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.
