The Constitutional Standing of Corporations

Brandon L. Garrett

University of Virginia School of Law

February 20, 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 standing

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Date posted: September 27, 2013 ; Last revised: March 13, 2014

Suggested Citation

Garrett, Brandon L., The Constitutional Standing of Corporations (February 20, 2014). Virginia Public Law and Legal Theory Research Paper No. 2013-33. Available at SSRN: http://ssrn.com/abstract=2330972

Contact Information

Brandon L. Garrett (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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