Monday, December 16, 2013

Kens's Historical Perspective on Citizens United

Paul Kens, Texas State University-San Marcos, has posted Citizens United from a Historical Perspective: Corporate Person, Corporate Rights, and the Principle of Confiscation, a very timely essay, in light of the U.S. Supreme Court’s consideration of Hobby Lobby.  Here is the 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.

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