In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that a general for-profit corporation had the right to claim an exemption from the requirements of the Affordable Care Act on the basis of its religious convictions. Whatever the Court may have actually said, there is no doubt that the Citizens United and Hobby Lobby decisions have instigated or reinvigorated debate over the extent to which corporations have constitutional rights. The question of whether corporations are “persons” in the same sense and with the same rights as flesh and blood human beings has become the flash point in the modern debate about corporate rights.
The purpose of this paper is to demonstrate that the tendency of critics to focus on the concept of corporate personhood is misguided and potentially counterproductive. It is misguided because the history of cases involving corporate constitutional rights reveals that the Court has never settled on any one theory of the nature of corporations, much less the idea that corporations are persons in the same sense as flesh and blood human beings. Notwithstanding that fact, the Court has from earliest times recognized that corporations have rights under the Constitution. Thus the focus on corporate personhood has the potential to be counterproductive by drawing attention away from the real issue in Citizens United and Hobby Lobby. The actual questions these cases raise are: what is the underlying rationale for giving constitutional rights to corporations and what are the limits of those rights? The answer to both of these question, I suggest, lies in a rule that might be described as the principle of confiscation. Growing out of early contract clause cases, this principle holds that the Constitution prohibits government from confiscating corporate property or depriving a corporation of the essential object of its franchise.
After tracing the history of the principle of confiscation I explain how this traditional view of corporate constitutional rights might be applied to modern corporations, and why its approach would be preferable to the technique of trying to equate corporations to human beings.
- corporate rights,
- corporate person,
- Citizens United,
- Hobby Lobby
Available at: http://works.bepress.com/paul_kens/4/