The Corporation as a 'Real' Constitutional Person

UC Davis Business Law Journal

35 Pages Posted: 5 Jun 2010 Last revised: 24 Oct 2010

Date Written: June 5, 2010


For two centuries, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in doctrinal theory have the potential for wide impact. Earlier this year, the United States Supreme Court reignited that discussion when it delivered the opinion in Citizens’ United v. FEC. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court held that corporations are protected by the First Amendment, and in the process, reinvigorated the perennial, trifurcated break in corporate doctrinal discussion between concessionary theorists, aggregate theorists, and real entity theorists. More specifically, the majority, invoking the “original understanding” of the Constitution, appears to have adopted a real entity theory of the corporation. Nevertheless, the majority provided little contemporaneous documentary evidence to support its position - a gap that exists in the academic literature as well. This Article fills a portion of that gap by analyzing documents contemporaneous to the drafting and ratification of the Constitution. Specifically, this Article defines the contemporaneous meaning of the words “people,” “person,” and “citizen” - the entities the Constitution explicitly attempts to protect - by examining the manner the drafters and ratifiers used those words during the Constitutional Convention, the ratification debates, the debates surrounding the Bill of Rights, and the debates surrounding the Fourteenth Amendment. Using those documents as the foundation for the analysis, this Article then argues that the manner the drafters and ratifiers used those terms during the debates is inconsistent with the concept of corporations as real constitutional entities.

Part II of this Article briefly discusses each of the traditional three constitutional theories of the corporation, beginning with concessionary theory and then moving to both aggregate theory and real entity theory. This Part additionally discusses the Court’s decision in Citizens United and the majority’s holding that corporations are real entities for constitutional purposes. Part III analyzes whether the majority’s decision is consistent with documents contemporaneous to the Constitution and its amendments in four sections. Section one discusses the language contained within the Constitution and more specifically the entities explicitly entitled to protection - “people,” “persons,” and “citizens.” This section then analyzes the language used during the Constitutional Convention, the language used in the Federalist Papers, the language used in contemporaneous state organic documents, and the definitions in contemporaneous dictionaries to determine the meaning of those words at the time the Constitution was drafted. Section two again focuses on the words “people,” “citizens,” and “persons” and their usage by the ratifiers during the ratification debates. Section three then turns to the Bill of Rights and discusses the entities explicitly protected in the language of the amendments - “people” and “persons.” This section analyzes the language the drafters and ratifiers of the Bill of Rights used to determine the contemporaneous meaning of those words. Additionally, this section analyzes the passive clauses of the Bill of Rights - the clauses that do not contain a subject - in combination with the language of the drafters and ratifiers of the amendments to determine the meaning of those clauses, focusing specific attention on the First, Sixth, and Seventh Amendments. Finally, section four analyzes the Fourteenth Amendment and the terms the Amendment explicitly protects - “persons” and “citizens.” The section then defines those terms using the debates of the Fourteenth Amendment as a guide. Taking all four sections together, this Part ultimately concludes that the drafters and ratifiers of the Constitution, and its amendments, used the words "people," "person," and "citizens" in a manner inconsistent with the notion of corporations as real constitutional entities.

Keywords: Constitution, Supreme Court, Corporations, Originalist, Originalism, Declaration of Independence, Citizens United, First Amendment, Bill of Rights, Corporate, Constitutional Person

Suggested Citation

Marcantel, Jonathan A., The Corporation as a 'Real' Constitutional Person (June 5, 2010). UC Davis Business Law Journal, Available at SSRN: or

Jonathan A. Marcantel (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

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