Speir on Citizens United v. Federal Election Commission, Originalism, and the Corportation

Ian S. Speir (Georgetown University Law Center) has posted In Search of an Originalist View of the Corporation on SSRN. Here is the abstract:

In separate opinions in Citizens United v. Federal Election Commission, Justices Stevens and Scalia spar over “original understandings” of the First Amendment and whether a corporation would have been viewed by the founding generation as within the Amendment's protections. This paper picks up where the Justices leave off, seeking answers to the questions they raise: How did America’s founding generation view the corporation? Did the founders see it as a “private” or a “public” entity? Was it considered the private property of its owners or did it exist to serve a public function? In a similar vein, what was the extent of legislative power over corporations?

The conclusion ultimately drawn is that the search for the founders’ views on the corporate entity is something of a snark hunt. That is, how the corporation was conceived, socially and legally, in the dawn of America is elusive and indeterminate. This is so for two reasons.

First, the early American corporation is a moving target. Even in its earliest incarnations, it was an entity in which public purpose and private interest coexisted. In the late eighteenth century and prior, the public purpose dominated. But as the nineteenth century dawned, the corporation was poised for rapid change, and by 1830, its status as a general-purpose vehicle for conducting private business (such as manufacturing) was unquestioned. The phase shift the corporation underwent over this period suggests that the founding generation (which, after all, did not die out in 1800) was innovating.

In parallel to this historical development, there was tension in the views held by late eighteenth and early nineteenth century American jurists. At that time, the debate over corporations centered on the power retained by state legislatures over their charters. Was a corporate charter – a document specially granted by a legislature to legally constitute a corporation – a general act of legislation, revocable and amendable at the legislature’s will? Or was it a private contract between the state and the corporation’s owners? This early debate would be resolved by the Supreme Court in 1819 in Trustees of Dartmouth College v. Woodward, where the “private contract” argument won the day, buttressed by the Court’s distinction between “public” and “private” corporations. But prior to that, these topics were subjects of some discussion and disagreement among American lawyers.

My modest goal in all of this is to articulate the considerable state of flux in which the corporation found itself in early American history. The founding generation held divergent views of the corporate entity. They were, it appears, as “schizophrenic” as we are today about the corporation. The moral of the story is that engaging in an originalist analysis for answers to the questions that vex us is simply unavailing. In this area, originalism is likely to produce indeterminate judicial and policy outcomes because the founding history and the views held by that generation are in obvious tension.

This student piece is recommended.

Despite my admiration for this piece, the abstract is a bit misleading. There is no discussion of the contemporary literature (e.g., Barnett, Lawson, Whittington, etc.) and it isn't clear what the author means by originalism.  So far as I can tell, the piece is assuming that Scalia is an "original intentions originalist" and that the search for original meaning is directed at expectations about the application of the text.  Both assumptions would be controversial, and neither, in my view, is correct.