Putting the Corporate Back into Corporate Personhood

The Supreme Court has been wrestling with the doctrinal premises of corporate personhood on several occasions in recent years. The Court follows a long history of jurisprudence that has been criticized as cryptic or nebulous at best by many scholars. Especially since the recent economic crisis, the doctrine of corporate personhood has had polarizing effects on the public debate about the role of corporations in society. At a policy level, the debate revolves around questions about the scope of regulatory reach of the state over business; at a sociological level, the issue presents itself as an oxymoron, whether “corporations have human rights,” as the Wall Street Journal postulated. The article provides an important insight into what is wrong with the majority opinion in Citizens United. The paper argues that corporate legal theory (about the nature of the firm) should inform the debate on corporate constitutional rights in order to avoid intra-corporate conflicts with competing interests of shareholders and— depending on the prevailing corporate theory in a national context—its other stakeholders. In essence, we should put the “corporate” back into corporate personhood