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02/19/2015

Leo Strine Jr. & Nicholas Walter: Originalist or Original
Michael Ramsey

Leo Strine Jr. (Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School) and Nicholas Walter (Wachtell, Lipton, Rosen & Katz) have posted Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History on SSRN. Here is the 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.