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Volume 2, Issue 4
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Constitutional PersonhoodMichael Rivard, Esq.Page 2 of 4 It is a lot messier when you look at to the constitutional personhood of juridical persons. A number of different legal theories have evolved over the years. The original legal theory was that corporations are artificial entities. They are a creation of the State; therefore, they have no rights.
That theory quickly gave way as corporations became larger, as with railroads and things like that in the 1800s. Judges began looking at the corporation as an aggregate of natural persons. The shareholders needed protection. Then as companies became larger, the theory evolved that rights of corporations are not necessarily derived solely from their shareholders, but that the corporation itself is more of a separate entity for purposes of constitutional personhood. Because management may go against the interest of shareholders, at least for a period, the corporation has its own "will" that is determined by management. More recently, we have seen that the application of constitutional rights to entities depends of the nature of the constitutional right rather than the nature of the organization. Judges look at the history of the constitutional right, what it is designed to do, and then decide whether to grant that right to the corporation. These theories of constitutional personhood are applied in different ways. For property rights, it has long been accepted that corporations are constitutional persons under the aggregate theory. This makes sense, right? Corporations and partnerships are composed of individual investors who have property rights in the corporation. Thus, the corporation is granted constitutional property rights as a collection of individuals. On the other hand, constitutional liberty rights for corporations have steadily been evolving. You see cases like NAACP (National Association for the Advancement of Colored People), in which NAACP has standing to litigate under the aggregate theory. NAACP is an aggregate of individuals who have come together for political speech. Therefore, NAACP is a constitutional person. Then we see the natural entity theory, which is shown in Dow Chemical, where the Court uses words like, "Dow would have a reasonable expectation of privacy," as if Dow is a human being.
Finally, we see the Court turn to the theory of extending constitutional rights based on the history of the right rather than the status of the entity. This is illustrated in Belloti and Martin Linen.[1] These two cases are often combined in arguments. What comes out of this line of cases and legal theories is that there is no consistent approach used to determine the constitutional personhood of entities. A corporation is not a constitutional person for purposes of the right against self-incrimination, at least when I wrote this, but is a person for purposes of double jeopardy, freedom of speech and search and seizure. Interestingly, the self-incrimination case was a corporation or partnership with three individuals, so one would expect the aggregate theory to apply. We see very inconsistent results.Footnote 1. Bellotti - U.S. Supreme Court FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 U.S. 765 (1978) 435 U.S. 765 Martin Linen – U.S. Supreme Court UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564 (1977) 430 U.S. 564 |
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