Document Type

Article

Publication Date

2-11-2016

Abstract

Did the Constitution create a laissezfaire governmentmarket system This question is crucial to constitutional jurisprudence today Conservatives often assert that originalism is the best or only method of legitimate constitutional interpretation Originalism supposedly requires judges to uphold either the original public meaning of the Constitution or the Framers intentions On the Roberts Court Justices Scalia and Thomas are avowed originalists though the other conservative Justices are not averse to invoking originalist arguments or joining originalist opinions Empirical studies show that the Roberts Court because of its conservatives is the most probusiness Court since World War II Both of these judicial characteristics originalism and a probusiness orientation were on display in Citizens United v FEC In a fivetofour decision the conservative bloc invalidated statutory limits on corporate and union spending for political campaign advertisements The majority opinion concluded with an originalist flourish There is simply no support for the view that the First Amendment as originally understood would permit the suppression of political speech by media corporations Citizens United is not unique In case after case the conservative Justices act like market fundamentalists protecting corporations and the marketplace from government regulations even in freeexpression cases like Citizen United

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