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. 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 business corporations’ legal subordination to the decisions made by elected legislators
and the lengthy history of federal and state legislation restricting the involvement
of for-profit corporations in the political process, it can be fairly
described as more “original” than originalist.
Leo E. Strine Jr. & Nicholas Walter,
Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol91/iss3/1