRN. Here is the abstract:
Modern originalism was born as a theory of democratic restraint; it has morphed into something very different. In this essay, I argue that originalists have lost touch with this founding humility, and that nowhere is this costlier than in First Amendment campaign finance jurisprudence. By what right do unelected judges rewrite the rules of our democracy? At the founding, “the freedom of speech” was a natural right whose contours were to be determined by representative legislatures pursuing the general welfare. Buckley v. Valeo seized this power from the legislature, inventing an historically anachronistic conception of “corruption” to strike down critical aspects of Congress’s effort to protect democracy from aristocratic wealth. As Justice Thomas has said of New York Times v. Sullivan (1964), Buckley is a policy-driven decision masquerading as constitutional law. And if the principles of originalism demand Burger Court decisions such as Roe be discarded, then so too must Buckley go.
Highly Recommended!
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