Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History

The Harvard John M. Olin Discussion Paper No. 812

94 Pages Posted: 16 Feb 2015 Last revised: 26 Feb 2015

See all articles by Leo E. Strine

Leo E. Strine

Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School

Nicholas Walter

Wachtell, Lipton, Rosen & Katz

Date Written: February 13, 2015

Abstract

Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate.

Keywords: Citizens United, corporate law, originalism, legal history

Suggested Citation

Strine, Leo E. and Walter, Nicholas, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History (February 13, 2015). The Harvard John M. Olin Discussion Paper No. 812. Available at SSRN: https://ssrn.com/abstract=2564708 or http://dx.doi.org/10.2139/ssrn.2564708

Leo E. Strine (Contact Author)

Government of the State of Delaware - Supreme Court of Delaware ( email )

820 N. French Street
P.O. Box 1997
Wilmington, DE 19801
United States

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Nicholas Walter

Wachtell, Lipton, Rosen & Katz ( email )

51 West 52nd Street
New York, NY 10019
United States

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