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

59 Pages Posted: 21 Feb 2015 Last revised: 30 Sep 2016

See all articles by Leo E. Strine Jr.

Leo E. Strine Jr.

Harvard Law School; University of Pennsylvania Law School

Nicholas Walter

Wachtell, Lipton, Rosen & Katz

Date Written: 2016

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: Jurisprudence, constitutional interpretation, original intent, original understanding, originalism, election law, campaign finance reform, corporate personhood, general corporation statutes, political speech, First National Bank of Boston v. Bellotti, Santa Clara County v. Southern Pacific Railroad

JEL Classification: K22, K30

Suggested Citation

Strine Jr., Leo E. and Walter, Nicholas, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History (2016). Notre Dame Law Review, Vol. 91, Pg. 877, 2016; U of Penn, Inst for Law & Econ Research Paper No. 15-3. Available at SSRN: https://ssrn.com/abstract=2567416 or http://dx.doi.org/10.2139/ssrn.2567416

Leo E. Strine Jr. (Contact Author)

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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