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The History of Corporate Personhood

How did we get to the point where a for-profit corporation can lay claim to religious rights? Ciara Torres-Spelliscy on the slithering history of corporate personhood.

In McCutcheon v. FEC, handed down last Wednes­day, the Supreme Court built on the preced­ent of Citizens United by inval­id­at­ing the federal aggreg­ate contri­bu­tion limit for indi­vidu­als. But McCutcheon is not the only case that gives the Supreme Court chance to expand Citizens United’s reach this term.

In Sebelius v. Hobby Lobby Stores, the Supreme Court has to choose whether to extend the logic of 2010’s Citizens United to allow a corpor­a­tion to make a reli­gious objec­tion to a gener­ally applic­able law.

How we got to the point where a for-profit corpor­a­tion – not a church mind you – can lay claim to reli­gious rights is a bit complic­ated.  It all goes back to a legal fiction known as corpor­ate person­hood.

Gener­ally, corpor­ate person­hood allows compan­ies to hold prop­erty, enter contracts, and to sue and be sued just like a human being. But of course some human rights make no sense for a corpor­a­tion, like the right to marry, to parent a child, or to vote. As Professor Eliza­beth Poll­man explains when it comes to Consti­tu­tional rights for corpor­a­tions there is a hodge­podge: “corpor­a­tions enjoy Fourth Amend­ment safe­guards against unreas­on­able regu­lat­ory searches, but do not have a Fifth Amend­ment priv­ilege against self-incrim­in­a­tion.”

If you’re a fan of the Colbert Report, “corpor­ate person­hood” might sound famil­iar. Stephen Colbert got a well deserved Peabody Award for his work educat­ing the public about campaign finance laws with his lawyer Trevor Potter. However, Mr. Colber­t’s verbal tick of saying that Citizens United gran­ted corpor­ate person­hood is a tad mislead­ing.

Citizens United did not grant corpor­a­tions person­hood. Corpor­a­tions already had it. As lawyer David Gans has docu­mented, despite the fact that the U.S. Consti­tu­tion never mentions corpor­a­tions, corpor­ate person­hood has been slither­ing around Amer­ican law for a very long time. The first big leap in corpor­ate person­hood from mere prop­erty rights to more expans­ive rights was a claim that the Equal Protec­tion Clause applied to corpor­a­tions.

The 14th Amend­ment, adop­ted after the Civil War in 1868 to grant eman­cip­ated slaves full citizen­ship, states, “No state shall … deprive any person of life, liberty, or prop­erty without due process of law, nor deny to any person … the equal protec­tion of the laws.”

We have the likes of former U.S. Senator Roscoe Conk­ling to thank for the exten­sion of Equal Protec­tion to corpor­a­tions. Conk­ling helped draft the 14th Amend­ment. He then left the Senate to become a lawyer. His Gilded Age law prac­tice was going so swim­mingly that Conk­ling turned down a seat on the Supreme Court not once, but twice. 

Conk­ling argued to the Supreme Court in San Mateo County v. South­ern Pacific Rail Road that the 14th Amend­ment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congres­sional Commit­tee that draf­ted the amend­ment vacil­lated between using “citizen” and “person” and the drafters chose person specific­ally to cover corpor­a­tions. Accord­ing to histor­ian Howard Jay Graham, “[t]his part of Conk­ling’s argu­ment was a delib­er­ate, brazen forgery.”

As Thom Hart­mann notes the Supreme Court embraced Conk­ling’s read­ing of the 14th Amend­ment in a head­note in 1886 in Santa Clara County v. South­ern Pacific Rail Road: “Before argu­ment, Mr. Chief Justice Waite said: ‘The Court does not wish to hear argu­ment on the ques­tion whether the provi­sion in the Four­teenth Amend­ment to the Consti­tu­tion which forbids a state to deny to any person within its juris­dic­tion the equal protec­tion of the laws applies to these corpor­a­tions. We are all of opin­ion that it does.’” This was not part of the formal opin­ion. But the damage was done. Later cases uncrit­ic­ally cited the head­note as if it had been part of the case.

Some Supreme Court Justices objec­ted to the Santa Clara approach. Dissent­ing in Wheel­ing Steel Corp. in 1949 Justice William O. Douglas and Justice Hugo Black noted that the corpor­ate person­hood issue was not such an open and shut case: “[In Santa Clara] [t]here was no history, logic, or reason given to support that view. … [T]he purpose of the [14th] Amend­ment was to protect human rights-primar­ily the rights of a race which had just won its free­dom.” Justices Douglas and Black thought the ques­tion of corpor­ate person­hood should be decided by the people, not the Supreme Court. But they could not convince their fellow Justices.

In the 1970s, Santa Clara was used to justify grant­ing corpor­a­tions the First Amend­ment right to spend unlim­ited corpor­ate funds on ballot initi­at­ives in a case called Bellotti. The Court relied on Santa Clara’s read­ing when it stated that “[i]t has been settled for almost a century that corpor­a­tions are persons within the mean­ing of the Four­teenth Amend­ment.” Justice Rehnquist, in his dissent, ques­tioned the wisdom of extend­ing corpor­a­tions polit­ical rights: “those prop­er­ties, so bene­fi­cial in the economic sphere, pose special dangers in the polit­ical sphere.” Again Rehnquist could not convince his brethren.

In Citizens United, when the Supreme Court held that polit­ical speech is “indis­pens­able to decision making in a demo­cracy, and this is no less true because the speech comes from a corpor­a­tion,” they cited Bellotti. Thus it’s only a hop, skip and a jump from Santa Clara to Citizens United.

In Sebelius v. Hobby Lobby Stores, the store chain is claim­ing that the corpor­a­tion (and not just its propri­et­ors) has a reli­gious objec­tion to provid­ing certain types of birth control for its work­ers as required by the Afford­able Care Act. Thus, the Court is contem­plat­ing expand­ing corpor­ate person­hood to a new logical extreme: First Amend­ment reli­gious rights. It’s no surprise that Hobby Lobby’s brief relies on Bellotti and Citizens United.

There are absurdit­ies that flow from grant­ing legal fictions Consti­tu­tional rights that were inten­ded for humans. Corpor­a­tions don’t have minds, and without one it is hard to see how a corpor­a­tion “thinks” about any polit­ical issue du jour from gay rights to the budget defi­cit. Without a soul, it’s hard to concep­tu­al­ize how a corpor­a­tion could “believe” in anything whether it is tran­sub­stan­ti­ation of commu­nion or the moral­ity of birth control. But here we go again. A corpor­a­tion makes a Consti­tu­tional claim to the right­eous­ness of their legal posi­tion. The ques­tion is will the Justices fall for it?

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo: Flickr/Zacklur)