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Citizens United from a Historical Perspective: Corporate Person, Corporate Rights, and the Principle of Confiscation

49 Pages Posted: 14 Dec 2013  

Paul Kens

Texas State University

Date Written: September 24, 2013

Abstract

The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission is often criticized for having declared that corporations are persons with the same constitutional rights as human beings. Using standard theories of the nature of the corporation as a guide, this paper traces the concept of corporate personhood from its mythical birth in the 1886 Santa Clara case. This historical perspective reveals that the Court has never settled on one theory of the nature of the corporation. Even after Citizens United the concept of corporate person remains little more than a metaphor or legal fiction.

The real significance of Citizens United is that it ignored the traditional limitation on corporate constitutional rights. The idea of corporate constitutional rights springs from early Contract Clause doctrine holding that a state could not deprive a corporation of the essential object of its grant or confiscate corporate property. By ruling that the rights of corporations are not limited to issues that materially affect its business or property, the majority in Citizens United casually dismissed this principle of confiscation. It thus rejected both the most significant limitation on corporate constitutional rights and underlying rationale for giving corporations constitutional rights in the first place.

Keywords: Corporations, Liberty, Property, Constitutional Rights, Citizens United

Suggested Citation

Kens, Paul, Citizens United from a Historical Perspective: Corporate Person, Corporate Rights, and the Principle of Confiscation (September 24, 2013). Available at SSRN: https://ssrn.com/abstract=2367017 or http://dx.doi.org/10.2139/ssrn.2367017

Paul Kens (Contact Author)

Texas State University ( email )

601 University Drive
San Marcos, TX 78666-4616
United States
5124772309 (Phone)

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