This ConLawNOW submission is an excerpt from a previously published piece. The following abstract is from that piece.
UCLA Law Professor Adam Winkler has published an excellent book on the history of corporate rights. The book, We the Corporations: How American Businesses Won Their Civil Rights, “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’—the centuries-long struggle for equal rights for corporations.” The book has been highly praised by some of the greatest minds in corporate and constitutional law, and the praise is well-deserved. However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This response essay will focus on unpacking some of these assertions, hopefully helping to ensure that advocates who rely on the book will be informed as to alternative approaches to key issues.
Specifically, the propositions examined in this Essay include: (1) “corporate personhood has played only a small role in the expansion of constitutional rights to corporations,” (2) “the history of corporate rights has largely been a struggle between the disparate poles of personhood and piercing,” and (3) “in Dartmouth College …. Marshall was saying that corporations were too ethereal to be the basis for constitutional rights and that, instead, the court should focus on the corporation’s members.”
While I provide reasons for questioning each of the foregoing propositions, I ultimately conclude that none of these criticisms undermine the book’s overall value. Most, if not all, of the issues I identify may be viewed as providing alternative ways of thinking about what is essentially the same perspective. However, advocates relying on Winkler’s book who have not been alerted to these criticisms risk being caught off guard in ways that will undermine their objectives. Thus, this Essay will hopefully provide a useful adjunct to Winkler’s impressive work.
Stefan J. Padfield, The Personhood Paradox: Citizens United as Rejection of Corporate Personhood?, 11 ConLawNOW 41 (2019)