One of the most distinct aspects of Heller, was the knock-out drag-down brawl between Justice Scalia and Stevens over the original understanding of the Second Amendment (I discuss this discussion here). Well, Citizens United is Round II!
From Nino’s Concurrence:
I write separately to address JUSTICE STEVENS’ discus-sion of “Original Understandings,” post, at 34 (opinionconcurring in part and dissenting in part) (hereinafterreferred to as the dissent). This section of the dissent purports to show that today’s decision is not supported bythe original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right ofEnglishmen did not include the freedom to speak in asso-ciation with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters;but the dissent provides no evidence that their speech inthe pursuit of those objectives could be censored.
Instead of taking this straightforward approach todetermining the Amendment’s meaning, the dissent em-barks on a detailed exploration of the Framers’ views about the “role of corporations in society.” Post, at 35. The Framers didn’t like corporations, the dissent con-cludes, and therefore it follows (as night the day) thatcorporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporationsis relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text. But the dissent’s distortion of proper analysis iseven worse than that. Though faced with a constitutionaltext that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolatedstatement from the founding era to the effect that corpora-tions are not covered, but places the burden on petitionersto bring forward statements showing that they are (“thereis not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form,” post,at 34–35).
The dissent offers no evi-dence—none whatever—that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.5
Justice Stevens counters, with some originalism of his own:
Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internalquotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not ascintilla of evidence to support the notion that anyone believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case,they would appear to cut strongly against the majority’sposition
In light of these background practices and understandings, it seems to me implausible that the Framersbelieved “the freedom of speech” would extend equally toall corporate speakers, much less that it would precludelegislatures from taking limited measures to guard against corporate capture of elections.
Update: Thanks for the link Professor Solum. See all my posts on Citizens United here.