Scalia continues his history of relying on history

Tuesday, June 14, 2011

WASHINGTON — When it comes to the First Amendment, as with other parts of the Constitution and Bill of Rights, Supreme Court Justice Antonin Scalia’s credo usually goes like this: If it was good enough for 18th century America, it’s good enough for us now.

In Doe v. Reed last year, when the issue was whether the names of petition signers should be kept private, Scalia said no, pointing to Colonial-era “viva voce voting” practices – individuals voting out loud, often in the presence of candidates. In Citizens United v. Federal Election Commission, Scalia traveled back to the late 18th century for proof that corporations should enjoy the same free-speech rights as individuals. And in commercial-speech cases, Scalia has been impressed by the fact that Colonial newspapers carried advertisements as well as news stories on their front pages.

So it should come as no surprise that yesterday, Scalia again reached for the history books in the First Amendment case of Nevada Commission on Ethics v. Carrigan.

At issue was a broadly worded recusal statute barring legislators from voting on issues in which they have conflicts of interest. Michael Carrigan, a Sparks city council member, was censured under the law for voting on a planned casino project in a way that benefited his former campaign manager. Carrigan challenged the law as a violation of his First Amendment rights. The Nevada Supreme Court agreed, finding that a legislative vote plays an important role in political speech, and that restrictions on voting therefore had to meet the highest “strict scrutiny” standard.

In defending the statute on behalf of the Nevada ethics commission, lawyer John Elwood was quick to assert in his brief that “legislative recusal rules were well established by the time of the Founding, and not only were they never thought to implicate individual legislators’ personal constitutional rights — they were understood to reflect fundamental principles of the social compact.” He invoked Thomas Jefferson and the early adoption by Congress of a recusal rule that was approved without dissent.

That argument might not have had as much impact if a justice other than Scalia had been assigned to write the majority opinion. But Scalia was the author, and he quickly cited the historical evidence offered by Elwood. “That evidence is dispositive here,” said Scalia, later calling it “overwhelming evidence of constitutional acceptability.” Invoking the words of an earlier decision, Scalia added that a “universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional.”

On the basis of the date of the first conflict-of-interest rule adopted by the House of Representatives, Scalia realized that “Members of the House would have been subject to this recusal rule when they voted to submit the First Amendment for ratification; their failure to note any inconsistency between the two suggests that there was none.”

He went on to assert that a legislator’s vote is a mechanical act of governance, not an expressive act protected by the First Amendment.

The historical argument also was key for Justice Samuel Alito Jr., who otherwise had misgivings about the case. “The Court demonstrates that legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech,” Alito wrote. “On that basis, I agree that the judgment below must be reversed.”

Once again, for Scalia and the Court, history carried the day in a First Amendment case.

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