States' Rights Against Corporate Rights
62 Pages Posted: 18 May 2016 Last revised: 21 Feb 2017
Date Written: May 18, 2016
Most of the many critics who denounce the Supreme Court’s corporate-rights cases ground their complaint in consequentialist terms, at least in part. They see decisions such as Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., as entrenching corporate power, by constitutional or quasi-constitutional means, against what ought to be a supervening public will. This article argues that such a view of federal corporate rights is profoundly mistaken. Far from entrenching corporate power, the rights cases effectively delegate choices about corporate activities to a politically sensitive, if surprising, instrument: ordinary state legislation. In particular, this article advances two claims about the nature of states’ rights against corporate rights: first, under existing law the states can subvert the federal rights of their own corporations; second, and more speculatively, the states can also frustrate the federal rights of foreign corporations that do local business. The analysis suggests that reformers would do well to look to the state capitols rather than the halls of Washington. It also yields implications for the theory of interstate corporate regulation more generally.
Keywords: corporate rights, internal affairs, Citizens United, Hobby Lobby
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