Constitution Daily

Smart conversation from the National Constitution Center

Does the Constitution treat corporations as “persons”?

August 14, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today's topic: corporate personhood.

The constitutional claim:

"Corporations are people, my friend....Of course they are...Everything corporations earn ultimately goes to people. Where do you think it goes?...People's pockets!"
- GOP presidential candidate Mitt Romney, in an exchange with hecklers at the Iowa State Fair in Des Moines, August 11, 2011

The constitutional response:

Political pundits immediately pounced on candidate Mitt Romney for his declaration that "corporations are people," treating it as a significant campaign misstep that supposedly identified him with wealth and power. But one of the most peculiar incidents in U.S. Supreme Court history indicates that Romney may well have been right, constitutionally speaking.

In a California case involving taxes imposed unequally on railroads, an attorney for the rail lines stood up in the Supreme Court in late January 1886, preparing to argue. Before he could begin, Chief Justice Morrison R. Waite declared: "The court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We all are agreed that it does."

Romney may well have been right, constitutionally speaking

That statement is quoted directly in the official report of the Court's work, and it was put there by a member of the Court's staff after he cleared it with Chief Justice Waite. Historians, and others, have debated ever since whether it amounts to a binding constitutional conclusion, because the Court's final opinion in that case -- Santa Clara County v. Southern Pacific Railroad -- did not explicitly rely upon that conclusion.

Though often criticized, even among the Justices, the statement has never been explicitly repudiated by the Court. The late Justice Hugo L. Black, in a dissenting opinion in 1938, ridiculed the ruling, saying "the language of the amendment itself does not support the theory that it was passed for the benefit of corporations." He did not deny, though, that it was binding.

There is no doubt that corporations do enjoy some constitutional rights; corporate records are, to some degree, shielded under the Fourth Amendment limit on government searches. And, in one of the Supreme Court's most controversial decisions on the rights of corporations -- the ruling in January last year in the case of Citizens United v. Federal Election Commission -- the Court upheld a broad right of free speech under the First Amendment, assuring corporations a vastly greater role in federal election campaigns.

Lawyers for corporations have been attempting to build on the victory in the Citizens United case, making other claims for legal protection. In the past term of the Court, AT&T, Inc., the telecommunications giant, attempted to persuade the Court that corporations have a "right of personal privacy," and they used constitutional arguments to try to back that up. The Court, however, refused to deal with the constitutional claim, ruling instead that the federal Freedom of Information Act's protection of the "personal privacy" in records a company has turned over to a government agency does not apply to corporate documents. That came in the decision in March in Federal Communications Commission v. AT&T.

It is, of course, a serious constitutional question. But not everyone is taking it seriously. A Maryland public relations firm, Murray Hill Inc., has been carrying on a lively spoof of the notion of corporations as people. It attempted to register itself as a candidate for Congress from Maryland. After candidate Romney spoke out in Iowa, the firm put out a press release saying it was keeping open its options about the 2012 presidential campaign.


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