Person, State, or Not: The Place of Business Corporations in Our Constitutional Order

Business corporations are critical institutions in our democratic republican, market-based, economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives. Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare.

On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply to these state-like governance institutions.