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Is the Constitution Laissez-Faire? The Framers, Original Meaning, and the Market
Brooklyn Law Review (2015)
  • Stephen M. Feldman
Did the Constitution create a laissez-faire government-market 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 pro-business Court since World War II.  Both of these judicial characteristics -- originalism and a pro-business orientation -- were on display in Citizens United v. FEC. In a five-to-four 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 free-expression cases like Citizen United.
  • constitutional interpretation,
  • originalism,
  • Citizens United,
  • First Amendment
Publication Date
Citation Information
Stephen M. Feldman. "Is the Constitution Laissez-Faire? The Framers, Original Meaning, and the Market" Brooklyn Law Review Vol. 81 (2015) p. 1
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