Citizens Divided

Citizens Divided

ROBERT C. POST
PAMELA S. KARLAN
LAWRENCE LESSIG
FRANK MICHELMAN
NADIA URBINATI
Copyright Date: 2014
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt6wps1x
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  • Book Info
    Citizens Divided
    Book Description:

    First Amendment defenders greeted the Court's Citizens United ruling with enthusiasm, while electoral reformers recoiled in disbelief. Robert Post offers a constitutional theory that seeks to reconcile these sharply divided camps, and he explains how the case might have been decided in a way that would preserve free speech and electoral integrity.

    eISBN: 978-0-674-36960-3
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. I THE LECTURES
    • 1 FIRST LECTURE: A SHORT HISTORY OF REPRESENTATION AND DISCURSIVE DEMOCRACY
      (pp. 3-43)

      Campaign finance reform is among the most vexing constitutional issues of our time. All sides agree that the stakes are momentous. For reformers, regulation is necessary to preserve the integrity of the Republic; for opponents, regulation threatens the freedom of speech necessary for democratic self-governance. The constitutional arguments slide past one another with scarcely a moment of mutual engagement. If constitutional law is meant to affirm common principles of agreement, the debate over campaign finance reform could not be more disheartening.

      The decisions of the Supreme Court exemplify the problem. From the beginning the Court has been nothing but confused...

    • 2 SECOND LECTURE: CAMPAIGN FINANCE REFORM AND THE FIRST AMENDMENT
      (pp. 44-94)

      InCitizens United v. FEC,¹ the Supreme Court, by a bitterly divided vote of five to four, struck down long-standing federal regulation of independent corporate campaign expenditures. Due to its extraordinarily broad rationale, the decision sent shock waves through the world of campaign finance regulation, as well as through First Amendment jurisprudence generally.

      At stake inCitizens Unitedis the nature of the state’s authority to regulate campaign finances. The Court inCitizens Unitedis explicit that the First Amendment is implicated in campaign finance reform because “Speech is an essential mechanism of democracy, for it is the means to...

  4. II COMMENTARY
    • 3 OUT-POSTING POST
      (pp. 97-105)
      Lawrence Lessig

      Among the many issues that the Framers struggled over was the question of how to select a president. The idea of a national popular vote was both fanciful and terrifying, so quickly the convention fixed upon the device of an Electoral College.

      But what if the College were tied? Who should resolve the deadlock? Some suggested the Senate. But that idea was quickly rejected, and it is the argument for that rejection I focus upon here. As summarized by Zachary Brugman:

      “Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy,” noted Hu Williamson from North Carolina....

    • 4 LEGITIMACY, STRICT SCRUTINY, AND THE CASE AGAINST THE SUPREME COURT
      (pp. 106-124)
      Frank Michelman

      A great treasure of Robert Post’s Tanner Lectures is the tale they tell of an American national historical adventure of the mind, wish fathering thought in the pursuit of the possibility of government by the people. Dean Post takes us through a succession of imaginative recastings of that possibility, right down to a currently prevailing, modernistically extenuated construction of it that Post names as “discursive democracy.” Superbly, Post stands before us as chronicler of an American political wisdom and as prophet of an American constitutional faith.

      But of course that is not all there is to it. Our friend speaks...

    • 5 FREE SPEECH AS THE CITIZEN’S RIGHT
      (pp. 125-140)
      Nadia Urbinati

      Robert Post delivered two extraordinarily important lectures, which will certainly have an impact on the constitutional and political debate concerning the quality of actual democracy in the United States. My task is very demanding because I am asked to comment on a work in relation to which I have no reasons for disagreement whatsoever and actually sympathize deeply with Post’s goal (to defend the reason for campaign finance reform) and with his method (to prove that this reform is consistent with the purpose of the basic of First Amendment principles, which is “to make possible the value of self-government”).

      The...

    • 6 CITIZENS DEFLECTED: ELECTORAL INTEGRITY AND POLITICAL REFORM
      (pp. 141-152)
      Pamela S. Karlan

      Robert Post’s ambition is “to provide a constitutional account of how . . . two distinct paths to self-governance”—on the one hand, “our republican tradition” of government through representative institutions and on the other, a more contemporary commitment to continuous democratic participation—“may be integrated, one with the other,” particularly with respect to the question of campaign finance reform. Much of Post’s first lecture is taken up with a rich and thoughtful history of how these two paths diverged. “[O]ur nation’s initial commitment to republican self-government” was expressed through the Constitution’s creation of “complicated and carefully balanced structures of...

  5. III RESPONSE
    • 7 REPRESENTATIVE DEMOCRACY
      (pp. 155-166)
      Robert C. Post

      Among the great pleasures of the Tanner Lectures is the opportunity to respond to thoughtful and astute commentators. In this regard I have manifestly hit the jackpot. I am grateful indeed for their wise and helpful observations. I find I have very little to add to their remarks, and so this response shall be quite brief.

      Larry Lessig’s comment on the corruption of improper dependence is characteristically perceptive. I accept Lessig’s claim that the Founders used the concept of corruption to refer to improper dependence. Because the Founders were devoted to the ideal of a representative republic, they could not...

  6. NOTES
    (pp. 167-242)
  7. ACKNOWLEDGMENTS
    (pp. 243-244)
  8. COMMENTATORS
    (pp. 245-246)
  9. INDEX
    (pp. 247-254)