Professor Marcantel posted an interesting article to SSRN titled The Corporation as a ‘Real’ Constitutional Person (H/T Legal Theory Blog). The article explores how the status of the corporation was understood in early America. Here is the abstract:
For two centuries, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in doctrinal theory have the potential for wide impact. Earlier this year, the United States Supreme Court reignited that discussion when it delivered the opinion in Citizens’ United v. FEC. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court held that corporations are protected by the First Amendment, and in the process, reinvigorated the perennial, trifurcated break in corporate doctrinal discussion between concessionary theorists, aggregate theorists, and real entity theorists. More specifically, the majority, invoking the “original understanding” of the Constitution, appears to have adopted a real entity theory of the corporation. Nevertheless, the majority provided little contemporaneous documentary evidence to support its position — a gap that exists in the academic literature as well.
This Article fills a portion of that gap by analyzing documents contemporaneous to the drafting and ratification of the Constitution. Specifically, this Article defines the contemporaneous meaning of the words “people,” “person,” and “citizen” — the entities the Constitution explicitly attempts to protect — by examining the manner the drafters and ratifiers used those words during the Constitutional Convention, the ratification debates, the debates surrounding the Bill of Rights, and the debates surrounding the Fourteenth Amendment. Using those documents as the foundation for the analysis, this Article then argues that the manner the drafters and ratifiers used those terms during the debates is inconsistent with the concept of corporations as real constitutional entities.
Perhaps most interesting for my work on Original Citizenship is that the article explores the original understanding of the term “citizen.” I look forward to reading this article.