The Surprising Foundations of Corporate Constitutional Rights

Business corporations are statutory creations, recognizably modern only from the end of the nineteenth century, if not the New Deal. The modern statutes are loosely descended from far older corporate forms. In those earlier eras, corporations were self-governing entities with claims to partial or total autonomy—the Knights Templar, monasteries, guilds, cities, universities, or aristocracy.

Startlingly, the Supreme Court’s constitutional jurisprudence continues to be deeply influenced by the feudal understanding of corporations as quasi-sovereigns entitled to something like comity. This image—not the word “person” in the Fourteenth Amendment, the “naturalness” or “artificialness” of corporations, nor the requirements of freedom of speech or religion—is the best explanation of both the historic and modern cases.

This semi-sovereign understanding of the corporation’s constitutional status presents two underexplored problems. First, business corporations have no defensible claim to autonomy in a post-feudal, liberal democracy. Second, if they did, they would be subject to the standard liberal critiques of their unlamented predecessors: corporate officeholders wield unresponsive power unrestrained by republican or democratic norms.

Rejecting this notion would allow us to begin to explore the full implications of the alternative view—that business corporations, like our other governing agencies, “deriv[e] their just powers from the consent of the governed . . . [to] effect their Safety and Happiness.”1 As we continue to debate the privileges and duties of citizenship, we need to also consider how the fundamental liberal rights of Due Process, privacy, freedom of conscience, and democratic accountability ought to apply in the corporate sphere.

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