A Unified Framework to Adjudicate Corporate Constitutional Rights

Abstract

Notwithstanding the absence of explicit constitutional protections for corporations within the organic documents of the United States, the Supreme Court has extended constitutional protections to corporate entities in a variety of contexts. Nevertheless, the Court has, to date, failed to articulate a particular, unifying framework for adjudicating corporate constitutional rights. Thus, the Court’s extant jurisprudence provides no framework for explaining the panoply of existing corporate constitutional rights, distinguishing extended constitutional rights from those which corporations cannot exercise, or prospectively adjudicating the extension of constitutional rights to incorporated entities. Drawing on both the Court’s jurisprudence as well as existing scholarship in the area, this Article argues a unifying framework can be achieved by tempering the three dominant theoretical conceptions of corporate existence, combining the resulting composite with agency-based contract principles, and then subjecting the yield to both a textual limitation and a functional limitation.