If Not a Commercial Republic? Political Economy in the United States after Citizens United

Abstract

In Citizens United v. Federal Election Commission, a majority of the Supreme Court conceived the United States to be an oligarchy and ruled accordingly. What this decision might come to mean for political economy in the United States is explored through three interrelated responses to the decision. In the first, Citizens United is a turning point for constitutional law scholarship, and by extension, for what is expected from our legal system. After Citizens United, legal scholars may abandon the idea that the Court takes legal argument seriously, and that law thereby constrains, as well as expresses, social privilege. In a second interpretation, Citizens United marks the end of the traditional conception of the United States as a “commercial republic,” that is, a polity characterized by the mutually reinforcing interaction of three separate spheres of social life – markets, the legal system, and democratic government. Instead, Citizens United expresses a simpler dualistic vision, in which “the government” is opposed to a “civil society” dominated by marketplace interactions, including elections. In the third interpretation, the Citizens United Court moves away from traditional, competitive notions of markets founded on business law, and moves toward a less legalistic capitalism, managed for the benefit of the wealthy. The Citizens United majority may be wrong in thinking of the United States in terms of oligarchy. It is possible that the nation is better conceived as a commercial republic. In that case, the article provides a number of ways that the Court’s decision may be corrected. It is also possible, however, that Citizens United correctly characterizes the United States as an oligarchy. In that case, the legal academy should rethink law and institutions on the basis of non-republican, presumably aristocratic, virtues.