The Supreme Court’s 5–4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, is one of the most controversial opinions in recent memory. Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert C. Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.

Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.

Blending history, constitutional law, and political theory, Citizens Divided explains how a Supreme Court case of far-reaching consequence might have been decided differently, in a manner that would have preserved both First Amendment rights and electoral integrity.

In a series of remarkable forays, Robert Post develops an original account of how law functions in a democratic society. His work offers a radically new perspective on some of the most pressing constitutional issues of our day, such as the regulation of racist speech, pornography, and privacy.

Drawing on work in sociology, philosophy, and political theory, Post demonstrates that the law establishes distinct and competing forms of social order: democracy, in which the law embodies the possibilities of collective self-determination; community, in which the law articulates and enforces a common social identity; and management, in which the law creates the conditions for accomplishing specific goals. Debates over the boundaries between these distinct domains, Post argues, are central to some of the most intractable problems of modern constitutional law. Here we see, for instance, how the controversy over the regulation of racist speech negotiates the boundary between communitarian and democratic forms of social ordering. We see how public forum doctrine, a crucial but notoriously mysterious component of First Amendment jurisprudence, arbitrates distinctions between the social domains of democracy and management. Taking up specific court cases, such as that against Hustler magazine and that allowing prayers before state legislatures, Post shows us what is actually at stake in these constitutional struggles.

A highly complex and sophisticated account of the operation of constitutional law in modern society, Constitutional Domains is essential reading for lawyers, social theorists, and makers of public policy.