Cite as: 558 U. S. ____ (2010)
35
Opinion of STEVENS, J.
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’s
position.
This is not only because the Framers and their contem
poraries conceived of speech more narrowly than we now
think of it, see Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L. J. 1, 22 (1971), but also
because they held very different views about the nature of
the First Amendment right and the role of corporations in
society. Those few corporations that existed at the found
ing were authorized by grant of a special legislative char
ter.53 Corporate sponsors would petition the legislature,
and the legislature, if amenable, would issue a charter
that specified the corporation’s powers and purposes and
“authoritatively fixed the scope and content of corporate
organization,” including “the internal structure of the
——————
53 Scholars
have found that only a handful of business corporations
were issued charters during the colonial period, and only a few hundred
during all of the 18th century. See E. Dodd, American Business Corpo
rations Until 1860, p. 197 (1954); L. Friedman, A History of American
Law 188–189 (2d ed. 1985); Baldwin, American Business Corporations
Before 1789, 8 Am. Hist. Rev. 449, 450–459 (1903). JUSTICE SCALIA
quibbles with these figures; whereas we say that “a few hundred”
charters were issued to business corporations during the 18th century,
he says that the number is “approximately 335.” Ante, at 2 (concurring
opinion). JUSTICE SCALIA also raises the more serious point that it is
improper to assess these figures by today’s standards, ante, at 3,
though I believe he fails to substantiate his claim that “the corporation
was a familiar figure in American economic life” by the century’s end,
ibid. (internal quotation marks omitted). His formulation of that claim
is also misleading, because the relevant reference point is not 1800 but
the date of the First Amendment’s ratification, in 1791. And at that
time, the number of business charters must have been significantly
smaller than 335, because the pace of chartering only began to pick up
steam in the last decade of the 18th century. More than half of the
century’s total business charters were issued between 1796 and 1800.
Friedman, History of American Law, at 189.