The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

No, Corporations Aren't People, and It's a Good Thing, Too

A new book explains that denying corporate personhood has been the key to protecting the rights of shareholders


UCLA Law Professor Adam Winkler's We the Corporations: How American Businesses Won Their Civil Rights, which I reviewed for the Claremont Review of Books, turns on its head the conventional wisdom about how "corporate personhood" relates to the ability of corporations to assert constitutional rights. Winkler explains that when corporations have been treated like "people," courts have been willing to put significant restrictions on corporations' ability to assert constitutional rights, because corporate persons as creations of the state have fewer rights than do natural persons. However, starting in the 1930s, as a product of (ironically?) liberal Supreme Court justices who sought to ensure that newspaper corporations could assert First Amendment rights, judical decisions began to see corporations as representing the rights of their natural-person shareholders, rather than as separate corporate "people."

I learned a lot from this book, and was especially intrigued by its discussion of the influence of colonial charters on American constitutional development.

My review criticizes the book, on the other hand, for neglecting early religious freedom cases involving corporations, conflating free market arguments with pro-corporation ones, neglecting the importance of the incorporation doctrine in establishing corporate rights, wildly overstating the importance of the "Powell memo," failing to reckon with the partisan reasons Democrats and liberals support campaign finance reform, and more generally accepting dubious progressive shibboleths such as the "race to the bottom" as valid.