Corporate Person-hood and Constitutional Rights for Corporations
Introduction
Are corporations people? Should they, like ordinary individuals, be able to claim constitutional protections? These questions, which form the heart of Professor Kent Greenfield’s book, Corporations are People Too (And They Should Act Like It),1 have become among the most important in modern constitutional law due to a trio of high-profile, landmark cases. In Citizens United v. Federal Election Commission, the Court held that business corporations have the same free speech rights as ordinary people to spend their money on election advertisements.2 In Burwell v. Hobby Lobby Stores, Inc., the Court held that business corporations have religious liberty under a federal law, the Religious Freedom Restoration Act, entitling the chain of craft stores to an exemption from a federal law requiring birth control coverage in employee health plans.3 More recently, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court ruled that business corporations have religious liberty rights under the First Amendment, allowing a for-profit bakery to refuse to comply with a state law prohibiting public accommodations from discriminating on the basis of sexual orientation.4
One prominent criticism of these controversial decisions is that the Supreme Court relied on corporate personhood—the legal doctrine that treats corporations as if they are legal persons with their own rights. In the wake of Citizens United, Occupy Wall Street protestors held up signs saying “Corporations Are NOT People” and adopted a resolution declaring that “one critical threat to authentic democratic self-governance comes from the fact that corporations have been defined as legal persons. . . . [H]uman beings, not corporations, are persons entitled to constitutional rights.”5 A proposed amendment to the Constitution has been introduced that would limit the “rights protected by the Constitution of the United States” to “natural persons only.”6
In Corporations Are People Too, Greenfield offers a powerful rebuttal to these critics. Although Greenfield, too, believes that Citizens United is a problematic decision, he argues that the critics are wrong about corporate personhood. According to Greenfield, corporations should be considered legal persons for some purposes, including constitutional analysis. “Corporations do, and should, receive constitutional protections,” Greenfield contends, even if not all of the same ones that ordinary people enjoy. To sort out which rights corporations should have, Greenfield offers a nuanced test that looks at the type of corporation and the nature of the right. “In other words, when it comes to the Constitution, corporations are people some of the time. And sometimes they are not.”
Inspired by Greenfield’s book, this article provides a historical analysis of the role of corporate personhood in the rise of constitutional protections for corporations.7 By surveying the most important corporate rights cases decided by the Supreme Court over the course of American history, this article finds that corporate personhood has not played the central role in justifying the steady expansion of corporate constitutional rights that some critics of Citizens United might assume. Start, for example, with Justice Anthony Kennedy’s majority opinion in Citizens United; it never refers to corporations as people and nothing in the logic or reasoning of the opinion depends upon corporate personhood. Justice Kennedy employs instead a different metaphor for the corporation: corporations are associations. Describing the corporation as “an association that has taken on the corporate form,” Justice Kennedy’s opinion declares, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”8 In Justice Kennedy’s view, corporations have rights not because they are persons but because corporations are comprised of people, and those people have rights that ought to be respected regardless of the use of the corporate form.
Citizens United, we will see, follows the approach the Supreme Court has typically taken to corporate rights controversies. Corporations have been winning constitutional protections since America’s earliest days, and the prevailing pattern has been for the Supreme Court to treat corporations as associations or to ignore the relevance of the corporate entity entirely. In the majority of cases extending constitutional rights to corporations, the Court tends to portray corporations as simply groups of people who have come together for a common purpose.9 While the Supreme Court has occasionally referred to corporate personhood, the associational understanding of the corporation has been far more influential in justifying the extension of constitutional rights to corporations. Because the courts look through the corporate veil and base the constitutional analysis on the members of the corporation—or sometimes on the rights of other people—corporate entities are afforded nearly all the same rights as people. The personhood of the corporation, however, plays little role in these cases.
Surprisingly, in the handful of cases when the Supreme Court has embraced the principle of corporate personhood, the result has usually been to limit the rights of corporations. When the corporation is taken to be a person in its own right, separate and apart from its members, it is often accorded lesser and fewer rights than ordinary people; a corporate person is not equal to a human person. Rather than justify expansive rights for corporations, corporate personhood historically has had the opposite effect, invoked most frequently in judicial decisions that restrict the range of corporate rights claims. When courts recognize corporations as legal persons, they treat them as having rights of their own instead of affording them the same rights as their members have as individuals. And because corporations are special types of legal persons, they should only have those rights appropriate for corporate persons.
I. Corporations as Legal Persons
What is corporate personhood? For all the criticism of corporate personhood in the controversy over Citizens United, it is easy to overlook the fact that corporate personhood is an ancient and well-established principle in business law. More than 250 years ago, before the birth of the United States, William Blackstone in his influential Commentaries on the Law of England described the corporation as an “artificial person.”10 Open up any introductory law school textbook on corporate law or business associations and one of the very first lessons will be that corporations are legal persons. “One of the law’s most economically significant contributions to business life,” writes Robert Charles Clark in his popular Corporate Law textbook, “has been the creation of fictional but legally recognized entities or ‘persons’ that are treated as having some of the attributes of natural persons.”11
To say that corporations are legal persons is not to make an existential claim that corporations are just like human beings. It is, rather, a claim that for certain legal purposes, a corporation is an independent entity in the eyes of the law. Independence is key: the corporation’s powers and rights belong to the corporation and are separate and distinct from the powers and rights of the corporation’s members. As the Supreme Court has recognized, the “basic purpose” of incorporation is “to create a legal entity distinct from those natural individuals who created the corporation, who own it, or whom it employs.”12 Former Delaware Chief Justice Leo Strine, a leading expert on corporate law, and his co-author Nicholas Walter write that the “whole point of corporate law” is to make the corporation “a distinct entity that is legally separate from its stockholders, managers, and creditors.”13
This legal separation between the corporate entity on the one hand and its members on the other was one of the basic motivations for the development of the corporation. The earliest prototype of the corporation was the societas publicanorum, which arose in ancient Rome about three hundred years before Christ.14 Roman law had already recognized partnerships, which allowed people to join together to pursue common callings, including business activities. But partnerships were unstable because the property managed by the partnership was still owned by the individual partners. Whenever one partner would die, become insolvent, or transferred an ownership interest, the whole partnership had to be reorganized. In a time of short life spans, the constant disruption led business people to seek out an alternative business form that was more stable and durable.
The societas publicanorum was Roman law’s answer. It was allowed to own property and form contracts in its own name – not in the names of its partners.15 As a result, it did not have to be reorganized any time one of the people who had pooled money into the enterprise exited. The investors could come and go, but the societas publicanorum would carry on. This early version of the corporation became popular and was used for mining, shipbuilding, public works projects, and tax collection.16
In the centuries that followed, organizations that were not businesses also found the corporate form attractive for that same independence of identity. Collective groups that wanted to lock in capital and hold property over time sought to create a legal distinction between the property of the entity and that of its members. The Catholic Church, for example, wanted to be able to own property in the name of the church, not the names of the particular people who held positions of authority within the church.17 The City of London was incorporated, as many municipalities are in the United States today, in order to possess property and form contracts in the city’s name.18 Oxford University, English guilds, and even the King of England were all described as corporations.19
The legal separation between the members and the corporate entity remains a staple of business law today. If someone slips and falls at a Starbucks, that person cannot bring a lawsuit against the individual shareholders who hold Starbucks stock. If that person were to sue, the lawsuit would have to be against the corporate entity itself, the Starbucks Coffee Company.20 The shareholders are not personally liable for the company’s wrongdoing, nor are they legally responsible for any debt or judgment against the company. The company is its own legal person, with an independent standing in the eyes of the law. It has its own debts, in its own name, that it pays out of its own property.
In addition to independence of identity, another attractive feature of the corporate form was the ability to exercise at least some legal rights. In his Commentaries, Blackstone explained that “personal rights die with the person” so “it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued” to form corporations.21 Blackstone wrote that corporations always had “many powers, rights, capacities, and incapacities” and that certain rights were “necessarily and inseparably incident to every corporation.”22 Among the corporate rights recognized by Blackstone were the right to own property (to “purchase lands, and hold them”), the right to form contracts (to “bind the corporation”), and the right of access to court (to “sue or be sued . . . by its corporate name”).23
Unlike a partnership, a corporation owned property as a legal person. The property did not belong to the members; they may have supplied the capital as investors, but the capital was locked into the corporation.24 The property belonged to the entity, and only the entity had the legal authority to use or dispose of it. When a corporation formed a contract, it bound the entity, not the members personally; the entity had its own right to contract. And the members could not sue or be sued on behalf of the corporation; such lawsuits had to be brought by or against the corporation. Corporate personhood meant that corporations were independent entities under the law, with their own rights and duties, wholly separate and distinct from the rights and duties of their members.
II. The Expansion of Corporate Rights
Given that Blackstone identified these three legal rights—property, contract, and the right to sue—even before the founding of the United States, perhaps it should be no surprise that these were among the very first rights corporations sought under the Constitution. Yet the first corporate rights cases in the Supreme Court, decided two centuries before Citizens United, did not rely on corporate personhood. While the Court ruled in favor of the corporations’ claims of constitutional rights, the justices rejected a core principle of corporate personhood: that the rights and duties of corporations were separate and distinct from the rights and duties of their members. Instead, the Court extended to corporations those rights belonging to the corporations’ members.
A. The First Corporate Rights Case
Claims by corporations for constitutional rights are nothing new. The first Supreme Court case to ask explicitly if corporations had rights under the Constitution was decided in 1809.25 To add some perspective, the first Supreme Court case to ask whether African Americans had rights under the Constitution, the Dred Scott case, was not decided until 1857.26 The first Supreme Court case explicitly on the rights of women under the Constitution, Bradwell v. Illinois, was not decided until 1873.27 The Court ruled against the African American in Dred Scott and the woman in Bradwell, denying them their rights. A half century earlier, in the first corporate rights case, the Supreme Court went the other way, ruling for the corporation and granting it constitutional protections.
That corporation was the Bank of the United States, and it went to the Supreme Court seeking one of the three inherent corporate rights identified by Blackstone: the right of access to court. In the early 1800s, the Bank was perhaps the richest and most powerful corporation chartered in the United States.28 Although chartered by Congress, it was a for-profit business corporation that sold shares to the public and was managed by a board of directors that were accountable to investors.29 The United States government was the largest shareholder and held seats on the board30 but the Bank resembled what Americans today would call a private business. At a time when most corporations were small and of local concern, the Bank was a national business, headquartered in Philadelphia with branches from New Orleans to Boston.31
Unhappy with the Bank, Jeffersonians in Georgia passed a law taxing the Savannah branch.32 The Bank refused to pay, prompting a tax collector named Peter Deveaux to seize the funds. The Bank then filed suit in federal court challenging the Georgia law and seeking to recover the money seized by Deveaux. The Bank’s primary claim was that the state of Georgia did not have the authority to tax the Bank, which was created by Congress. These facts may seem familiar to constitutional law students because they mirror those of McCulloch v. Maryland, on whether a state can tax a federal bank.33 McCulloch, decided a decade later, only remained to be decided because the Supreme Court in Bank of the United States v. Deveaux focused on a different question: whether a corporation could sue in federal court under Article III.
The Bank’s case required the Supreme Court to decide whether corporations could invoke diversity jurisdiction under Article III, section 2, which promises access to federal courts in cases “between Citizens of different states.”34 Although the text would seem to exclude corporations, who are not generally thought to be citizens, the Supreme Court ruled in favor of the Bank. Writing for the majority, Chief Justice John Marshall admitted that a corporation was “certainly not a citizen.”35 Yet, this did not resolve the matter, according to Marshall, because the Constitution should be read expansively. “A Constitution, from its nature, deals in generals, not details. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of “broad and general principles.”36
Employing this early version of living constitutionalism, Marshall then extended Article III’s protections for citizens to corporations because of their members. “Substantially and essentially, the parties in such a case” are the “members of the corporation.”37 Marshall explained that the individuals who associate together within the corporation were citizens. It was the Court’s duty to “look beyond the corporate name and notice the character of the individual” behind it.38 In short, the corporation had the right to sue in federal court because its members had that right. The rights of the corporate entity were derivative of the members’ rights.39
Had the Court embraced rather than rejected corporate personhood, the outcome might well have been different. Indeed, in an effort to defeat the Bank’s claims, Deveaux’s counsel emphasized corporate personhood to restrict and limit the rights of corporations. He argued it was inappropriate for the Court to “raise the veil which the corporate name interposes, and see who stand behind it.”40 The case was brought by a corporation “in the corporate name” to recover the property belonging solely to the corporation.41 The members of the corporation “expressly averred themselves to be a body corporate, and to sue in that capacity.”42 When it came to legal rights, a corporation cannot “derive aid from the personal character of its members; nor does it incur any disability from [their] disabilities.”43 The citizenship status of the individual members of a corporation was irrelevant. The corporation was an independent entity in the eyes of the law. To sue under Article III, the corporation itself must be a citizen.
Rejecting the core tenet of corporate personhood—the separation of the rights and duties of the corporate entity from those of its members—Bank of the United States v. Deveaux set a foundation for two hundred years of corporate rights cases to come. The Supreme Court ruled in favor of the corporation, granting it rights under a textual provision of the Constitution that by its terms applied only to citizens. Moreover, the Court did not justify its decision by insisting that corporations were people. It was the opponent of corporate rights that argued for corporate personhood: recognizing the independent legal identity of the corporation, wholly apart from its members. The Court instead looked right through the corporate entity and based the decision on the rights of the corporation’s members. In the Court’s view, a corporation was an association, not a person.
B. Property Rights
Numerous Supreme Court decisions expanding constitutional rights to corporations followed Bank of the United States v. Deveaux. These decisions also tended to ignore the separate legal identity of the corporation and collapse the rights of the members into those of the corporation.
In 1819, the Supreme Court held that corporations had property rights protected from infringement by the Constitution’s Contract Clause in Dartmouth College v. Woodward.44 The case arose out of a struggle for control of Dartmouth, which was formed as a corporation, after the passing of the school’s founder, Eleazar Wheelock.45 His son, John Wheelock, was named to run the college but was eventually ousted by the school’s trustees. Wheelock, however, had many friends in New Hampshire politics, and the state legislature passed legislation that amounted to a hostile takeover. The new laws revised Dartmouth’s corporate charter to expand the board of trustees, create a new board of overseers, and give the governor the power to appoint trustees.
Represented by the legendary Daniel Webster, the original trustees challenged the new laws. They argued the reforms were unconstitutional due to the provision in Article I, section 10 of the Constitution, which prohibits states from passing any law “impairing the Obligation of Contracts.”46 The corporation’s charter was a contract negotiated with New Hampshire, they claimed, and so was not subject to unilateral revision by the government. Perhaps influenced by Marshall’s reasoning in Deveaux, Webster did not base his argument on corporate personhood. Instead, he insisted that this case was about “the rights of the individuals who compose” the corporation.47 “The twelve trustees were the sole legal owners of all the property” and the new laws impinged upon “the legal rights, privileges, and immunities which belong to them, as individual members of the corporation.”48
The Supreme Court agreed. Marshall’s opinion is sometimes viewed as embracing corporate personhood,49 especially his description of a corporation as “an artificial being, invisible, intangible, and existing only in contemplation of law.”50 At one point in the opinion, Marshall suggests that corporations are a means “by which a perpetual succession of many persons are considered as the same, and may act as a single individual.”51 Yet Marshall quickly returns to the pass-through approach of Deveaux and justifies the decision as necessary to protect the rights of the people behind the corporation. The New Hampshire laws infringed on the authority of the trustees guaranteed in the charter and violated the property rights of the donors who contributed to the corporation. It was not that the corporation had rights of its own, equivalent to those of individuals; the corporation is the “assignee of [the donors’] rights” and “stands in their place.”52
When Marshall referred to the corporation as “artificial” and “existing only in contemplation of law,” he was explaining why the case should not be decided on the basis of the separate legal personality of the corporations; the corporation was an ephemeral, fictional entity, not a person with rights of its own.53 Instead, the case should be decided on the basis of the members’ rights, because they were the ones who Marshall saw as the real parties involved.
C. Equal Protection of the Laws
TA controversial, even bizarre, expansion of corporate rights came out of a series of Supreme Court cases in the 1880s involving the Southern Pacific Railroad. After California adopted a special tax rule for property owned by railroads, the Southern Pacific in a series of cases challenged the law as a violation of the Fourteenth Amendment equal protection and due process clauses.54 The Supreme Court would ultimately hold that corporations were entitled to Fourteenth Amendment protections,55 although corporate personhood would play an ambiguous and easily exaggerated role.
Without doubt, the Southern Pacific’s cases raised the question of whether a corporation was a “person” under the text of the Fourteenth Amendment, which prohibits states from denying to any “person” due process and equal protection of the laws. While that amendment was adopted after the Civil War to protect the rights of the freedmen, Southern Pacific argued it also protected business corporations. Roscoe Conkling, Southern Pacific’s lead lawyer in the first of two Southern Pacific cases, San Mateo County v. Southern Pacific Railroad Co.,56 claimed that corporations were persons: “[T]he Southern Pacific Railroad Company and its creditors and stockholders are among the ‘persons’ protected by the Fourteenth Amendment to the Constitution of the United States.”57
Conkling had unusual credibility with the Justices. He had been twice nominated to sit on the Supreme Court himself, most recently in the spring of 1882, the same year he appeared before the Court in the San Mateo County case.58 He was confirmed by the Senate but declined the seat; he remains the last person to refuse a Supreme Court appointment after being confirmed.59 Moreover, as a young congressional representative, Conkling had served on the committee that drafted the Fourteenth Amendment.60 Conkling suggested he and his fellow committee members drafted the amendment to protect corporations. The committee, he said, had changed the proposed text, which originally guaranteed equal protection to “citizens of the United States,” to guarantee rights to every “person.”61 In law, the word person “has by long and constant acceptance, and by multiplied judicial construction, been held to embrace artificial persons as well as natural persons.”62 “The American people, in giving [The Fourteenth Amendment] their imprimatur understood what they were doing, and meant to decree what has, in fact, been decreed.”63 Conkling supported his account by producing an old journal that purported to be an unpublished record of the deliberations of the Fourteenth Amendment’s drafting committee.64
Although the somewhat suspicious journal was in fact an unpublished record of the drafting committee’s deliberations, it did not provide the evidence Conkling suggested. Howard Jay Graham, a legal historian who thoroughly studied Conkling’s argument in the San Mateo County case, found that the committee had never revised the Equal Protection Clause from “citizens” to “person,” as Conkling claimed.65 And none of the other drafters had ever suggested that corporations were covered by the amendment, either during the hotly contested and much publicized ratification debates or after. Graham concluded that Conkling, a trusted lawyer of outstanding reputation, had engaged in “a deliberate, brazen forgery” to win new rights for corporations.66
The Court never issued a final ruling in the San Mateo County case, holding onto it for three years until Southern Pacific unexpectedly settled the case.67 One is tempted to speculate that the Justices discovered the misconduct, but it remains uncertain. Nonetheless, the Southern Pacific had another case against another California county raising the same Fourteenth Amendment question ready for Supreme Court review: Santa Clara County v. Southern Pacific Railroad Co.68 With Conkling no longer involved, the railroad corporation’s lawyers continued to argue that corporations were covered by the Equal Protection Clause. The Court ruled in favor of the railroad but on state law, not constitutional, grounds. The majority opinion explained that “it is not necessary to consider any other questions,” including the “grave questions of constitutional law” relating to corporations and the Fourteenth Amendment.69
One justice, Stephen Field, was particularly unhappy with the Court’s avoidance of the corporate rights question. Riding circuit, Justice Field had authored the lower court opinions in both San Mateo County v. Southern Pacific Railroad Co. and Santa Clara County v. Southern Pacific Railroad Co., ruling that corporations were covered by the Equal Protection Clause.70 In a companion case decided by the Supreme Court on the same day as Santa Clara County, Field wrote separately to criticize his colleague’s avoidance of the corporate rights question. “At the present day, nearly all great enterprises are conducted by corporations,” wrote Field. 71 “Hardly an industry can be named that is not in some way promoted by them, and a vast portion of the wealth of the country is in their hands.”72 He expressed “regret that it has not been deemed consistent with [the Court’s] duty to decide the important constitutional questions involved, and particularly the one which was so fully considered in the circuit court.”73
Although Field and the other justices all understood that the Santa Clara County Court did not decide whether corporations had Fourteenth Amendment rights, that fact eluded the Supreme Court’s Reporter of Decisions. In the summary of the Santa Clara County opinion published in the official volumes of the United States Reports, the first sentence describes the Court’s holding: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.”74 And the Reporter added an unusual headnote just before the first lines of the Court’s opinions reporting that the Chief Justice had said at the beginning of oral argument that the “Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.”75 As a result, the Santa Clara County case has mistakenly been cited in numerous cases for holding precisely what Field and the other justices explicitly said it did not: that corporations are protected by the Fourteenth Amendment.76
A few years after Santa Clara County, Field wrote the majority opinion upholding double liability on railroads for damage to livestock in Minneapolis & St. Louis Railway Company v. Beckwith. 77 Although it was unnecessary given the outcome of the case, Field went out of his way to address corporate rights under the Fourteenth Amendment. “It is contended by counsel as the basis of his argument, and we admit the soundness of his position, that corporations are persons within the meaning of the clause in question. It was so held in Santa Clara County v. Southern Pacific Railroad.”78 Although Field’s statement was obviously incorrect about the holding of Santa Clara County, the justices ultimately agreed that corporations were protected by the Fourteenth Amendment.
Indeed, in the more than 140 years since Santa Clara County, all but three or four of the Justices who have sat on the Supreme Court have agreed that corporations have rights under the Fourteenth Amendment. Yet, to this day, there has never been an opinion of the Court explaining why corporations are covered by the Fourteenth Amendment. It is thus somewhat hard to say how corporate personhood influenced the extension of these rights. Much of the argument by the lawyers in the Southern Pacific Railroad cases emphasized personhood: whether a corporation was a “person” under the text of the amendment. Field specifically embraces this conclusion too in Minneapolis & St. Louis Railway Company, although without explanation in one passing sentence.
For Field, however, personhood was little more than a textual hook. In his lower court opinions in the Southern Pacific Railroad cases, Field rejected the core tenet of corporate personhood, independence of identity. The court, he wrote, should not look to “the name under which different persons are united, but to the individuals composing the union.”79 Taking Chief Justice Marshall’s approach from Bank of the United States v. Deveaux, Field insisted that the true parties were the “members” of the corporation who “do not, because of such association, lose their rights to protection.”80 Corporations had Fourteenth Amendment rights not because corporations were equivalent to people but because corporations were comprised of actual people who had rights that would be burdened by business regulation.
Legal historians who have studied the Southern Pacific Railroad cases have generally rejected the idea that Santa Clara County turns on corporate personhood, despite the textual reliance on “persons.” Morton Horwitz argues that the doctrinal development of corporate rights at this time was not “a dramatic example of judicial personification of the corporation.”81 Instead, Horwitz, Greg Mark, and others contend that the lawyers and justices of the era emphasized a “partnership” theory of the corporation that looked right through the corporate veil and based corporate rights on the rights of the members.82 So while corporate personhood certainly played some role, at least as a textual matter, in the Santa Clara County line of cases, the Court never explicitly embraced any overarching theory of the corporation to justify the extension of Fourteenth Amendment rights. And the explanation we have from Field rested on a theory that denied the fundamental separation between the corporate entity and its members.
D. The Freedom of Association
The Supreme Court first held that corporations have a freedom of association under the First and Fourteenth Amendments in NAACP v. Alabama ex rel. Patterson, decided in 1958.83 Although, as we will see in the next section, the Court had previously declined to extend such a right to corporate entities in the early 1900s, the Southern effort to disable the National Association for the Advancement of Colored People (NAACP) during the Civil Rights Era pushed the justices to reverse course. The NAACP was not a business, of course, but it was formed as a corporation.84 And it was the NAACP’s corporate status that Alabama targeted in an effort to push the organization out of the state.
After the NAACP won Brown v. Board of Education, elected officials in Alabama set out to prohibit the NAACP from operating within the state. The state sued the NAACP claiming the organization had failed to register as an out-of-state corporation as required by state law.85 Alabama required that “foreign” corporations doing business in the state file a copy of their articles of incorporation and identify a local agent for service of process. The NAACP had never made these filings in the belief that, as a voluntary membership organization rather than a business, it was not covered.86 Once sued, the NAACP offered to provide this information to the court, but the judge ordered the organization to turn over its membership list too. 87 Fearing persecution of its members, the NAACP refused and was held in contempt. The Supreme Court overturned the contempt finding on the ground that the requirement to reveal the NAACP’s membership list violated the NAACP’s freedom of association.88
In its briefs, the NAACP argued that the mandated disclosure would violate both the rights of the individual members and the entity’s “own right of freedom of association.”89 Alabama in its briefs argued vigorously that the case was about the NAACP’s status as a corporation: “A corporation, being an artificial entity, is subject to the restraints of the police power more than a natural person and has fewer rights.”90 The Court’s opinion, however, focused on the rights of the NAACP’s members. Without directly addressing whether the NAACP, as an entity, had its own freedom of association, the Court said the NAACP was an appropriate party to protect the rights of the people who have joined the organization—even while recognizing that the controlling doctrine “has generally insisted that the parties rely only on constitutional rights which are personal to themselves.”91 Nonetheless, given that people join the NAACP “to make more effective the expression of their own views,” the Court said there was a special “nexus” between the NAACP and its members that made the two “in every practical sense identical.”92
NAACP v. Alabama ex rel. Patterson remains a landmark case on freedom of association—for individuals and corporations. Once again, the Supreme Court expanded corporate rights, but not because corporations were people. Rather, as it has in the past, the Court all but ignored the separateness of the corporate entity and simply viewed the case as involving an association of individuals that happened to use the corporate form. And while that approach seems justified in the context of a voluntary membership organization like the NAACP, the Court has employed it in numerous corporate rights cases that involved ordinary for-profit businesses too.
E. Political Speech Rights
More than thirty years before Citizens United, the Supreme Court first held that corporations had political speech rights under the First Amendment in First National Bank of Boston v. Bellotti, decided in 1978.93 Massachusetts had prohibited corporations from spending money on certain ballot measure campaigns, and a group of politically active companies challenged the law.94 Writing for a 5-4 majority, Justice Lewis Powell Jr. struck down the Massachusetts law as a violation of business corporations’ freedom of speech.95 Although the Court justified the decision on different grounds from the cases discussed above, once again, corporate personhood was irrelevant to the Court’s reasoning.
“The proper question therefore is not whether corporations ‘have’ First Amendment rights and, if so, whether they are coextensive with those of natural persons,” wrote Powell.96 The case did not turn on whether corporations were just like people under the law and enjoyed the same rights. “Instead, the question must be whether [Massachusetts’s law] abridges expression the First Amendment was meant to protect.”97 Because the Massachusetts law restricted political speech valuable to the voting public, it was unconstitutional regardless of the identity of the speaker. The speech itself was protected.
Commentators have criticized the majority opinion in Bellotti for failing to grapple with the identity of the speaker. According to Daniel Greenwood, Bellotti (and a handful of other Supreme Court decisions from the 1970s) transformed the First Amendment “to a protector of ‘speech’” rather than a guarantee of freedom to human beings.98 Instead of protecting the speech right of individual people, the Court expanded the First Amendment to encompass “disembodied notions of the ‘free flow of information.’”99
Unlike earlier decisions that expanded constitutional protections for corporations, Bellotti did not focus on the rights of the people inside the corporation. Yet, like those earlier decisions, the Court once again reasoned from the premise that the corporate entity was essentially irrelevant to the analysis. The Court did not say that corporations were just like people and enjoyed the same rights as individuals. Instead, the Court emphasized that the substance of the speech was protected, and the identity of the speaker made no difference. In the end, of course, the ruling effectively gave corporations the same free speech rights as individuals. But the logic and reasoning did not depend on corporate personhood.
F. Citizens United v. Federal Election Commission
Considering how the Supreme Court’s decision in Citizens United sparked intense protests, many of which blamed corporate personhood for the expansion of rights to business corporations, it is surprising that the notion of corporate personhood is nowhere to be found in the Court’s opinion. The Court, which struck down a provision of federal campaign finance law restricting corporations from using general treasury funds to finance election ads in the weeks before an election,100 surely expanded the free speech rights of corporations to include speech about candidate elections. Yet, personhood had little to do with it.
As mentioned in the Introduction, Justice Anthony Kennedy’s majority opinion does not mention corporate personhood, and his reasoning does not depend on any unarticulated notions of corporate personhood. Like the earlier Supreme Court decisions broadening the rights of corporations, Citizens United focuses on the rights of the people who associate together within the corporate form. The decision describes a corporation as an association of people who simply use the corporate form. According to Justice Kennedy, the challenged law targeted “disfavored associations of citizens—those that have taken on the corporate form.” 101 Once again, corporations were not envisioned as individuals or people with the same rights. Rather, the corporation was merely a cover under which an association of people operated, and it was those people whose rights were being protected by the Court.
The Supreme Court in Citizens United also said that political speech was protected regardless of its source, echoing Bellotti. “The First Amendment protects speech and speaker, and the ideas that flow from each,” explained Kennedy’s majority opinion.102 “Political speech is indispensable to decisionmaking in a democracy and this is no less true because the speech comes from a corporation rather than an individual.”103 Indeed, the Court wrote that the First Amendment prohibited the government from “distinguishing among different speakers, allowing speech by some but not others.” 104 Although the Court would not maintain adherence to that principle—two years later, the Justices summarily affirmed a lower court ruling upholding a ban on political contributions and expenditures by foreign nationals residing in the United States105—it nonetheless served as a justification for corporate rights in lieu of the idea that corporations are people.
G. Religious Liberty
Along with Citizens United, the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.106 helped to bring the controversy over rights for corporations to the forefront of political and legal debate. The Court in Hobby Lobby held that corporations had religious liberty rights under a federal law, the Religious Freedom Restoration Act (RFRA), and were permitted to opt out of a requirement to cover birth control in employee health insurance plans.107 The case was not a constitutional law case; nevertheless, it involved the same fundamental value of religious liberty that motivates the First Amendment. And, importantly for our purposes, it largely followed the pattern in corporate constitutional rights cases. The Court looked right through the corporate entity and granted legal rights to corporations based on the rights of the corporation’s members.
Corporate personhood nonetheless plays a role in Justice Samuel Alito’s majority decision in Hobby Lobby. For purposes of the RFRA, the Court held that corporations are indeed “persons” protected by the statute’s provision that promises the federal government “shall not substantially burden a person’s exercise of religion” absent compelling reasons.108 The Court agreed that business corporations fit under this provision because of another federal law, the Dictionary Act, which defines the terms used in federal statutes: “Under the Dictionary Act, ‘the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals . . . .’”109 Thus, at least for purposes of RFRA, corporations were people.
Although the Court says corporations are persons under RFRA, the Court’s reasoning quickly abandons the core tenet of corporate personhood: that a corporation is an independent legal entity with rights and duties wholly separate and apart from those of its members. While recognizing that for-profit corporations cannot themselves exercise religion, the Court held that the law burdened the religious beliefs of the Green family, the owners of Hobby Lobby. “[A]llowing Hobby Lobby . . . to assert RFRA claims protects the religious liberty of the Greens . . . .”110 Indeed, the Court suggests that looking through the corporate form and focusing on the owners of enterprises is necessary. “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”111
Instead of treating the corporation as its own legal entity with its own rights, the Court in Hobby Lobby rejected the legal principles that inform corporate personhood. While the Court extended a legal right to a corporation, the reason was to protect the rights of the people behind the corporation. Of course, the legal mandate to cover birth control did not fall on the Greens as individuals; they were not required to cover birth control, the corporation was. If there was any liability for failure to include birth control coverage, it would be imposed on the corporation, not the members of the Green family. If a customer slipped and fell at a Hobby Lobby store, any liability would be borne by the corporate entity, not the members of the Green family. Indeed, the Green family would surely insist they were not personally liable because of corporate personhood; they are separate legal persons, with separate rights and duties than the entity. When it came to expressions of the Greens’ religious beliefs, however, the Greens insisted— and the Court agreed—that they and the corporation were one and the same.
III. Personhood as a Justification for Limiting Corporate Rights
Over the two hundred years that the Supreme Court has been hearing corporate rights cases, the justices have occasionally voiced support for corporate personhood. Yet, when the Court has embraced corporate personhood—saying that corporations are legal persons who stand separate and apart from their members—the result has often been to limit or restrict the rights of corporations as compared to ordinary people. When the Court takes the corporate entity seriously, rather than all but ignoring it, the justices tend to see that the corporate person is fundamentally different than an ordinary person, warranting rights of lesser scope. Corporate personhood, in other words, has had precisely the opposite effect than what some critics of Citizens United imagine.
A. Privileges and Immunities
The first case reflecting this pattern was Bank of Augusta v. Earle, decided in 1839.112 The case involved a challenge to a type of law common in the nineteenth century, when states often imposed special conditions on out-ofstate, or “foreign,” corporations seeking to do business there: taxes, license fees, bond requirements, and even outright prohibitions.113 Today states use labor laws, workplace safety laws, consumer protection laws, and Blue Sky laws to regulate such businesses. During the early to mid-1800s, however, corporations were regulated almost exclusively through their corporate charters. 114 That meant that no states other than the home state of the corporation had much influence on the corporation’s behavior. Instead, states imposed special conditions on out-of-state corporations to protect their residents from unscrupulous companies (or, in some cases, competition). Corporations seeking to take advantage of the increasingly national marketplace of the era challenged these special conditions as a violation of the Constitution.
In Bank of Augusta, the Supreme Court affirmed the right of states to impose special conditions on foreign corporations.115 When a group of banks tried to collect on a loan they had made to some Alabama residents, the Alabamians argued that the loans were invalid due to an Alabama law limiting certain banking operations in the state.116 The banking corporations involved argued that the law did not apply in these circumstances and, if it did apply, was unconstitutional under the Comity Clause of Article IV, section 2. That provision reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”117 The Comity Clause prohibits states from affording lesser rights to newly arrived immigrants from other U.S. states than they give to their own native citizens. The banks claimed that they too should be protected by the same principle and out-of-state companies should be allowed to operate on the same terms as local companies, without special conditions.
In the argument before the Supreme Court, the corporations invoked Bank of the United States v. Deveaux, which read “Citizens” in Article III to allow corporations to sue in federal court under diversity jurisdiction.118 The Court, they argued, should follow Deveaux and focus not on the citizenship of the corporate entity itself but on the citizenship of the corporation’s members. The ordinary people who managed and owned the corporation were themselves citizens entitled to move into states and do business without discrimination. Corporations “may do in their corporate character . . . all such acts, authorized by their charter, as the members thereof would have a right to perform as individuals.”119
The Court, however, broke from Deveaux and refused to “look behind the act of incorporation and see who are the members” of the corporation.120 Instead, the Court explained that corporations were legal persons with legal rights and duties separate and distinct from the legal rights and duties of the members. A corporation “is a person for certain purposes in contemplation of law,” Chief Justice Roger Taney’s opinion explained.121 “Whenever a corporation makes a contract, it is the contract of the legal entity; of the artificial being created by the charter; and not the contract of the individual members.”122 A corporate person may have legal rights under its stateissued charter but the “only rights it can claim are the rights which are given to it in that character, and not the rights which belong to its members as citizens of a state.” 123 In Taney’s view, corporate personhood did not translate into equal rights for corporations. Instead, corporate personhood meant that the corporation was a separate legal entity, with distinct, different, and lesser rights.
Taney noted that stockholders enjoy the separation guaranteed by corporate personhood when it comes to corporate liability. Limited liability for stockholders meant the members of the corporation were not personally responsible for the corporation’s debts. If, however, “the members of a corporation were to be regarded as individuals carrying on business in their corporate name . . . it is very clear that they must at the same time take upon themselves the liabilities of citizens and be bound by their contracts in like manner.”124 The members could not claim the protections of limited liability but ignore the legal separation between the entity and its members when it came to making contracts across state lines. “The result of this would be to make a corporation a mere partnership in business, in which each stockholder would be liable to the whole extent of his property for the debts of the corporation,” the Court explained.125
Bank of Augusta v. Earle is the first Supreme Court case to reject categorically the extension of a particular constitutional protection to corporations. Corporate personhood, rather than leading the Court to give corporations equal rights to individuals, was used for precisely the opposite purpose. The Court relied on corporate personhood to explain why corporations should have fewer rights than ordinary human beings.
B. Fourth and Fifth Amendment Rights
Hale v. Henkel126 arose out of President Theodore Roosevelt’s famous effort to break up the trusts. Among his targets was the tobacco trust. When his Justice Department subpoenaed officers of the companies involved in the tobacco trade to testify and provide evidence to a grand jury, the corporations objected. They argued that requiring their own officers to testify against the companies was a violation of the corporations’ Fifth Amendment right against self-incrimination.127 Requiring them to provide evidence, such as business records and contracts, was also a violation of the corporations’ Fourth Amendment right to be free from unreasonable searches and seizures, they claimed.128 In 1906, the Supreme Court issued a split decision, holding that corporations had the Fourth Amendment right against unreasonable searches but not the Fifth Amendment right against self-incrimination.129
The Court’s opinion, written by Justice Henry Billings Brown, the author of the notorious Plessy v. Ferguson,130 is not exceptionally clear and coherent. Indeed, the Court seems to take two inconsistent approaches to corporate rights within the same case. In the Fourth Amendment discussion, where the Court finds corporations are protected, the Court follows cases like Bank of the United States v. Deveaux and describes corporations as associations that simply exert the rights of their members: “A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body, it waives no constitutional immunities appropriate to such body.”131
In the discussion of whether corporations have a Fifth Amendment right against self-incrimination, corporate personhood appears to play a more prominent role. Although Justice Brown initially says the “question of whether a corporation is a ‘person’ . . . really does not arise,”132 he then turns to the core tenets of corporate personhood to explain why corporations do not have the right against self-incrimination. First, the Court recognizes a strict, formal legal separation between the entity and its members. The Court said that while Edwin Hale, the company officer called to testify, had a right not to incriminate himself, Hale could not assert the right to avoid incriminating a third party—in this case, the corporation. The Fifth Amendment “was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person. . .”133 The Court could have said instead that the corporation is just an association of people and requiring any of those associated to testify compels a form of self-incrimination. Yet, the Court here treated the corporation as distinct from members, including the people who worked for the company. The Court treated the corporation as a separate legal person. “The Amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself, and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation.”134 As legal scholar Peter Henning notes, Hale’s Fifth Amendment analysis turned on the idea that “the corporation existed apart from its agents.”135
Second, the Court’s Fifth Amendment discussion emphasized the “clear distinction in this particular between an individual and a corporation”:
The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him.136
But a corporation is fundamentally different than an ordinary person: “[T]he corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law.”137 Like the Court in Bank of Augusta v. Earle, which used the unique corporate privilege of limited liability to distinguish between people and corporations, the Hale Court insisted that, “[w]hile an individual may lawfully refuse to answer incriminating questions . . . it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.”138
Hale v. Henkel thus seems to reflect the larger pattern in the corporate rights jurisprudence: cases expanding corporate rights tend to view the corporation as nothing more than an association of people capable of exerting the members’ rights, while cases limiting corporate rights tend to embrace the idea that a corporation is a separate legal person with distinct rights from those of its members. The oddity is that both these views operate in the same case and the Court’s logic seems to flip when shifting from one right to another.
C. Berea College v. Kentucky
Another case denying corporations a constitutional right is Berea College v. Kentucky.139 Although the Court’s opinion in Berea College does not take an explicit position on whether a corporation should be thought of as an association or a separate legal person, the reasoning of the opinion resonates with elements of corporate personhood. The case involved a racially integrated college that challenged a Kentucky law prohibiting the teaching of whites and racial minorities together. 140 The college claimed the law infringed on its fundamental rights of property, due process, and association. The Court, however, ruled against the college.141
The Court’s opinion, written by Justice David Brewer, emphasizes that the corporate entity is fundamentally different than an ordinary person or an association of people.142 The Court noted that the Kentucky law explicitly barred “any person, corporation or association of persons” from operating any racially integrated college.143 In considering the constitutionality of the law, the Court insisted it was necessary to break it up into its distinct parts: “The act itself, being separable, is to be read as though it, in one section, prohibited any person, in another section any corporation and, in a third, any association of persons to do the acts named.”144 The underlying reason for the distinction between persons, corporations, and associations was that the law might well be invalid when applied to persons or associations, even though it was constitutional as applied to corporations: “In creating a corporation a state may withhold powers which may be exercised by and cannot be denied to an individual. It is under no obligation to treat both alike.”145 Although corporations might be made up of people, the corporation did not automatically take on the members’ rights. “In granting corporate powers the legislature may deem that the best interests of the state would be subserved by some restriction, and the corporation may not plead that, in spite of the restriction, it has more or greater powers because the citizen has.”146
Berea College does not say that corporations are people and thus entitled to fewer rights because of corporate personhood. Yet, the Court did draw a strong distinction between corporations on the one hand and individuals and associations on the other, and that distinction was crucial to the Court’s reasoning. And, once again, when the Court approached corporations as legal persons, with distinct rights from their individual members, the corporations ended up with fewer rights than ordinary people.
CONCLUSION
While critics of Citizens United have condemned the principle of corporate personhood, the Court rarely relies on corporate personhood to justify the extension of constitutional rights to corporate entities. Rather, the Court has typically based the rights of corporations on the rights of others, most often the members of the corporation. When, however, the Court relies on the core tenets of corporate personhood—that the corporation is an independent entity, with rights and duties separate and distinct from those of its members—the Court usually affords corporations fewer or lesser rights than ordinary individuals.
When courts take seriously the principle that the corporate entity is independent and legally separate from its members, this opens up the possibility that courts will focus on what Greenfield recommends: the nature of the particular corporation before a court. As Greenfield recognizes, there are many different kinds of corporations. There are for-profit corporations, some of them publicly held and others closely held. There are media corporations. There are charitable organizations, voluntary membership associations, and not-for-profit hospitals and schools that take the corporate form. The Court’s current way of approaching corporate rights questions does not distinguish among these different organizations easily: they are all, in varying degrees, associations of ordinary people. If, however, the courts distinguish the corporate entity from its members and ask which rights that particular type of corporation should have, then a business corporation like Exxon will not necessarily have the same rights as a voluntary membership association like Common Cause, even if both are corporations.
Of course, focusing on the corporate entity as an independent legal person and asking which rights that type of corporate person should have does not guarantee that judges will reach the right conclusion in every corporate rights case. But at least the judges would be asking the right question.
*✕Connell Professor of Law, UCLA School of Law.
1✕KENT GREENFIELD, CORPORATIONS ARE PEOPLE TOO (AND THEY SHOULD ACT LIKE IT) (2018).
2✕558 U.S. 310, 365 (2010).
3✕573 U.S. 682, 736 (2014).
4✕138 S. Ct. 1719, 1729 (2018).
5✕ADAM WINKLER, WE THE CORPORATIONS: HOW AMERICAN BUSINESSES WON THEIR CIVIL RIGHTS xvi, 375 (2018). See generally, e.g., Heather Gautney, What Is Occupy Wall Street? The History of Leaderless Movements, WASH. POST (Oct. 10, 2011), https://perma.cc/X92Z-RNNR; Facts About Occupy Wall Street, OCCUPY WALL ST. (Oct. 28, 2019, 11:58 AM EST), https://perma.cc/6WS3-MK7G.
6✕Move to Amend’s Proposed 28th Amendment to the Constitution, MOVE TO AMEND, https://perma.cc/A98J-A84A (last visited Mar. 13, 20201).
7✕I developed some of these themes, too, in WINKLER, supra note 5.
8✕Citizens United, 558 U.S. at 349.
9✕In a few cases, the Supreme Court has extended rights to corporations in order to protect the rights of third parties, like the public at large. See Thomas W. Joo, Corporate Speech and the Rights of Others, 30 CONST. CMT. 335 (2015).
10✕1 SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 455 (1876).
11✕ROBERT CHARLES CLARK, CORPORATE LAW 15 (1986).
12✕Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 158 (2001).
13✕Leo E. Strine Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 NOTRE DAME L. REV. 877, 887 (2016).
14✕See Ulrike Malmendier, Law and Finance “at the Origin,” 47 J. ECON. LIT. 1076 (2009); ULRIKE MALMENDIER, Roman Shares, in THE ORIGINS OF VALUE: THE FINANCIAL INNOVATIONS THAT CREATED MODERN CAPITAL MARKETS 31 (William N. Goetzmann & K. Geert Rouwenhorst eds., 2005); ANDREW STEPHENSON, A HISTORY OF ROMAN LAW 371–74 (1912).
15✕See MALMENDIER, Roman Shares, supra note 14, at 32–33.
16✕Malmendier, Law and Finance, supra note 14, at 1087–88.
17✕See Paul G. Kauper & Stephen C. Ellis, Religious Corporations and the Law, 71 MICH. L. REV. 1499, 1504 (1973).
18✕JOHN MICKLETHWAIT & ADRIAN WOOLDRIDGE, THE COMPANY: A SHORT HISTORY OF A REVOLUTIONARY IDEA (2003) (describing the evolution of the Corporation of London).
19✕See Eric Enlow, The Corporate Conception of the State and the Origins of Limited Constitutional Government, 6 WASH. U. J.L. & POL’Y 1, 3–8 (2001); see also Frederic Maitland, The Crown as Corporation, 17 LAW Q. REV. 131, 134–35 (1901).
20✕See GREENFIELD, supra note 1, at 50 (describing the connection between personhood and liability).
21✕BLACKSTONE, supra note 10, at 186–87.
22✕BLACKSTONE, supra note 10, at 189.
23✕BLACKSTONE, supra note 10, at 190.
24✕See Margaret M. Blair, Locking in Capital: What Corporate Law Achieved for Business Organizers in the Nineteenth Century, 51 UCLA L. REV. 387 (2003) (discussing capital lock-in as a key feature of the corporate form).
25✕See Bank of United States v. Deveaux, 9 U.S. 61 (1809).
26✕See Dred Scott v. Sandford, 60 U.S. 393 (1857).
27✕KSee Bradwell v. Illinois, 83 U.S. 130 (1873).
28✕See generally Andrew T. Hill, The First Bank of the United States, FED. RES. HIST. (Dec. 4, 2015), https://perma.cc/3R4W-98A4.
29✕See generally id.
30✕See generally The First Bank of the United States: A Chapter in the History of Central Banking, FED. RES. BANK OF PHILA. (June 2009), https://perma.cc/9Z6H-5FCP.
31✕See Hill, supra note 28.
32✕See W. CALVIN SMITH, Banks, Law, and Politics: The Origins, Outcome and Significance of the Deveaux Case, in THE PROCEEDINGS OF THE SOUTH CAROLINA HISTORICAL ASSOCIATION 1991 at 9, 11 (1991), https://perma.cc/42PL-JHY4.
33✕Id.; McCulloch v. Maryland, 17 U.S. 316, 319 (1819).
34✕U.S. CONST. art. III, § 2; Bank of United States v. Deveaux, 9 U.S. 61 (1809).
35✕Deveaux, 9 U.S. at 86.
36✕Id. at 87.
37✕Id. at 87–88.
38✕Id. at 90.
39✕See Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 WM. & MARY L. REV. 1673, 1681 (2015).
40✕Deveaux, 9 U.S. at 75.
41✕Id. at 74.
42✕Id. at 75.
43✕Id.
44✕Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 518 (1819).
45✕See generally FRANCIS N. STITES, PRIVATE INTEREST & PUBLIC GAIN: THE DARTMOUTH COLLEGE CASE 1819 (1972) (providing background information on the legal dispute).
46✕U.S. CONST. art. I, § 10.
47✕Deveaux, 9 U.S. at 63–92; Dartmouth Coll., 17 U.S. at 555–56.
48✕Dartmouth Coll., 17 U.S. at 555.
49✕See, e.g., Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 UTAH L. REV. 1629, 1635, 1639 (2011).
50✕Dartmouth Coll., 17 U.S. at 636.
51✕Id.
52✕Id. at 642.
53✕Consider Marshall’s phrasing in the earlier Deveaux case: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and, consequently, cannot sue or be sued . . . .” Bank of U.S. v. Deveaux, 9 U.S. 61, 86 (1809).
54✕See Malcolm J. Harkins III, The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act, and the Corporate Person: How a Historical Myth Continues to Bedevil the Legal System, 7 ST. LOUIS U. HEALTH L. & POL’Y 201 (2014).
55✕See Pembina Consol. Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888).
56✕116 U.S. 138 (1885).
57✕APPENDIX TO THE JOURNALS OF THE SENATE AND ASSEMBLY OF THE LEGISLATURE OF THE STATE OF CALIFORNIA: VOLUME VIII (1889).
58✕See William F. Swindler, Roscoe Conkling and the Fourteenth Amendment, 1983 Y.B. S. CT. HIST. SOC’Y 46, 47 (1983).
59✕See Harkins, supra note 54, at 237.
60✕Harkins, supra note 54, at 237.
61✕Harkins, supra note 54, at 238.
62✕WINKLER, supra note 5, at 2; Transcript of Oral Argument at 12, County of San Mateo v. S. Pac. R.R. Co., 116 U.S. 138 (1885) (No. 1063).
63✕WINKLER, supra note 5, at 133.
64✕Harkins, supra note 54, at 237–38.
65✕See HOWARD JAY GRAHAM, EVERYMAN’S CONSTITUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE “CONSPIRACY THEORY,” AND AMERICAN CONSTITUTIONALISM 40–41 (1968).
66✕Id. at 417.
67✕See Swindler, supra note 58, at 52.
68✕118 U.S. 394 (1886).
69✕Id. at 411, 416.
70✕County of San Mateo v. Southern Pac. R.R. Co., 13 F. 722, 748 (C.C.D. Cal. 1882); County of Santa Clara v. Southern Pac. R.R. Co., 18 F. 385, 403–04 (C.C.D. Cal. 1883).
71✕County of San Bernardino v. Southern Pac. R.R. Co., 118 U.S. 417, 422 (1886) (Field, J., concurring).
72✕Id.
73✕Id.
74✕See County of Santa Clara v. Southern Pac. R.R. Co., 118 U.S. 394 (1883).
75✕Id.
76✕See, e.g., Power Mfg. Co. v. Saunders, 274 U.S. 490, 493 (1927); Kentucky Fin. Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 550 (1923); Smyth v. Ames, 169 U.S. 466, 522 (1898); Covington & Lexington Turnpike Rd. Co. v. Sanford, 164 U.S. 578, 592 (1896).
77✕Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U.S. 26 (1889).
78✕Id. at 28.
79✕County of Santa Clara v. S. Pac. R.R. Co., 18 F. 385, 403 (C.C.D. Cal. 1883).
80✕Id. at 402.
81✕Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. VA. L. REV. 173, 174 (1985).
82✕Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. CHI. L. REV. 1441 (1987).
83✕357 U.S. 449 (1958).
84✕Id. at 451.
85✕Id. at 465.
86✕Id. at 452.
87✕Id. at 461.
88✕Id. at 449.
89✕Brief for Petitioner at 18, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (No. 91), 1957 WL 55387.
90✕Brief for Respondent at 10, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (No. 91), 1957 WL 87605.
91✕NAACP, 357 U.S. at 459.
92✕Id. at 458–59.
93✕First Nat. Bank of Boston v. Belotti, 435 U.S. 765 (1978); Nikolas Bowie, Corporate Democracy: How Corporations Justified Their Right to Speak in 1970s Boston, 37 LAW & HIST. REV. 943 (2018).
94✕Bowie, supra note 93, at 943–44.
95✕Bowie, supra note 93.
96✕Bellotti, 435 U.S. at 776.
97✕Id.
98✕Daniel Greenwood, Essential Speech: Why Corporate Speech Is Not Free, 83 IOWA L. REV. 995, 1015 (1998) (centering his analysis on Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), which established the “listeners rights” theory of the First Amendment that was used in Bellotti).
99✕Id. at 1016.
100✕Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
101✕Id. at 356.
102✕Id. at 341.
103✕Id. at 349.
104✕Id. at 340.
105✕Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011), summarily aff’d, 565 U.S. 1104 (2012).
106✕573 U.S. 682 (2014).
107✕Id. at 706, 731.
108✕Id. at 705–06.
109✕Id. at 707–08.
110✕Id. at 709.
111✕Id. at 706–07.
112✕38 U.S. 519 (1839).
113✕See id. at 586–87.
114✕See generally id. at 587.
115✕Bank of Augusta v. Earle, 38 U.S. 519, 606 (1839).
116✕Id. at 522.
117✕U.S. CONST. art. IV, § 2.
118✕9 U.S. 61, 84–85 (1809).
119✕Bank of Augusta, 38 U.S. at 550.
120✕Id. at 586.
121✕Id. at 520.
122✕Id. at 587.
123✕Id.
124✕Bank of Augusta, 38 U.S. at 586.
125✕Id.
126✕Hale v. Henkel, 201 U.S. 43 (1906).
127✕Id. at 66.
128✕Id. at 76.
129✕Id. at 74.
130✕Plessy v. Ferguson, 163 U.S. 537 (1896).
131✕Hale, 201 U.S. at 76.
132✕Id. at 70.
133✕Id. at 69–70.
134✕Id. at 70.
135✕Peter J. Henning, The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions, 63 TENN. L. REV. 793, 818 (1996).
136✕Hale, 201 U.S. at 74.
137✕Id.
138✕Id. at 75.
139✕211 U.S. 45 (1908).
140✕David E. Bernstein, Plessy Versus Lochner: The Berea College Case, 25 J. SUP. CT. HIST. 93, 94 (2000).
141✕Berea College, 211 U.S. at 58.
142✕See id. at 57–58.
143✕Id. at 51.
144✕Id. at 57.
145✕Id. at 54.
146✕Id.