TPM Cafe: Opinion

SCOTUS Term Shapes Up To Be A Battle Over Constitutional Originalism

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Take, for instance, McCutcheon v. FEC - a sequel to Citizens United. This important campaign-finance case involves a constitutional challenge to federal limits on the total amount of money that wealthy donors may contribute to candidates and political committees during a given election cycle. However, rather than simply resting on well-established Court precedent or reasonable policy arguments, progressives are also drawing upon cutting-edge research by Professors Lawrence Lessig and Zephyr Teachout to argue that the Founders' original understanding of corruption supports broad federal power to safeguard the integrity of our democratic process, including through federal aggregate contribution limits like the ones at issue in McCutcheon.

Or, consider National Labor Relations Board (NLRB) v. Noel Canning, a U.S. Chamber of Commerce-led assault on the President's recess appointments power. There, the Chamber and its client, Noel Canning, are challenging three of President Obama's former recess appointments to the NLRB - an important body that oversees federal laws addressing wages and workplace conditions. In response, progressives, including the Obama Administration, have pressed the Court to keep faith with the Founders and uphold the challenged appointments - in the process, drawing upon the Founders' vision of a strong, independent Executive Branch led by a single President on duty and tasked with executing the nation's laws 24-7, 365 days a year, including when the Senate is unavailable to offer its advice and consent.

Finally, a similar dynamic is at play in Bond v. United States. While the specific legal issue in Bond is limited to Congress's power to pass laws to implement valid treaties, a broad ruling could also significantly limit Congress's power to enact laws under the Necessary and Proper Clause in other contexts. However, rather than ceding the Constitution's text and history to conservative legal organizations seeking to limit Congress's power and overturn nearly a century's worth of precedent, progressives are fighting back with originalist arguments of their own - reminding the Court that, in ditching the dysfunctional Articles of Confederation, the Founders sought to create a strong national government with the power to negotiate treaties with foreign nations, pass laws to fulfill those treaty obligations, and, in turn, enhance the young nation's international reputation.

And these are just the cases already on the Court's docket. Similar battles over original meaning loom on the horizon and may yet reach the Court this Term, including an important Fourth Amendment challenge addressing a police officer's power to search an arrestee's cell phone (including her emails, contacts, pictures, etc.) without a warrant, as well as a set of blockbuster cases involving "free exercise" challenges by secular, for-profit corporations to the ACA's contraception mandate.

With both the legal left and the legal right fully engaged, the battle over the Constitution's original meaning will be one of this Term's biggest stories.

Kendall is a litigator, author, activist, and non-profit entrepreneur as well as the Constitutional Accountability Center's founder and president. Donnelly is Constitutional Accountability Center's Message Director and Counsel. This post originally appeared on CAC's blog.