Remarkl
2 min readDec 1, 2021

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This article is very, very wrong, as is the ridiculous piece by Strine and Walker. Let me quote the latter:

"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 explicitly gave them."

The "originalist" view of corporations was clearly that they had WHATEVER rights their charters granted them. It is entirely possible that, under the charters of eighteenth century corporations, corporations could not spend money to support a candidate, but that would be a matter of STATE law, not Federal Constitutional law. And today, if the charter of a corporation declared that a corporation could not engage in political speech, then that corporation would not be allowed UNDER STATE LAW to engage in such speech. But if STATE law changes to permit corporations to speak, nothing about originalism makes the First Amendment inapplicable to that speech.

The most relevant originalist view of the First Amendment is that it does not say whose speech is being protected. Compare the First Amendment to the Fifth. The First bars Congress from "abridging the freedom of speech, or of the press." It doesn't say WHOSE freedom; it says "THE" freedom. That's because Madison understood free speech to be a "right" of the electorate, not the speaker. It makes no difference who is speaking. If the speech is political - as any speech can be - then ANYONE can utter it, and NO ONE can be held to account for it. That's originalism. The First Amendment doesn't give speakers any "rights," broad expressive or otherwise. The First Amendment gives all of us the right to hear what anyone has to say, and authorizes anyone stopped from saying it to sue for (or defend, as the case may be) our right to hear it.

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Remarkl
Remarkl

Written by Remarkl

Self-description is not privileged.

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