688
Scalia, J., dissenting
former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court." 497 U. S., at 95-96 (dissenting opinion) (footnote omitted).
There can be no dispute that, like rewarding one's allies, the correlative act of refusing to reward one's opponents— and at bottom both of today's cases involve exactly that—is an American political tradition as old as the Republic. This is true not only with regard to employment matters, as Justice Powell discussed in his dissenting opinions in Elrod, supra, at 377-379, and Branti, supra, at 522, n. 1, but also in the area of government contracts, see, e. g., M. Tolchin & S. Tolchin, To the Victor: Political Patronage from the Clubhouse to the White House 14-15, 61, 233-241, 273-277 (1971); A. Heard, The Costs of Democracy 143-145 (1960); R. Caro, The Power Broker: Robert Moses and the Fall of New York 723-726, 738, 740-741, 775, 799, 927 (1975); M. Royko, Boss: Richard J. Daley of Chicago 69 (1971); Wolfinger, Why Political Machines Have Not Withered Away and Other Revision-ist Thoughts, 34 J. Politics 365, 367-368, 372, 389 (1972); The Bond Game Remains the Same, Nat. L. J., July 1, 1996, pp. A1, A20-A21. If that long and unbroken tradition of our people does not decide these cases, then what does? The constitutional text is assuredly as susceptible of one meaning as of the other; in that circumstance, what constitutes a "law abridging the freedom of speech" is either a matter of history or else it is a matter of opinion. Why are not libel laws such an "abridgment"? The only satisfactory answer is that they never were. What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the
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