The Fatal Flaw in Citizens United v. Federal Election Commission; a Federal Council of Revision

While working on my next book, Corporation Nation: The Rise and Demise of the American Economic Juggernaut (publisher still TBD), it occurred to me that the Founders would NOT have included business corporations (or other types of corporations for that matter) in the first amendment protection of speech because the concept of ultra vires was then so ingrained in corporate law. Ultra vires held that corporations could only engage in actions that they were explicitly chartered to conduct, strictly construed. Any other action was considered a fraud upon stockholders because it was an unauthorized use of their money, even if the action was approved by duly elected directors. Ergo, the originalist argument used by SCOTUS is flawed as the founding generation could not have had in mind a corporation that could *lawfully* use its resources to influence politics. As I have pointed out in a previous post, the founders were also very concerned about corporate influence on the political process in less direct ways, e.g. lobbying and coercing votes (in an age of open voting).

We really need to think about reforming how our Constitution is interpreted. As I have recently argued in this op ed, I think that it would be unconstitutional for the federal government to purposely default on the national debt. Apparently, however, it will have to actually default before the theory could be tested! Maybe what we need is something like the Council of Revision that was in place under New York's first constitution, a body of learned jurists who must pass on the constitutionality of bills before they become law and also empowered to treat serious constitutional issues BEFORE they inflict financial losses on taxpayers.

My Latest Doings

Been very busy of late promoting my new book, with the Wall Street Journal's Simon Constable, on 50 "musty" economic indicators. The book briefly hit number 94 on Amazon's overall list and #1 on the economics, personal finance, and investments lists before slacking off somewhat.

Among other activities, I've done several radio interviews, most with Simon but one solo that you can listen to here.

I also penned (well, keyboarded) an op-ed that the major newspapers were too cowardly to run, "Original Intent and the Debt Ceiling," that argues that it is unconstitutional for the U.S. government to deliberately default on the national debt. Of course I sent it out the same week as the orgy over the OBL story took place so it may simply have been too wonky for the times. Maybe I should have gone "smexier" and called the piece "Why Killing OBL Isn't Going to Save Us." But I'm kind of old school and believe that if a person or organization isn't smart enough to see the crucial importance of a topic without putting makeup on it, I can safely "forget" them all.

Finally, I have posted a paper on the history of bank governance on the Social Science Research Network. It's free.