The Corporation as a Real Constitutional Person

For two centuries now, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in the analysis have the potential for wide impact and have ignited now perennial discussions of controversial issues such as campaign finance reform, congressional power, and the constitutional limitations on the judicial branch. Earlier this year, the United States Supreme Court delivered the opinion in Citizens’ United. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court, to reach its holding, extended First Amendment protection to corporations. While this decision has received extensive press attention, academic discussion, and even commentary during the presidential address, the decision, in the constitutional regard, was not novel. Rather, the Court’s decision was premised upon decisions that dated back to nineteenth century, wherein the Court began providing constitutional protection to corporate entities. What is conspicuously absent from these discussions at both the judicial and academic levels, however, is any comprehensive attempt to analyze the question from an originalist perspective. Rather, the few attempts at analyzing the issue from an originalist perspective have been premised largely on intuitive arguments. Furthermore, none of those attempts have mined any extensive primary documents to support their analytical positions. This Article attempts to fill that gap by providing an extensive and comprehensive review of primary documents relevant to the nation’s founding, including notes, papers, and speeches of the signatories to the United States Constitution; the notes, papers, and speeches of the signatories to the Declaration of Independence; philosophic literature influential to the creation of the organic federal documents; the debates in Congress surrounding the purpose and intent of the Bill of Rights; and each of the early state constitutions. Using those documents as the foundation for the analysis, this Article then argues that the corporate constitutional person is a myth created and promulgated by the United States Supreme Court over the past two centuries. Part II of this Article discusses the history of corporations in the United States with particular emphasis on primary documents supporting the doctrinal view of corporations prior to 1790. This part additionally provides a history of the Court’s extensions of constitutional rights to corporations beginning in the early nineteenth century and culminating with the Court’s decision in Citizens United. Part III of this Article then provides a brief discussion of originalist thought, outlining the three major branches of originalist thought and providing a framework to analyze the doctrinal view of corporations during the late eighteenth century. Part IV argues the corporate constitutional person is a myth from the originalist perspective. First, Part IV discusses the plain language contained with the Constitution and the Bill of Rights, focusing on the specific entities that are explicitly entitled to constitutional protection in those documents. This section further supports definitions for words contained within those documents using dictionaries from the late eighteenth century; notes, papers, and other documents written by the drafters and ratifiers of the Constitution; debates in Congress over the Bill of Rights; and political literature explicitly adopted by the drafters and ratifiers of the Constitution, among other primary documents. Second, Part IV analyzes early state constitutions and their descriptions and discussions of, and more importantly the distinctions between, those who have constitutional rights pursuant to the state constitution and corporations. This Part ultimately argues that corporations were neither protected by the plain language of the Constitution nor intended to be protected by the language of the Constitution