This essay was adapted from a speech delivered at the 2024 National Conservatism Conference. All views are the author’s.
As I’ve always seen it, part of being a conservative is acknowledging the traditions you were raised in. And for me, one of those traditions was the conservative legal movement.
I was taught, within that tradition, that one of the most important litmus tests is whether you’re willing to be originalist when it hurts. Are you willing to take the side of the original meaning of the Constitution, even if people think you’re crazy? Even when there seem to be good policy arguments for stretching the text, just a little bit?
My old boss, Judge James Ho on the Fifth Circuit, has talked about the temptation of “fair-weather originalism.”[1] And he’s right. Anybody can be a crummy originalist if they just go through the motions. Anybody can cloak judicial writing in a veneer of history to reach the results they really want. It’s a lot tougher to cut against the grain—to make the hard call, to stand up for principle, when a lot of people are watching.
When we think about marquee examples of “originalism when it hurts,” there’s usually one case that turns up on everybody’s list. And that’s the case of Citizens United v. Federal Election Commission.[2] This was the 2010 decision where the Supreme Court changed the landscape of campaign finance. The Court ruled that Congress couldn’t restrict political speech—defined to include campaign-related spending—by corporations, including for-profit businesses.[3]
Now, the majority opinion by Justice Anthony Kennedy wasn’t a particularly originalist opinion. It mostly situated itself within lines of past precedent. But it was shored up by a concurrence from Justice Scalia, who lent some originalist ballast. Justice Scalia argued that, “At the time of the founding, religious, educational, and literary corporations were incorporated under general incorporation statutes, much as business corporations are today.”[4] And Justice Scalia went on to blur all these categories together. In his words, “Were all of these silently excluded from the protections of the First Amendment?”[5] Our response to Justice Scalia writes itself: surely not.
So there we have it. According to the Court, corporations, like natural people, logically have speech rights. Citizens United ostensibly passes the originalist litmus test: it’s counterintuitive, and it’s also an incredibly unpopular idea.[6] And when conservatives defend this in the public sphere, it takes some courage. I don’t want to discount that.
Supposedly, this state of affairs is what the Constitution’s original meaning demands. But does it, really?
I contend that Citizens United hinges on a myth. It’s a familiar myth, one we’ve all heard—the myth of the business corporation as autonomous, natural, organic—something set over against the oppressive power of the state. It’s the myth of the private sector versus the public sector. It’s the myth that the modern market economy is more basic, more primordial, than governance itself.[7] On this view, government is the bad guy, a bull in a china shop. And it’s this myth that lies at the root of contemporary conservatism’s disordered relationship to corporate power.
We can start our inquiry with a very basic question—so basic it’s almost banal. Just what is a corporation, anyway?
Pause for just a moment and reflect on the associations flashing through your head. Your first thought was probably something like, well, it’s just a business. Then, maybe your concept got a little more sophisticated. Maybe you thought about a nonprofit corporation. And your concept of the corporation expanded to something like this: a group of people, organized for some common purpose.
These are the basic intuitions that structure our thinking about corporations. Businesses first, and then a broader variety of groups. So when we hear slogans like corporations aren’t people, they resonate.
But here’s where it gets interesting. The further back in the past we look, the cloudier the picture gets. When we pause to reflect, we might know on an intellectual level that words don’t always keep the same meanings over time. But in practice, this is something we tend to forget. We link up common terms across the centuries, without seeing those terms in a larger context of beliefs and associations.
Corporation is one of those terms. Originally, a corporation just meant a body extended in time[8]—from the Latin corpus, or “body.” But what does that mean?
Let’s take an example. We’ve all heard the phrase: “The King is dead. Long live the King.” As Ernst Kantorowicz wrote in 1957, in The King’s Two Bodies, there’s a very important idea that underlies this phrase. It’s the idea that the King is both mortal and immortal. As a physical person, he’s born, grows old, and dies. “The King is dead.” But his royal authority lives on. It immediately passes to another.[9] So, “long live the King.”
This is why we have the legendary William Blackstone, for instance, speaking of “corporations sole”—that’s S-O-L-E, sole—that “consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had.”[10] Then Blackstone drives home the point. “In this sense the king is a sole corporation: so is a bishop.”[11]
It’s hard to overstate how strange Blackstone’s words sound to us, today. The king is both an individual and a corporation. What’s going on here? But let’s put that question on pause, just for a minute. Consider, first, the big-picture implications of Blackstone’s point.
If Blackstone is right, then when we think about the relationship between the market and the government, between business corporations and political authority, we shouldn’t really be talking about corporations as something “outside” the realm of politics. Corporations, in the broad sense, don’t exist in some autonomous domain of “economics” divorced from “politics.” Instead, it’s corporations all the way down.[12] Our Presidency and Congress and Supreme Court, as legally constituted institutions and offices that survive the passing of their members, are “corporations” in precisely this sense.[13]
And this means that we need to ask different questions when we talk about corporate power. Such as: are all corporations created equal? Do they all have the same rights? Natural rights? This is the deeper question that Citizens United puts before us.
Now, to be clear, I’m not just pulling Blackstone out of a hat. Blackstone is one of Justice Scalia’s sources, too, in his concurrence.[14] But Justice Scalia’s concurrence skips over the more foundational question—of what a corporation actually is in the first place. Justice Scalia uses the term univocally, but it’s a multifaceted concept. All corporations aren’t the same.
If it’s corporations all the way down, then the relevant distinction—for purposes of Citizens United—is what kinds of corporations we’re talking about. How are their rights and responsibilities different?
On Blackstone’s account, political and religious corporations—these two, specifically—have a kind of corporate character that doesn’t depend on positive law, the law on the books. Their existence depends on the older common law. As Blackstone explains, these two categories of corporations—that is, political and religious—quote, “have ever been held (as far as our books can show us) to have been corporations . . . and this incorporation is so inseparably annexed to their offices”[15]—which is to say, we can’t think of them as anything other than corporations. Blackstone just means that, in practice, power naturally descends from ruler to ruler. Religious vocation passes from one minister to another. This happens whether or not the law formally recognizes it.
For Blackstone, when the law on the books treats political and religious authorities as “corporations,” it merely recognizes something, some quality of inherent extension in time, that already exists. It doesn’t create anything new. But this isn’t the case for other types of corporations, like businesses or universities. Those require an affirmative act to bring them into being. The positive law doesn’t just recognize these kinds of corporations. It creates them. It sets their boundaries and their powers.
If you don’t like the medieval metaphysics involved here, you can call it a legal fiction, like the “reasonable person” standard. But in any case, this is the world of thought in which the early moderns were operating. It’s a world that looks very different from ours.[16]
This is why, at the time of the Founding, the corporations that did exist were chartered by legislatures. They were strictly limited in their powers. Writing in 1819, John Marshall—the first Chief Justice—stressed that a corporation “possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”[17] That is, a chartered corporation—a corporation that’s created and not recognized—doesn’t also possess the inherent properties otherwise possessed by a human being. The business corporation is not a naturally given thing, something we discover in the world; its very existence derives from a lawgiver that precedes it. The political “corporation” brings other subordinate corporations into being.
Here’s the takeaway: historically, the market, and “corporate power” in the ordinary sense of the term, doesn’t exist in some freestanding independent space. It’s quite the opposite: business corporations depend upon political corporations for their very existence. That’s the source of their unity and their persistence in time. They don’t have natural rights, and they certainly never did at the time of the Founding.[18] Conversely, rights belong to people—real, natural people.
Now, back to the wrinkle. Some of those people are, by virtue of their unique political or religious roles, also“corporations” in the sense of having their role and authority extended through time. This means, for example, that the church is unique. It doesn’t exist because the government says it can. The powers of the clergy come from God. Those particular powers don’t derive from the sovereign.[19] But the powers of business corporations do. As far as the small-c constitution of society goes, political authority and theological authority are both more basic than the modern business sector. They’re more foundational.[20]
On this view, Citizens United is a comparatively easy case. Of course the government can regulate the activities of created corporations, because those corporations simply could not exist without it. No governmental corporation, no business corporations. Call it a radical claim. But that’s originalism for you.
I see this as a sort of vanishing point. It’s where the originalist tradition diverges from the conventional wisdom of American postwar conservatism. It’s a place where originalism and what Adrian Vermeule has described as the “classical legal tradition” ultimately converge.[21] And the question I want to ask is: are we still willing to be originalist when it can hurt this much? When it calls some of our most cherished presuppositions about the market into question?
I’m not sure we are. It’s a lot easier to close our eyes to this messy past, this history freighted with all kinds of religious and philosophical baggage. It’s a lot easier to hide behind familiar precedent. And that’s basically what’s happened.
For a long time, decades now, received wisdom in the conservative legal movement has basically been to treat the First Amendment as, basically, a principle of détente. Let a thousand flowers bloom. Get the government out of the business of anything that even smells like a speech restriction. Let everyone fight things out for themselves in the public square.
Republican-appointed and Democrat-appointed judges don’t agree on a lot. But they’re pretty united on this front. Just consider a couple of examples. Snyder v. Phelps, the case involving whether the Westboro Baptist Church could protest at military funerals without incurring tort liability, was an 8-1 decision that they could, with only Justice Alito in dissent.[22]Matal v. Tam, which involved whether the First Amendment required the Patent and Trademark Office to register, quote, “disparaging” trademarks, was a unanimous decision. The Court found they could.[23]
I don’t want to suggest that the Justices didn’t have good reasons for reaching these and countless other decisions. But it seems obvious to me that at least descriptively, the First Amendment is being read pretty expansively. It’s being read to knock down more and more laws passed through democratic processes. Citizens United is the exemplar case, but there are plenty of others. And it’s worth asking what this sort of maximalism means for the rest of our politics.
In a nutshell, we have an ever-more-expansive category of what counts as protected speech, alongside an ever-more-expansive category of who counts as a speaker. Maybe we think that’s a good thing. Maybe it keeps the peace. In some ways, it probably does. But the challenge is that politically, this approach means that we’re less and less able to solve actual problems of governance. It’s becoming harder and harder to push back on anything that business corporations do, because these actions can all be described as expressive and so protected by the First Amendment. The ratchet is going one way, and it’s going in the direction of private business power.
Last Term, the Supreme Court heard the case of NetChoice v. Paxton, which involved whether Texas could pass laws regulating social media platforms’ content censorship practices. The social media platforms argued that they, as social media platforms, were speakers just like you and me. They argued that they had a First Amendment right, as business corporations, to curate their platforms however they wanted, including by suppressing whatever information they wanted.[24]
In their briefing, what case do you suppose they invoked in support? That’s right—our old friend, Citizens United.[25] The myth of Citizens United is doing real damage. So many of the cultural and social problems we’re experiencing today, as conservatives, are problems of political economy.
In the case of big tech, we’ve got hugely powerful companies exercising monopoly power and exploiting network effects, controlling flows of information for millions of people. Manipulating kids. Profiting from it. And these companies have completely avoided political accountability because they talk out of both sides of their mouths. When it comes time to discuss liability for the stuff people post on internet platforms, the platforms say they’re just blind conduits of other people’s speech. That’s why the platforms claimed they needed Section 230, the liability shield.[26] And yet when it comes time to talk about the platforms’ censorship practices, the platforms claim they’re like newspapers with editorial curation. That’s why the platforms said they should win the NetChoice case.[27] This is an obvious contradiction.
These problems are unsolvable unless we’re willing to ask the hard questions that, I would think, our originalism should compel us to ask. Do these companies have the rights of natural persons? Citizens United says yes. But a more faithful originalism says no.
Our legal philosophy should not cannibalize our capacity for responsible governance. While we remain trapped within the myth of the autonomous corporation, a corporation with natural rights to do mostly as it pleases, we’re trying to govern with one hand tied behind our backs.
But fortunately, the myth is just that—a myth. We can start to tell a better and truer story about what corporations are—a story about how we got here, and how we can get out. Doing this will require a shift in our conservative legal culture. But it is the only way. Our path forward must recall an older and deeper tradition of corporate accountability to we, the people. That’s what it means to be authentically conservative.
[1] Judge James C. Ho, “Fair-Weather Originalism: Judges, Umpires, and the Fear of Being Booed,” Texas Review of Law and Politics 26 no. 1 (2021): 349.
[2] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[3] Citizens United, 558 U.S. at 365.
[4] Citizens United, 558 U.S. at 388 (Scalia, J., concurring).
[5] Citizens United, 558 U.S. at 388 (Scalia, J., concurring).
[6] Ashley Balcerzak, “Study: Most Americans Want to Kill ‘Citizens United’ With Constitutional Amendment,” Center for Public Integrity (May 10, 2018), https://publicintegrity.org/politics/study-most-americans-want-to-kill-citizens-united-with-constitutional-amendment/ (“Three-fourths of survey respondents—including 66 percent of Republicans and 85 percent of Democrats—back a constitutional amendment outlawing Citizens United.”).
[7] Cf. Eugene McCarraher, The Enchantments of Mammon: How Capitalism Became the Religion of Modernity (Cambridge, MA: Belknap Press, 2019), 10–12.
[8] William Blackstone, Commentaries on the Laws of England, vol. 1 (1765–69), 455 (spellings modernized) (“These artificial persons are called bodies politic, bodies corporate, (corpora corporate) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct.”).
[9] Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, NJ: Princeton University Press, 2016), 12–13.
[10] Blackstone, Commentaries, 457.
[11] Blackstone, Commentaries, 457.
[12] David Ciepley, “Is the U.S. Government a Corporation? The Corporate Origins of Modern Constitutionalism,” American Political Science Review 111 no. 2 (2017): 419 (“The corporation and the modern constitutional state embody a common governance technology—a technology that began with the corporation and passed over to the state, and at the heart of which is the delegation of authority by written charter.”).
[13] Cf. Steven D. Smith, Fictions, Lies, and the Authority of Law (Notre Dame, IN: Notre Dame Press, 2021), 117.
[14] Citizens United, 558 U.S. at 388 (Scalia, J., concurring).
[15] Blackstone, Commentaries, 460.
[16] Cf. Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal 127 (2017): 259.
[17] Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 636 (1819).
[18] See also Leo E. Strine, Jr. and Nicholas Walter, “Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History,” Notre Dame Law Review 91 no. 3 (2016), 881 (“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.”).
[19] Cf. Vincent Phillip Muñoz, Religious Liberty and the American Founding (Chicago: University of Chicago Press, 2022), 229–30 (defending a “jurisdictional” conception of religious liberty, on the basis of the same principles articulated here).
[20] See John Milbank and Adrian Pabst, The Politics of Virtue: Post-Liberalism and the Human Future (Washington, D.C.: Rowman & Littlefield, 2016), 252..
[21] Adrian Vermeule, Common Good Constitutionalism (Medford, MA: Polity Press, 2022), 53.
[22] Snyder v. Phelps, 562 U.S. 443 (2011).
[23] Matal v. Tam, 582 U.S. 218 (2017).
[24] NetChoice, LLC v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022) (“[T]he platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”).
[25] See Brief of Petitioners, NetChoice, LLC v. Paxton (U.S.), 2023 WL 8437869, at *37–38.
[26] See, e.g., Jeff Kosseff, The Twenty-Six Words That Created the Internet (Ithaca, NY: Cornell University Press, 2019), 139.
[27] See Amicus Brief of Senator Josh Hawley in Support of Respondent, NetChoice, LLC v. Paxton (U.S.), 2024 WL 305378, at *8–9 (“Equivocating on their role in ‘publication’ allows the platforms to invoke Section 230 to shield their behavior from private suits, and simultaneously invoke the First Amendment to shield their behavior from Texas’s law in the instant case.”).
