At the New Reform Club, Seth Barrett Tillman: Extract from: Declaration of Professor Seth Barrett Tillman [on Behalf of Plaintiff Dinner Table Action], Dinner Table Action v. Schneider, Civ. A. No. 1:24-cv-00430-KFW (D. Me. Apr. 23, 2025). From the methodological discussion:
We might . . . ask: Do the anti-corruption concerns of the Framers and ratifiers, apart from constitutional text, supply a free-standing interpretive principle through which we could understand the Constitution? I believe the answer to this question is “no.” Where there is genuine ambiguity in a constitutional provision, a fair-minded interpreter who is aiming to determine a clause’s original public meaning can look to purpose, background assumptions, and policy concerns (such as limiting corruption) to determine the meaning and scope of a provision’s text. But where there is no genuine ambiguity, the agreed text should control. Likewise, a fair-minded interpreter should not look to Framers’ and ratifiers’ purposes, background assumptions, and policy concerns to generate interpretive principles abstracted from constitutional text. Why? First, no one agreed to purpose, background assumptions, and policy concerns. What was agreed to was the Constitution’s text. The Constitution nowhere uses the language of “corruption.” Thus, our injecting “corruption” into the interpretive process risks displacing other purposes, background assumptions, and policy concerns which were in play in 1787–1788. Second, we should not confuse a widely shared policy concern (e.g., limiting corruption) with widespread agreement as to what that policy entails. I do not doubt that every member of the Constitutional Convention sought to limit corruption. Corruption-discourse was widespread in the 18th century, at the Constitutional Convention, and in public debate on the Constitution during 1787–1788. But a shared use of corruption-related language in political debate does not mean that the participants in that debate had any widely shared understanding of what corruption was, or what policies would effectively limit corruption, or what level of corruption (if any) should be risked to facilitate accomplishing other important and widely shared policy goals. It is precisely because such questions are, in my view, unanswerable that our understanding of the law of the Constitution should be tethered to constitutional text. Finally, “corruption” is an amorphous term, as is “virtue” or the “common good.” In my opinion, the idea that specific substantial legal issues should be decided by reference to such amorphous terms, abstracted from constitutional text, is fundamentally unsound.
Posted at 12:55 AM