Originalist or original: the difficulties of reconciling Citizens United with corporate law history.

• Author: Strine, Leo E., Jr.
• Position: Introduction through IV. Corporations in the Antebellum Period B. Judicial Treatment of Corporations Before the Civil War, p. 877-907

INTRODUCTION

Much has and will continue to be written about the United States Supreme Court's decision in Citizens United v. EEC. (1) In that decision, the Court held that the part of the Bipartisan Campaign Reform Act of 2002 (the "McCain-Feingold Act") that prohibited corporations from making expenditures expressly in favor of the election or defeat of political candidates, except through corporate-sponsored political action committees that raised specific funds for that purpose, was unconstitutional as applied to the nonprofit advocacy corporation before the Court. (2) In its sweeping ruling, the Court suggested that the managers of even for-profit corporations whose shares are publicly traded have a First Amendment right to spend unlimited amounts of treasury funds to influence the political process, including to advocate the election or defeat of particular candidates for office.

In this Article, we focus on a specific question raised by Citizens United, which is whether the Supreme Court's decision can be justified solely by application of the originalist method of constitutional interpretation, or whether it can only be explained by giving substantial weight to a more modern, evolved understanding of the relevant constitutional provisions. The dissent in Citizens United, authored by Justice Stevens and joined by Justices Ginsburg, Breyer, and Sotomayor, argued that the decision could not be defended on originalist grounds. Injustice Stevens's view, the Framers "had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind." (3) In a concurring opinion, originalist Justice Scalia, joined by Justice Alito and in relevant part by Justice Thomas, claimed that the majority's result was faithful to originalism as they articulate it. (4) Justice Scalia argued that there was no historical evidence that the government could restrict the speech of business corporations.

In addressing this subject, we acknowledge that Justices Scalia and Alito concurred in the majority opinion, an opinion that itself did not rely upon the originalist methodology, and that the originalist concurrence was crafted as a rebuttal to Justice Stevens's dissent, which argued that the majority opinion was unhistorical. Nevertheless, because Justices Scalia and Thomas, and originalist methodology, have such influence in current jurisprudence, we believe it is important to consider whether Citizens United can be rationalized on originalist grounds. After all, originalists claim that their method is the only method faithful to the idea that the law is something determinable as the work of certain legitimately empowered authorities, and not whatever the current group of judges decides to say it is.

Originalism is an interpretive doctrine commonly associated with those who describe themselves as conservative. (5) In a prior article, we discussed whether Citizens United, usually seen as a product of the "conservative" wing of the Supreme Court, could be reconciled with the predominant conservative corporate law theory, and found that it could not. (6) In this Article we explore whether the outcome in Citizens United can be justified by reference to the originalist interpretive principles as embraced by Justice Scalia and other prominent conservatives. (7)

Originalist interpretation, as applied by Justice Scalia, entails a two-pronged approach. (8) In the first instance, if the constitutional text is unambiguous and answers the question posed, the Court must give the text its unambiguous meaning. If, however, the text is ambiguous or does not directly address the question before the Court, then the Court is to do its best to interpret the text consistently with the understanding at the time of its adoption. Contemporaneous societal understanding is therefore what is relevant to originalists such as Justice Scalia, who eschew the notion of a "living constitution" whose meaning changes by virtue of changing societal norms and judicial interpretations rather than changes to constitutional text.

Here, we observe that the text of the First Amendment does not specifically address the question of whether business corporations have the right to make unlimited treasury expenditures advocating the election or defeat of political candidates. More broadly, we note that the Constitution does not indicate that entities created and chartered by authority of legislation, as opposed to actual human beings, have any free speech rights at all. (9) We thus examine whether Citizens United can be rationalized as originalist by reference to the historical understanding of the legal status and social role of the business corporation--including its ability to exercise constitutional rights--as of two critical time periods. The first is 1789 to 1791, when the First Amendment was submitted to the states and became part of our nation's Constitution. The second is 1866 to 1868, when the Fourteenth Amendment was added to the Constitution. These periods are relevant because Citizens United suggests that the First Amendment gave rights to for-profit corporations in part by virtue of rulings treating business corporations as persons under the Fourteenth Amendment and entitled to raise certain constitutional rights against state intrusion by virtue of that Amendment. (10)

At each historical stage, we find that the relevant text is not clear that business corporations are entitled to First Amendment speech protection and that an originalist would have to consult historical context to determine whether that was so. As to the First Amendment, one of the first originalists, Robert Bork, wrote that "[t]he framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject." (11) As a result, "[w]e are ... forced to construct our own theory of the constitutional protection of speech. We cannot solve our problems simply by reference to the text or to its history." (12) The text of the Fourteenth Amendment also provides no suggestion at all that corporations were considered "persons" for purposes of the Amendment.

When the historical public understanding of the First Amendment is considered, the originalist foundations of Citizens United begin to quiver. As of the Founding, there were no business corporations operating under so-called general corporation statutes. (13) Rather, the only extant business corporations were specifically created by legislatures with detailed charters that their managers were obligated to follow with fidelity. The ultra vires doctrine forced corporations to strictly adhere to the powers, activities, and ends detailed in their charters. Someone with a much closer view to the historical context than any current Supreme Court Justice, (14) the Chief Justice of the United States in 1819, wrote in his decision in the Dartmouth College case that "[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence." (15) As an originalist matter, therefore, it was impossible for the First Amendment to generally accord business corporations broad expressive rights because the understanding at the time was that corporations only had the rights specifically granted in their charters, and that corporations were not in any way persons like actual human beings. In fact, corporations had the opposite relationship to society as human beings in the Lockean-Jeffersonian sense, in that rather than possessing inalienable rights that society could not take away, corporations had only such rights as society explicidy gave them.

Likewise, as of the time of the adoption of the Fourteenth Amendment, there was no weakening of the accepted notion that corporations only had such rights as were specifically granted to them by the government that chartered them, and that they were subject to substantial governmental restriction. (16) Although by that time, corporations had become more common and general corporation statutes had emerged allowing private citizens to form corporations consistent with the broader enabling nature of those statutes, the ultra vires doctrine (albeit somewhat weakened) remained the prevailing rule. (17) Most important, legislatures that had moved to adopt general corporation statutes did so on the assumption that they reserved the power to restrict corporations from engaging in conduct inconsistent with the public interest. (18) That is, corporations remained creatures of the state in the sense that they were granted a legal existence on the condition that they operate within the constraints imposed upon them by society. And as internal corporate law constraints weakened, other external sources of law emerged to address the influence of corporations, including laws restricting their involvement in the political process. Thus, the idea that corporations were entitled to be considered as persons with constitutional rights co-extensive with those of actual individuals would have been inconsistent with the understanding of the relationship between the government and the corporation as of 1868. Even after the Fourteenth Amendment was ratified, the constitutional protections granted to corporations in judicial decisions were limited to property rights closely related to a corporation's ability to conduct its business and preserve its assets. (19)

Thus, we conclude that however Citizens United is rationalized, it cannot be defended solely or primarily as the product of a disciplined application of the originalist method of constitutional interpretation. Because Citizens United takes a view at odds both with the historical understanding of...