21st century scholarship analyzing the Framers’ treatment of corruption asserts that their incorporation of anti-corruption means in the Constitution should be interpreted as a framework to inform contemporary judicial review and jurisprudence. Led by Zephyr Teachout’s article “The Anti-Corruption Principle,” this school of thought asserts that the anti-corruption principle should be on par with separation of powers and freedom of expression, a guiding lodestar in interpreting the Constitution.
This article submits that the anti-corruption principle of constitutional interpretation is, in fact, a rights-based approach to corruption, equating freedom from corruption with the other rights and liberties enshrined in the Constitution. In that sense, the anti-corruption principle is not only in harmony with, but protects and enhances, the Constitution’s other provisions. Indeed, the anti-corruption principle itself can be regarded as a right. The conceptualization of freedom from corruption as a human right—distinct from the characterization of corruption as an impediment to the enjoyment of other human rights—has gained traction in recent years, in parallel with scholarship about the anti-corruption principle, as new constitutions and public international bodies invoke this rights-based approach.
Nonetheless, in recent years, the U.S. Supreme Court has rejected the anti-corruption principle, at least as a constitutional tenet. Instead, the Court has relegated case after case of self-dealing, trading in influence, and patronage to the realm of politics, not law. It has narrowed its working definition of corruption in violation of the public trust to quid pro quo bribery and kickbacks. It has simultaneously limited which official acts can be treated under the law as criminal quid pro quo and, earlier this year, narrowed whom the law considers a public official for the purposes of anti-corruption law.
This article analyzes the Supreme Court’s increasingly narrow treatment of public corruption over the last twenty years and its effects not only on the law itself, but also on democracy and human rights in the U.S. The article concludes with a solutions-based analysis of a local anti-corruption intervention that furthers both the anti-corruption principle and a rights-based approach to corruption.