The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV

29 Pages Posted: 30 Apr 2015 Last revised: 12 Dec 2015

See all articles by Stewart Jay

Stewart Jay

University of Washington School of Law

Date Written: April 24, 2015

Abstract

Since the mid-nineteenth century, courts consistently have held that corporations cannot be citizens for purposes of the Privileges and Immunities Clause of Article I of the U.S. Constitution. Judges reasoned that because corporations were not humans, they were unable to be “citizens” eligible for the clause’s protection against discriminatory treatment by states. Yet the Supreme Court also held that corporations were citizens for purposes of federal judicial jurisdiction, as well as “persons” under the Fourteenth Amendment. Extending these constitutional protections to corporations is based on the idea that businesses are owned by actual people who are harmed when their companies suffer from arbitrary treatment by government. Precisely the same rationale was a major reason for including the Privileges and Immunities Clause in the Constitution.

This essay examines the history of the exclusion of corporations from Article IV, and compares it to the Court’s extension of Fourteenth Amendment rights and diversity jurisdiction in federal courts to business entities. In hindsight, it would have been more logical for the Court to have likewise decided that corporations should be treated as citizens for purposes of Article IV. When interstate corporations are harmed by state discrimination, the actual losers are individual shareholders. While it is highly unlikely that the Court would reverse more than 150 years of precedent and apply the clause to corporations, a study of the history involved reveals significant changes in attitudes about corporations and citizenship since the creation of the Constitution.

Keywords: privileges and immunities, constitutional law, constitutional history, legal history, corporations, citizens, citizenship, persons, Fourteenth Amendment, Article IV, diversity jurisdiction

Suggested Citation

Jay, Stewart, The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV (April 24, 2015). Hofstra Law Review, Vol. 44, No. 1, pp. 79-106 (2015); University of Washington School of Law Research Paper No. 2015-13. Available at SSRN: https://ssrn.com/abstract=2598869

Stewart Jay (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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