The Separation of Business and State

56 Pages Posted: 20 Nov 2007 Last revised: 9 Feb 2013

See all articles by Timothy K. Kuhner

Timothy K. Kuhner

University of Auckland, Faculty of Law


National scandals involving corporate fraud, political corruption, lobbyists, and campaign finance have called attention to worrisome dynamics: the decreasing power of natural persons relative to legal persons in the political process; and the erosion of civic or democratic values in favor of corporate values. Both dynamics relate to the vexing problem of money in politics. American political thought and constitutional structure offer much-needed guidance in the form of analogies and separationist logic.

This Essay recasts the phenomenon of money in politics as a separation problem that is, a problem of the private sphere of business overreaching into the public sphere of governance; in short, excessive entanglement. Once the problem is seen in this light, it is natural to search for insights in the two most significant separations in U.S. law: the separation of powers and the separation of church and state. An analysis of these earlier separations reveals that the forces at work today arise from the same perennial forces contemplated by the Founders: unreformed human nature, dominated by unenlightened self-interest and ideological passion, and factions which emerge as a collective manifestation of interest and passion. Relevant political philosophy from the first two separations helps define the contours of a third, that between business and state. Taken as analogies, the earlier separations help explain what is happening to politics and suggest a solution.

Keywords: Election Law, Political Theory, Constitutional Law, Democratic Theory, Separatism

Suggested Citation

Kuhner, Timothy K., The Separation of Business and State. 95 California Law Review 2353 (Issue 6, 2007), Available at SSRN:

Timothy K. Kuhner (Contact Author)

University of Auckland, Faculty of Law ( email )

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Auckland Mail Centre
Auckland, 1142
New Zealand

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