Ian S. Speir (Georgetown University Law Center) has posted Corporations, the Original Understanding, and the Problem of Power on SSRN. Here is the abstract:
How did Americans of the late eighteenth century conceive of the corporation and of its role in society? And how did that understanding square with the original, publicly understood meaning of the Constitution and Bill of Rights? More to the point, in the wake of the Supreme Court’s controversial decision in Citizens United, would late-eighteenth-century Americans have thought that a corporation enjoyed the "freedom of speech" that the First Amendment guarantees? This paper wrestles with those questions. It attempts, first, to articulate the "original understanding of the corporation," arguing that for Americans of this period the corporation presented what might be called a problem of power. There was a recognized need both to delimit legislative authority over the creation and subsequent regulation of corporations and to limit corporate influence in private and public life. The solutions that emerged in this period were aimed at curtailing the risks of special-interest laws, legislative partisanship, and corruption.
Understanding the corporation in this way is important because it supplies a critical link to original meaning. In drafting the Constitution and Bill of Rights, the Framers were animated by concerns similar to those possessed by participants in the early corporation debates. On the one hand, they recognized that the federal legislature would be comprised of self-interested actors whose powers had to be restrained, and one solution was the First Amendment, phrased and understood as an express limitation on congressional authority. Because the amendment aimed specifically at the powers of Congress, and not at the rights of speakers as such, text and contemporary understanding strongly suggest that the identity of the speaker was irrelevant for constitutional purposes. So understood, the First Amendment limits the ability of Congress to restrict "speech," regardless of its source. Lending support to this view is the nation’s first free speech controversy in 1794, involving politically active groups whose "self-created, permanent" status was unsuccessfully urged as grounds for denying them First Amendment protections. On the other hand, the Framers were also aware that powerful interest groups (“factions”) might exercise an outsized influence in public affairs. Importantly, however, they did not lodge a power in Congress to regulate and restrict these groups’ participation in the political process. Rather, the solution was institutional, a series of structural safeguards in the Constitution designed to limit possibilities for rent-seeking and corruption. Juxtaposition of these two solutions – the First Amendment’s limitations and the Constitution’s institutional controls – make out a strong case that, for the founding generation, a corporation would have enjoyed the First Amendment’s protections for "freedom of speech."
Posted at 3:28 AM