The Constitutional Standing of Corporations

bgarrett

Are corporations “persons” with constitutional rights?  The Supreme Court has famously avoided addressing the issue head on.  In Citizens United, which like no other decision in recent memory elevated the importance of the question whether organizations can assert constitutional rights, the Court did not discuss what a corporation is: whether it is a pure creature of state law, a “real entity” that can exercise all or most of the legal rights of an individual person, or an aggregate entity that helps groups of people realize their interests.  Nevertheless, the Court has long recognized that corporations and organizations may litigate rights, for example, under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment. In contrast, organizations may not assert rights under, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others?

In this Article, I part company with many cogent critics who call the Court’s rulings ad hoc and unprincipled, and also with those who conversely argue that in Citizens United, the Court recognized corporations as a “real entity.”  Instead, I argue the Court’s approach is grounded in the concept of Article III standing.  A judge should ask this question: does the organization effectively represent the interests of individuals in protecting a given constitutional right?  Constitutional rights should not be “incorporated” against corporations. Conceived as a question of standing, rather than whether an organization “has” a constitutional right, a judge addresses standing but then conducts constitutional analysis as with an individual litigant.  Whether the substance of any particular constitutional right should be interpreted in a way that might privilege, say, business organizations, is a separate question, which can raise far more grounds for disagreement.  But I argue that it is a separate preliminary question whether an organization has standing to assert constitutional rights.  This theory of standing is normatively attractive, and has implications for the interpretation of a range of contested constitutional rights.  In the Article, I argue that some of the conventional understanding of Citizens United is wrong, and that several rulings, including in the Fourth Amendment and Fifth Amendment areas, should be reconsidered.

Finally, I explore how standing may not be appropriate if corporate constitutional rights are in tension with individual rights.  If the goal of permitting corporate constitutional litigation is to make litigation of the underlying constitutional rights more effective, then if there is tension between individual and organizational rights, or failure of the organization to adequately represent its constituents, then Courts should carefully scrutinize whether due process is violated or whether standing should even be recognized.  The Court’s organizational standing analysis has too often been cursory in its reasoning.  A clearer standard should be developed, focusing on whether the substantive constitutional right can be adequately and effectively litigated by the organization.

Corporate constitutional litigation is pervasive.  As Justice Frankfurter famously put it, “The history of American constitutional law in no small measure is the history of the impact of the modern corporation upon the American scene.”  This may be for good and for ill.  However, far more often than generally assumed, standing to litigate constitutional rights in the aggregate may effectively develop protections for individuals and organizations alike.

The full article is available here.