The Constitutional Standing of Corporations
Brandon L. Garrett
University of Virginia School of Law
February 20, 2014
University of Pennsylvania Law Review, Vol. 163, 2014
Virginia Public Law and Legal Theory Research Paper No. 2013-33
Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights 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 with those who conversely argue that in Citizens United, the Court recognized corporations as a “real entity.” Instead, I argue that the doctrine of Article III standing supplies the underlying general theory, by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its interests? A careful examination of standing when an organization seeks to assert a right is normatively attractive, and has implications for the interpretation of a range of contested constitutional questions. For example, Article III analysis helps us to understand why corporate standing is not appropriate if corporate rights threaten to conflict with constitutional claims brought by individuals, while in contrast, associations and nonprofits may more readily derivatively assert the third-party rights of members. Far more often, however, standing to litigate constitutional rights may effectively develop protections for individuals and organizations alike.
Number of Pages in PDF File: 66
Keywords: constitutional rights, corporations, standing, organizational standingAccepted Paper Series
Date posted: September 27, 2013 ; Last revised: March 3, 2014
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