Leo Strine and Nicholas Walter published a recent article, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877 (2016). Strine is the chief justice of the Delaware supreme court and a leading corporate law jurist. The article contests Scalia’s concurrence (joined by Thomas and Alito) that under an originalist analysis the First Amendment provide constitutional right of free speech to corporations. The concurrence is fairly short and can be summarized by the argument that  the “constitutional text . . . makes no distinction between types of speakers” and that the “Amendment is written in terms of ‘speech,’ not speakers.” 558 U.S. at 386, 392. By providing a history of the corporation, Strine and Walter reveal the simplistic nature of Scalia’s logic. The crux of their argument is:

Justice Scalia’s contrary contention is premised on an assumption that the Framers’ failure to state explicitly that corporations did not have equal rights with human citizens reflected their tacit belief that corporations had whatever rights human citizens were granted by the Constitution. But as we have shown, that premise is unoriginalist and backward, because it takes interpretive license from a silence that is entirely understandable in light of the then-universally accepted understanding that corporations were creatures of government that had only such rights as were specifically granted to them. A corporation was the opposite of a Lockean-Jeffersonian human being with inalienable rights: corporations possessed no rights except those that were granted to them by the government. It would be more faithful to originalism to recognize that silence in terms of whether corporations were granted rights weighs against the conclusion that they had those rights.

Until the early eighteenth century corporations were specially chartered. General corporation statutes did not become prominent until the mid-eighteenth century. Accordingly, historical evidence suggests that the Framers had no reason to consider the relevance of a distinction; thus, the lack of a distinction, emphasized in Scalia’s concurrence, is no evidence at all. In other words, sometimes the meaning of words change with time. Someone described in an old novel as “nice” could have meant she was “silly” whereas she would be considered today in a modern novel to be “pleasant” (see here ). At the time of the ratification of the First Amendment, corporations existed, but there was no historical reason to suggest that at the time they were considered “persons” in common usage and knowledge. Strine and Walter’s article is an interesting read and their argument is quite persuasive, but its scope is limited to debunking Scalia’s originalist argument in Citizens United. If Citizens United is reexamined, one wonders to what extent Scalia’s unhistorical argument will be relevant in light of his passing and the fact that he was joined only by Thomas and Alito in the conservative majority.

Robert Rhee

Professor Rhee’s legal experience includes positions as a law clerk on the U.S. Court of Appeals for the Third Circuit, and a trial attorney in the Honors Program of the U.S. Department of Justice. He also has significant investment banking experience. He was a vice president in financial institutions investment banking at Fox-Pitt, Kelton (then a unit of Swiss Re) in New York, a real estate investment banker at Deutsche Banc Alex. Brown, and an M&A investment banker at UBS Warburg in London. He has worked on public and private M&A assignments, distressed restructurings, private equity funding, and debt and equity issuances. He is an active writer and scholar. His articles have been published in leading journals including New York University Law Review, Michigan Law Review, Northwestern University Law Review, Vanderbilt Law Review, Notre Dame Law Review, Emory Law Journal, William & Mary Law Review, and Florida Law Review.

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