Miller on Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government

Paul S. Miller, Loyola University School of Law, has published Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government. Here is the abstract.

The article takes as its starting point the debate between Justices Scalia and Stevens in their respective Citizens United opinions. The subject of that debate was colonial and post-revolutionary society, and thereby the Framers’, opinion about corporations. Scalia wrote his concurrence in response to the portion of Justice Stevens’ dissent that argued the Framer’s did not trust corporations. A problem, for a historian, of Scalia’s and Stevens’ opinions is that they did not cite any statement by the Framers of the Constitution. All instead relying on the opinions of historians. Neither Justices provided any document actually written by the Framers in support of their position. Were this testimony in a trial, such would amount to hearsay. Such hearsay would be necessary if such statements were lost to antiquity. But those statements DO exist. The National Archives has collected a vast repository of the writings of many of the Founders, including those at the Constitutional Convention. And since 2009, those writings have been entered into a vast database: Founders Online. So I decided to research those writings for mentions of the British East India Company and then report what was said in a tidy little article. The hypothesis guiding my research is that leading figures of the convention 1) knew about corporations; 2) considered corporations a threat to republican government and its underlying philosophy of popular sovereignty; and therefore 3) wrote the guarantee clause in broad language so the federal government might address any threat to a republican form of government, including corporations. Based on the above, I argue that the Guarantee Clause grants Congress and, indirectly, state legislatures independent authority to regulate corporations’ participation in elections through political donations. This does not mean that campaign finance regulation should be shielded from by the political question doctrine central to Guarantee Clause jurisprudence: courts should continue to reach the merits of any First Amendment issues. But in deciding those issues, courts should take into account the Framers’ concerns and purposes for the Guarantee Clause in reaching and justifying a decision.

Dowload the article from SSRN at the link.