Friday, October 4, 2013
Brandon L. Garrett (University of Virginia School of Law) has posted The Constitutional Standing of Corporations on SSRN. Here is the abstract:
Are corporations "persons" with constitutional rights? The Supreme Court has famously avoided the issue, while nevertheless recognizing that corporations and organizations may litigated rights, for example, under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I part company with many cogent critics who call the Court’s rulings ad hoc and unprincipled, and also with those who conversely argue that in Citizens United, the Court recognized corporations as a "real entity." Instead, I argue the Court’s approach is grounded in the concept of standing, asking this question: does the organization effectively represent the interests of individuals in protecting a given constitutional right? Constitutional rights should not be "incorporated" against corporations. Conceived as a question of standing, rather than whether an organization "has" a constitutional right, a judge addresses standing but then conducts constitutional analysis as with an individual litigant. This theory of standing is normatively attractive, and has implications for the interpretation of a range of contested constitutional rights. Finally, I explore how standing may not be appropriate if corporate constitutional rights are in tension with individual rights. Far more often, however, standing to litigate constitutional rights in the aggregate may effectively develop protections for individuals and organizations alike.