Is the U.S. Government a Corporation? The Corporate Origins of Modern Constitutionalism

Abstract

The U.S. Constitution is best understood not as a “social contract,” but as a popularly issued corporate charter. The earliest American colonies were literal corporations of the Crown and, like all corporations, were ruled by limited governments established by their charters. From this, Americans derived their understanding of what a constitution is — the written charter of a sovereign that ordains and limits a government. The key Federalist innovation was to substitute the People for the King as the chartering sovereign. This effectively transferred the “governance technology” of the corporation to the civil government — including the practice of delegating authority via a written charter, charter amendment, and judicial review. Federalists used these corporate practices to frame a government that united seeming irreconcilables — a government energetic yet limited, republican yet mixed, popular yet anti-populist — yielding a corporate solution to the problem of arbitrary rule. Leading founders considered this new government a literal chartered corporation of the People.

Keywords: constitution, constitutionalism, charter, social contract, popular sovereignty, judicial review