by Adam Winkler
1758: William Blackstone – The influential English scholar describes the corporation as an “artificial person” with a separate legal identity and certain rights, including property, contract, and access to court.
1773: Boston Tea Party – The colonists demonstrate their anger toward the English government and the East India Company, the recipient of a huge bailout, by dumping the corporation’s tea into Boston Harbor.
FIRST CORPORATE RIGHTS CASES, 1787–1860
1787: Constitutional Convention – The Framers design the Constitution of the United States, influenced by their experience with colonial corporations.
1809: Bank of the United States v. Deveaux – In the first corporate rights case, Horace Binney persuades the Supreme Court to recognize corporations’ right of access to federal court under Article III of the Constitution and the Judiciary Act.
1819: Dartmouth College v. Woodward – The Supreme Court under Chief Justice John Marshall adopts Daniel Webster’s argument that corporations are private entities, akin to individuals, under the contract clause of the Constitution.
1837: Charles River Bridge Company v. Warren Bridge Company – In a defeat for Daniel Webster, the Supreme Court under Chief Justice Roger Taney refuses to read monopoly privileges into a corporate charter.
1839: Bank of Augusta v. Earle – The Taney court holds that corporations do not have the privileges and immunities of citizens under the comity clause of Article IV of the Constitution.
1853: Marshall v. Baltimore & Ohio Railroad Company – The Taney court uses corporate personhood to make corporations more easily amenable to suit in federal court.
PROPERTY BUT NOT LIBERTY RIGHTS, 1861–1935
1882: San Mateo County v. Southern Pacific Railroad Company – Roscoe Conkling misleads the justices about the history and meaning of the Fourteenth Amendment in a test case designed to win rights of equal protection and due process for corporations.
1886: Santa Clara County v. Southern Pacific Railroad Company – Reporter of Decisions J. C. Bancroft Davis includes an inaccurate headnote saying the Supreme Court held that corporations were persons under the Fourteenth Amendment.
1888: Pembina Consolidated Silver Mining Company v. Pennsylvania – Justice Stephen Field’s majority opinion announces that corporations are persons entitled to equal protection and due process under the Fourteenth Amendment.
1896: Marc Hanna – As William McKinley’s campaign manager, he revolutionizes election campaigns and, for the first time, actively solicits corporate money for a presidential race.
1897–1936: Lochner Era – Although often friendly to business, the court establishes a new boundary on the rights of corporations, entitling them to property rights but not liberty rights.
1906: Hale v. Henkel – The Supreme Court holds corporations do not have the Fifth Amendment right against self-incrimination but do have a limited Fourth Amendment right against unreasonable searches and seizures.
1907: Tillman Act – After the revelations of the Great Wall Street Scandal, Congress enacts the first modern campaign finance law, a ban on corporate contributions to federal candidates.
1907: Western Turf Association v. Greenberg – The Supreme Court rules that corporations do not have the freedom of association, a liberty right.
1908: Berea College v. Kentucky – The court affirms that corporations, even educational corporations not organized for profit, have no right of association.
1916: Brewers Cases – The Michigan Supreme Court and a federal court hold that corporations have no right to influence elections and uphold bans on corporate money in campaigns.
1919: Dodge Brothers v. Ford Motor Company – An influential case that stands for the principle that business corporations must be run in the interests of stockholders.
LIBERTY RIGHTS, 1936–CURRENT
1936: Grosjean v. American Press Company – The Supreme Court rules that the First Amendment right of freedom of the press extends to newspaper corporations.
1942: Valentine v. Chrestensen – The Supreme Court holds that commercial speech is not protected by the First Amendment.
1946: Marsh v. Alabama – In an unusual case, the Supreme Court determines that a company town run by a corporation must respect individual rights.
1958: NAACP v. Alabama ex rel. Patterson – The Supreme Court holds that a voluntary membership corporation can assert its members’ rights of association.
1971: Lewis Powell – Months before being nominated to the Supreme Court, he authors an influential memorandum to the Chamber of Commerce outlining how business could better defend its interests.
1976: Virginia Pharmacy Board v. Virginia Citizens Consumer Council – Siding with Ralph Nader’s consumer rights group, the Supreme Court adopts the listeners’ rights theory of free speech to protect commercial speech.
1978: First National Bank of Boston v. Bellotti – Justice Lewis Powell authors the Supreme Court’s opinion recognizing corporations have a free speech right to influence ballot measure campaigns.
1990: Austin v. Michigan Chamber of Commerce – The Supreme Court declares restrictions on corporate money in candidate election campaigns constitutionally permissible, distinguishing Bellotti.
2003: McConnell v. Federal Election Commission – Reaffirming Austin, the Supreme Court upholds the federal law barring corporations and unions from financing “electioneering communications.”
2010: Citizens United v. Federal Election Commission – The Supreme Court holds that corporations have a First Amendment right to spend money to influence candidate elections, overturning Austin and McConnell.
2014: Burwell v. Hobby Lobby Stores, Inc. – The Supreme Court declares corporations have religious freedom under a federal statute.
NOTES
INTRODUCTION: ARE CORPORATIONS PEOPLE?
1. Conkling and his deceptive account of the drafting of the Fourteenth Amendment are discussed in more detail in chapter 4, infra.
2. See Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); Richard McGregor, “Obama Launches Re-Election Campaign,” Financial Times, May 6, 2012; Greg Stohr, “Bloomberg Poll: Americans Want Supreme Court to Turn Off Political Spending Spigot,” Bloomberg News, September 28, 2015, available at https://www.bloomberg.com/politics/articles/2015-09-28/bloomberg-poll-americans-want-supreme-court-to-turn-off-political-spending-spigot; Allegra Pocinki, “16 States Call to Overturn ‘Citizens United,’ ” July 8, 2013, available at http://www.publicampaign.org/blog/2013/07/08/16-states-call-overturn-%E2%80%98citizens-united%E2%80%99.
3. See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
4. Cass R. Sunstein, “The Supreme Court Follows Public Opinion,” in Legal Change: Lessons From America’s Social Movements, ed. Jennifer Weiss-Wolf and Jeanine Plant-Chirlin (2015), 21. On social movements and the Constitution, see Jack M. Balkin and Reva B. Siegel, “Principles, Practices, and Social Movements,” 154 University of Pennsylvania Law Review 927 (2006); William N. Eskridge Jr., “Channeling: Identity-Based Social Movements and Public Law,” 150 University of Pennsylvania Law Review 419 (2001). David Cole, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016).
5. See Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (1948), liii. Among those who noticed and wrote about the constitutional rights of corporations before Citizens United were Carl J. Mayer, “Personalizing the Impersonal: Corporations and the Bill of Rights,” 41 Hastings Law Journal 577 (1990); Susanna K. Ripken, “Corporations Are People Too,” 15 Fordham Journal of Corporate & Finance Law 97, 118 (2009); Henry N. Butler and Larry E. Ribstein, The Corporation and the Constitution (1995); Peter J. Henning, “The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions,” 63 Tennessee Law Review 793 (1996); Gregory A. Mark, “The Personification of the Business Corporation in American Law,” 54 University of Chicago Law Review
1441 (1987); Ted Nace, Gangs of America: The Rise of Corporate Power and the Disabling of Democracy (2003); Thom Hartmann, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights (2002); Scott R. Bowman, The Modern Corporation and American Political Thought: Law, Power, and Ideology (1995).
Only the freedom of speech for corporations had been subject to extensive study before Citizens United, mostly in the area of campaign finance law. See, e.g., Daniel J. H. Greenwood, “Essential Speech: Why Corporate Speech Is Not Free,” 83 Iowa Law Review 995 (1998); Richard L. Hasen, “Campaign Finance Laws and the Rupert Murdoch Problem,” 77 Texas Law Review 1627 (1999); Thomas W. Joo, “The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurisprudence,” 79 Washington University Law Quarterly 1 (2001); Martin H. Redish and Howard M. Wasserman, “What’s Good for General Motors: Corporate Speech and the Theory of Free Expression,” 66 George Washington Law Review 235 (1998); Jill E. Fisch, “Frankenstein’s Monster Hits the Campaign Trail: An Approach to Regulation of Corporate Political Expenditures,” 32 William & Mary Law Review 587 (1991); Victor Brudney, “Business Corporations and Stockholders’ Rights Under the First Amendment,” 91 Yale Law Journal 235 (1981); Mark Tushnet, “Corporations and Free Speech,” in The Politics of Law, ed. David Kairys (1982), 253.
Since Citizens United, scholarly attention to corporate constitutional rights has increased dramatically. See, e.g., Margaret M. Blair and Elizabeth Pollman, “The Derivative Nature of Corporate Constitutional Rights,” 56 William & Mary Law Review 1673 (2015); Elizabeth Pollman, “Reconceiving Corporate Personhood,” 2011 Utah Law Review 1629; Reuven S. Avi-Yonah, “Citizens United and the Corporate Form,” 2010 Wisconsin Law Review 999; Darrell A. H. Miller, “Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights,” 86 New York University Law Review 887 (2011); Lucian A. Bebchuk and Robert J. Jackson Jr., “Corporate Political Speech: Who Decides?,” 124 Harvard Law Review 83 (2010); Ryan Azad, “Can a Tailor Mend the Analytical Hole? A Framework for Understanding Corporate Constitutional Rights,” 64 UCLA Law Review 452 (2017); Anne Tucker, “Flawed Assumptions: A Corporate Law Analysis of Free Speech and Corporate Personhood in Citizens United,” 61 Case Western Reserve Law Review 497 (2010); Monica Youn, “First Amendment Fault Lines and the Citizens United Decision,” 5 Harvard Law & Policy Review 135 (2011); Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution (2014); Lucian A. Bebchuk and Robert J. Jackson Jr., “Shining Light on Corporate Political Spending,” 101 Georgetown Law Journal 923 (2013); Ilya Shapiro and Caitlyn W. McCarthy, “So What if Corporations Aren’t People?,” 44 John Marshall Law Review 701 (2011); Sonja R. West, “The Media Exemption Puzzle of Campaign Finance Laws,” 164 University of Pennsylvania Law Review Online 253 (2016); Richard L. Hasen, Plutocrats United: Campaign Money, The Supreme Court, and the Distortion of American Elections (2016); Michael W. McConnell, “Reconsidering Citizens United as a Press Clause Case,” 123 Yale Law Journal 412 (2013); Kent Greenfield, “In Defense of Corporate Persons,” 30 Constitutional Commentary 309 (2015); Ciara Torres-Spelliscy, Corporate Citizen? An Argument for the Separation of Corporation and State (2016); Jessica A. Levinson, “We the Corporations?: The Constitutionality of Limitations on Corporate Speech after Citizens United,” 46 University of San Francisco Law Review 307 (2011); Burt Neuborne, “Of ‘Singles’ Without Baseball: Corporations as Frozen Relational Moments,” 64 Rutgers Law Review 769 (2012); Thomas Wuil Joo, “Corporate Speech and the Rights of Others,” 30 Constitutional Commentary 335 (2015); David H. Gans and Douglas T. Kendall, “A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law,” 44 John Marshall Law Review 643 (2010); Jeff Clements, Corporations Are Not People: Reclaiming Democracy From Big Money and Global Corporations (2d ed., 2014). On the longer history of corporate constitutional rights cases in the Supreme Court, see Blair and Pollman, “The Derivative Nature of Corporate Constitutional Rights,” and Ruth H. Bloch and Naomi Lamoreaux, “Corporations and the Fourteenth Amendment,” in Corporations and American Democracy, ed. Naomi R. Lamoreaux and William J. Novak (2017), 286.
6. On the Supreme Court’s repeated failure to rule on the side of women, racial minorities, and the common people more generally, see Ian Millhiser, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (2016).
7. See Lee Epstein et al., “How Business Fares in the Supreme Court,” 97 Minnesota Law Review 1431 (2013); Jeffrey Rosen, “Supreme Court Inc.,” New York Times, March 16, 2008. See also Adam Liptak, “Corporations Find a Friend in the Supreme Court,” New York Times, May 4, 2013. For a fuller analysis of, and some skepticism about, the business leanings of the recent Supreme Court, see Jonathan H. Adler, ed., Business in the Roberts Court (2016).
8. On the political activity of large firms, see David Vogel, Fluctuating Fortunes: The Political Power of Business in America (1989); Wendy L. Hansen and Neil J. Mitchell, “Disaggregating and Explaining Corporate Political Activity: Domestic and Foreign Corporations in National Politics,” 94 American Political Science Review 891 (2000); Amy J. Hillman, “Determinants of Political Strategies in US Multinationals,” 42 Business & Society 455 (2003); Martin B. Meznar and Douglas Nigh, “Buffer or Bridge? Environmental and Organizational Determinants of Public Affairs Activities in American Firms,” 38 Academy of Management Journal 975 (1995).
9. See Ganesh Sitaraman, “The Puzzling Absence of Economic Power in Constitutional Theory,” 101 Cornell Law Review 1445 (2016); Benjamin I. Page et al., “Democracy and the Policy Preferences of Wealthy Americans,” 11 Perspectives on Politics 51 (2013); Kay Lehman Schlozman et al., The Unheavenly Chorus (2012); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012). On the ties between regulated industry and business political activity, see Kevin Grier et al., “The Determinants of Industrial Political Activity, 1978–1986,” 88 American Political Science Review 911 (1994); Amy J. Hillman and Michael A. Hitt, “Corporate Political Strategy Formation: A Model of Approach, Participation, and Strategy Decisions,” 24 Academy of Management Review 825 (1999). On the profit motive in motivating corporate political activity, see Neil J. Mitchell et al., “The Determinants of Domestic and Foreign Corporate Political Activity,” 59 Journal of Politics 1096 (1997). See also Amy J. Hillman et al., “Corporate Political Activity: A Review and Research Agenda,” 30 Journal of Management 837 (2004).
10. On the shareholder wealth maximization norm, see Stephen M. Bainbridge, “In Defense of the Shareholder Wealth Maximization Norm,” 50 Washington & Lee Law Review 1423 (1993).
CHAPTER 1: IN THE BEGINNING, AMERICA WAS A CORPORATION
1. On the original understanding of corporate rights, see Jonathan A. Marcantel, “The Corporation as a ‘Real’ Constitutional Person,” 11 University of California Davis Business Law Journal 221 (2011).
2. See James Stancliffe Davis, Essays in the Earlier History of American Corporations (1917), 332 and especially Appendix B: “American Charters to Business Corporations, 1781–1800.” Some of these corporations received multiple charters from different states but are counted here as a single business enterprise. The two corporations that would assert constitutional rights would be Dartmouth College and the Charles River Bridge Company.
3. See Jonas V. Anderson, “Regulating Corporations the American Way: Why Exhaustive Rules and Just Deserts Are the Mainstay of U.S. Corporate Governance,” 57 Duke Law Journal 1081, 1100–1101 (2008); Thom Hartmann, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights (2004), 63. See also Thomas Jefferson, Letter to George Logan (November 12, 1816), in The Works of Thomas Jefferson (Federal ed.), ed. Paul Leicester Ford (1904–1905); Robert S. Alley, ed., James Madison on Religious Liberty (1985), 91; James Wilson, “Of Corporations,” in The Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (2007).
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4. See Charles A. Beard, An Economic Interpretation of the Constitution (1941), 133–151; Forrest McDonald, We the People: The Economic Origins of the Constitution (1958), 38–92; Robert A. McGuire, To Form A More Perfect Union: A New Economic Interpretation of the United States Constitution (2003), 54; Eric Hilt and Jacqueline Valentine, “Democratic Dividends: Stockholding, Wealth, and Politics in New York, 1791–1826,” 72 Journal of Economic History 332, 340–341 (2012).
5. On the Jamestown colony, see Bernard Bailyn, The Barbarous Years: The Peopling of British North America: The Conflict of Civilizations, 1600–1675 (2012); John Darwin, Unfinished Empire: The Global Expansion of Britain (2013); Virginia Bernhard, A Tale of Two Colonies: What Really Happened in Virginia and Bermuda? (2011); John C. Miller, The First Frontier: Life in Colonial America (1966); Karen Ordahl Kupperman, The Jamestown Project (2009).
6. See Kupperman, The Jamestown Project, 20–34; Bernhard, A Tale of Two Colonies, 8.
7. On the Virginia Company’s corporate form, see Miller, The First Frontier, 15–26; Bernhard, A Tale of Two Colonies, 7, 16. On the investors, see Kupperman, The Jamestown Project, 214, 242–243. The available data reflect the price of shares and the number of investors after the Virginia Company was reorganized and a second “public offering” was made in 1609.
8. On Thomas West, see Samuel Willard Crompton, "De La Warr, Baron," in American National Biography Online, available at http://www.anb.org/articles/01/01-00206.html; Henry Browning, The Magna Charta Barons and Their American Descendants (1898), 159; Robert Alonzo Brock and Virgil Anson Lewis, Virginia and Virginians: Eminent Virginians, Executives of the Colony of Virginia (1888), 15–16; Alexander Brown, “Sir Thomas West, Third Lord De La Warr,” 9 Magazine of American History 18 (1883); J. Frederick Fausz, “West, Thomas, third Baron De La Warr (1577–1618),” Oxford Dictionary of National Biography (2004), online ed., October 2008, available at http://www.oxforddnb.com/view/article/29100.