Page:Citizens United v. Federal Election Commission.pdf/80

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CITIZENS UNITED v. FEDERAL ELECTION COMM'N

SCALIA J.,concurring

cludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is 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 is even worse than that. Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are ("there is 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).

Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them? The dissent’s statement that there were few business corporations during the eighteenth century—"only a few hundred during all of the 18th century"—is misleading. Post, at 35, n. 53. There were approximately 335 charters issued to business corporations in the United States by the end of the 18th century.^[1]See 2 J. Davis, Essays in the Earlier History of American Corporations 24 (1917) (reprint 2006) (hereinafter Davis). This was a “considerable extension of corporate enterprise

↑ The dissent protests that 1791 rather than 1800 should be the relevant date, and that "[m]ore than half of the century’s total business charters were issued between 1796 and 1800." Post, at 35, n. 53. I used 1800 only because the dissent did. But in any case, it is surely fanciful to think that a consensus of hostility towards corporations was transformed into general favor at some magical moment between 1791 and 1796.

[1] The dissent protests that 1791 rather than 1800 should be the relevant date, and that "[m]ore than half of the century’s total business charters were issued between 1796 and 1800." Post, at 35, n. 53. I used 1800 only because the dissent did. But in any case, it is surely fanciful to think that a consensus of hostility towards corporations was transformed into general favor at some magical moment between 1791 and 1796.

[1]