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 Strine

Leo Strine

University of Pennsylvania Carey Law School; Wachtell, Lipton, Rosen & Katz; Columbia Law School - Ira M. Millstein Center for Global Markets and Corporate Ownership

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 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 Strine (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
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Wachtell, Lipton, Rosen & Katz ( email )

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Columbia Law School - Ira M. Millstein Center for Global Markets and Corporate Ownership ( email )

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New York, 10027
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Nicholas Walter

Wachtell, Lipton, Rosen & Katz ( email )

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

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