Monday, April 12, 2010

Gans and Kendall on Corporate Personhood in American Law

David Gans and Douglas Kendall of the Constitutional Accountability Center recently released the third narrative in the Center's series on Text and History, titled A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law.  The CAC released the narrative last month at the Senate Judiciary Committee hearing on Citizens United v. FEC, the OT09 case overturning federal restrictions on corporate and union electioneering spending, and thus protecting corporations under the First Amendment.


The narrative traces the history of corporate personhood from the early republic, through the enactment of the Fourteenth Amendment, the Lochner era, the New Deal, and Citizens United.  It well reflects the CAC's characteristically careful balance between excellent and timely scholarship and highly accessible writing on important constitutional issues of the day.  Here's a taste, from the Introduction:

The debate about how to treat corporations--which are never mentioned in the Constituion, yet play an ever-expanding role in American society--has raged since the framing era.  The Supreme Court's answer to this question has long been a nuanced one: corporations can sue and be sued in federal courts and they can assert certain constitutional rights, but they have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation.  Only once, during the darkest days of the reviled Lochner era, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People."  And even in the Lochner era, equal rights for corporations were limited to subjects such as contracts, property rights and taxation, and never extended to the political process.


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Thanks so much for posting the link to the paper: I've just skimmed it but it looks wonderful and I look forward to a leisurely reading. I confess to being perplexed and disappointed at the fairly tame response in the legal blogosphere to the Citizens United decision, even from ostensilby Liberal law profs.

Posted by: Patrick S. O'Donnell | Apr 13, 2010 9:13:24 AM

Dear Patrick,

Thank you for your comment. As you know, the folks at the CAC do some terrific work. We've posted on their earlier reports in this series, and I interviewed them about their work on the text and history of the Fourteenth Amendment.

I agree about the relative dearth of material on Citizens United and have no good explanation. This makes the CAC report all the more welcome.

All the Best,

Posted by: Steven D. Schwinn | Apr 13, 2010 7:40:14 PM

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