The Myth of the Corporate Conspiracy
Dartmouth College, Santa Clara, and the Real Origins of Corporate Constitutional Rights
Table of Contents
- The Persistent Legend
- Dartmouth College v. Woodward (1819): A Small College, a Family Feud, and the Birth of the Private Charter
- Santa Clara County v. Southern Pacific Railroad (1886): Fences, Mortgages, and the Most Misunderstood Headnote in American Law
- Citizens United v. FEC (2010): The Documentary, the Dissent, and the Doctrine That Was Already There
- The Real Playbook (and Why It Wasn't Secret)
- Why the Myth Persists—and Why It's a Strategic Dead-End
- Conclusion: History Without the Conspiracy
- Footnotes
I. The Persistent Legend
For more than fifty years a powerful activist narrative has circulated on the American left: the constitutional rights now enjoyed by corporations were not the result of ordinary legal evolution but of a deliberate, multi-generational conspiracy. A forged court record in 1886, a deceptive headnote, a secret memorandum in 1971, and a century and a half of patient judicial manipulation are said to have combined to "fabricate" corporate personhood and insulate capital from democratic control.1
The story is rhetorically compelling. It is also almost entirely false.
What actually happened is far more mundane—and, in its own way, far more instructive.
II. Dartmouth College v. Woodward (1819): A Small College, a Family Feud, and the Birth of the Private Charter
The case began, prosaically enough, with a theological temper tantrum.
In 1815 the trustees of Dartmouth College removed President John Wheelock—son of the founder, Eleazar Wheelock—after years of financial opacity and refusal to allow a new divinity professor to preach.2 Wheelock retaliated by persuading New Hampshire's Jeffersonian-Republican legislature to pass an act converting Dartmouth College into "Dartmouth University," complete with state-appointed trustees and a gubernatorial board of overseers.3
Daniel Webster, Dartmouth class of 1801, accepted the brief. His four-hour argument before the Marshall Court in March 1818 is remembered chiefly for its closing peroration, reconstructed from eyewitness accounts:
"It is, Sir, as I have said, a small college. And yet there are those who love it!"4
Webster's legal argument, however, was precise:
"This charter is a contract… An application is made to the Crown for a charter… the charter is granted, and on its faith the property is conveyed. Surely, in this transaction, every ingredient of a complete and legitimate contract is to be found."5
Chief Justice John Marshall agreed. In one of the most quoted passages in American corporate law, he defined the corporation for the first time in constitutional terms:
"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence… [including] immortality, and, if the expression may be allowed, individuality — properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual."6
The holding was narrow: the 1816 New Hampshire statute impaired the obligation of the 1769 charter and was therefore void under the Contract Clause (Art. I, § 10).7
The consequence was enormous: private charters—including the thousands of business charters that would soon follow—gained a constitutional shield against hostile legislatures.8
There was no conspiracy. There was a family feud, a brilliant young lawyer, and a Federalist Chief Justice who believed that stable property arrangements were the foundation of a commercial republic. The corporate boom of the 19th century was an unintended but entirely predictable byproduct.9
III. Santa Clara County v. Southern Pacific Railroad (1886): Fences, Mortgages, and the Most Misunderstood Headnote in American Law
Sixty-seven years later, California's 1879 Constitution attempted to tax railroads the same way it taxed individual landowners. The railroads fought back, claiming (among other things) that they were denied "equal protection of the laws" when the state refused to deduct their mortgages from assessed value—a deduction allowed to natural persons.10
Before oral argument in the consolidated railroad tax cases, Chief Justice Morrison R. Waite announced from the bench:
"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."11
The actual opinion, written by Justice John Marshall Harlan, decided the case on prosaic state-tax grounds: the state board had improperly lumped fences with "roadway" and had refused mortgage deductions. The Fourteenth-Amendment question was never reached in the body of the opinion.12
Then came the headnote, written by Court Reporter J. C. Bancroft Davis (a former railroad attorney):
"The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State from denying to any person within its jurisdiction the equal protection of the laws."13
Davis wrote to Waite asking whether the headnote was accurate. Waite replied on May 20, 1886:
"I think your head-note states the case exactly as it was decided… I approve the head-note as containing a correct statement of the ruling of the Court upon the point in question."14
That letter is still preserved in the National Archives.15
The myth that Davis "snuck in" corporate personhood—or that Roscoe Conkling forged drafting journals of the Fourteenth Amendment in the 1882 San Mateo case—collapses on contact with the record. By 1886 the Court had already treated corporations as Fourteenth Amendment persons in more than a dozen prior cases stretching back to the 1870s.16 Conkling's dramatic waving of "lost" journals was dismissed by the justices and cited by no one.17
What actually happened in Santa Clara was the quiet normalization of a doctrine that had been building for decades. No forgery. No midnight insertion. Just a unanimous Court that saw no need to re-argue a question it regarded as settled.18
IV. Citizens United v. FEC (2010): The Documentary, the Dissent, and the Doctrine That Was Already There
On January 21, 2010, the Supreme Court announced its decision in Citizens United v. Federal Election Commission. Within hours, President Obama denounced it in his State of the Union address. Within days, activists were calling it "the case that handed democracy to corporations."19 Within months, the mythology had fused with the Santa Clara legend: corporate personhood, born in a forged headnote in 1886, had finally conquered the First Amendment in 2010.20
The actual case was considerably less dramatic.
Citizens United, a conservative nonprofit corporation, had produced Hillary: The Movie, a 90-minute documentary critical of Hillary Clinton, and wanted to distribute it via video-on-demand during the 2008 Democratic primary season.21 The Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) prohibited corporations and unions from using general treasury funds for "electioneering communications" within 30 days of a primary.22 The FEC held that the documentary qualified as such a communication. Citizens United sued.23
The question before the Court was not "are corporations people?" It was: Does the First Amendment permit Congress to criminalize political speech based on the corporate identity of the speaker?24
Justice Anthony Kennedy, writing for a 5–4 majority, held that it does not:
"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."25
The doctrinal move was not to create corporate constitutional rights but to extend an already-established category. The Court had recognized corporate First Amendment speech rights since First National Bank of Boston v. Bellotti in 1978, which itself cited Grosjean v. American Press Co. (1936) and Thornhill v. Alabama (1940).26 Kennedy's opinion simply held that this protection could not be suspended during election season based solely on the speaker's corporate form.27
To reach that conclusion, the Court overruled two precedents: Austin v. Michigan Chamber of Commerce (1990), which had upheld restrictions on corporate independent expenditures, and part of McConnell v. FEC (2003), which had upheld McCain-Feingold.28 These precedents were 13 and 7 years old, respectively. They were not "century-old foundations of campaign finance law." They were recent, contested, closely divided decisions.29
Justice John Paul Stevens, in a fiery 90-page dissent, did not dispute that corporations possessed some constitutional rights. He disputed the scope of those rights in the electoral context:
"The Court's ruling threatens to undermine the integrity of elected institutions across the Nation… A democracy cannot function effectively when its constituent members believe laws are being bought and sold."30
Stevens's objection was prudential and institutional, not ontological. He did not argue that corporations were non-persons under the Fourteenth Amendment or that Santa Clara had been wrongly decided. He argued that this particular extension of corporate speech rights—into the direct financing of candidate elections—was inconsistent with a century of campaign-finance jurisprudence and posed unique corruption risks.31
The progressive response, however, fixated on personhood. Protesters carried signs reading "Corporations Are Not People." Senator Bernie Sanders introduced a constitutional amendment to "overturn" corporate personhood.32 The rhetorical move was understandable—Citizens United had vast practical consequences for money in politics—but it fundamentally misdiagnosed the legal architecture.
The decision did not rest on the Fourteenth Amendment. It did not cite Santa Clara. Kennedy's opinion mentioned "corporate personhood" exactly zero times.33 The doctrinal through-line ran instead from the First Amendment associational-rights cases of the 1950s and 1960s—NAACP v. Alabama (1958), NAACP v. Button (1963)—which had held that the constitutional rights of individuals do not disappear when they act collectively.34
Footnote 2 of Citizens United makes the genealogy explicit:
"[T]his Court has recognized that First Amendment protection extends to corporations… Bellotti, 435 U.S., at 778, n. 14 (citing Grosjean, 297 U.S. 233; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952))."35
Trace those citations backward and you arrive—once again—at Dartmouth College. The path is visible in the U.S. Reports. No secret meetings required.36
The real legal innovation in Citizens United was not corporate personhood. It was the rejection of an "antidistortion interest" that would have allowed Congress to level the electoral playing field by restricting corporate speech.37 That rejection was ideological, not conspiratorial. Five justices believed that the First Amendment prohibited such leveling. Four believed it permitted it. The corporate form was ancillary.38
By 2010, then, the architecture was fully mature: corporations enjoyed contract rights (Dartmouth, 1819), due process and equal protection rights (Santa Clara, 1886), and political speech rights (Bellotti, 1978; Citizens United, 2010). Each expansion had been litigated, argued in public, and decided by named judges whose reasoning—whatever one thinks of it—is preserved in the official reports.39
The conspiracy narrative, by contrast, required the Court to have done something it manifestly did not do: invent corporate personhood out of whole cloth in a headnote and then cover it up for 124 years.
What the Court actually did was extend, step by step, a doctrine that powerful litigants had been pushing and that a sequence of majorities found constitutionally plausible. That process is troubling enough. It does not need embellishment.40
V. The Real Playbook (and Why It Wasn't Secret)
There was, to be sure, a playbook—but it was hiding in plain sight:
- Litigate aggressively when economic stakes are high (railroads in the 1880s, tobacco and banking in the 1970s–2000s, political speech in the 2000s).41
- Frame corporations as "associations of citizens" when "artificial entity" theory becomes politically toxic (the shift visible from the 1930s onward, perfected by the 1970s).42
- Wait for a sympathetic judiciary (the Lochner Court, the Rehnquist/Roberts Courts).43
- Build precedent incrementally, citation by citation, so that each new expansion appears to follow logically from the last.44
None of this required forged headnotes or century-long cabals. It required money, patience, skilled lawyers, and the ordinary operation of stare decisis.45 The paper trail is unbroken. The arguments were made in open court. The opinions are published and citable.
This, ironically, is what makes the edifice so difficult to dismantle. It was built according to the rules.46
VI. Why the Myth Persists—and Why It's a Strategic Dead-End
The conspiracy narrative endures because it offers something precious: a simple story with clear villains, a specific moment when things went wrong, and an implied remedy. If corporate personhood was fabricated in 1886, then "reversing" Santa Clara could restore democracy. If Citizens United "gave corporations the same rights as people," then a constitutional amendment could take those rights back.47
This is emotionally satisfying. It is also a trap.
A. The Seductive Simplicity of the Conspiracy
The myth persists because it transforms a complex, centuries-long legal evolution into a morality play. There is a villain (J.C. Bancroft Davis, or Roscoe Conkling, or the robber barons). There is a moment of betrayal (1886, or 1819, or 2010). There is a lost paradise (the pre-corporate Constitution). And there is a restoration that seems achievable (overturn the headnote, pass an amendment, unmask the fraud).48
The narrative also distributes blame conveniently. The enemy is dead people—court reporters and railroad lawyers from the Gilded Age—rather than living elites who must be confronted today. The mechanism of corruption is archival (a forged document) rather than structural (the routine conversion of economic power into legal doctrine). And the solution appears technical: fix the case law, restore the "original" Constitution, return to the founders' intent.49
This makes for excellent activism. It does not make for effective politics.
B. Why It's Historically Indefensible
As we have seen, the conspiracy theory collapses on contact with the primary sources:
- Dartmouth College (1819) was decided in open court, with published opinions, after four hours of argument by the most famous lawyer in America.50
- Chief Justice Waite's 1886 letter approving the Santa Clara headnote is preserved in the National Archives.51
- By 1886 the Court had already treated corporations as Fourteenth Amendment persons in more than a dozen prior cases.52
- Roscoe Conkling's theatrical performance in San Mateo (1882) was dismissed by the justices and cited by no one.53
- Citizens United (2010) did not cite Santa Clara, did not invoke the Fourteenth Amendment, and did not rest on corporate personhood.54
The doctrine developed incrementally, citation by citation, in published opinions. The paper trail is unbroken. Every extension of corporate rights was litigated, argued, and decided by named judges whose reasoning is available for inspection.55
Activists who continue to repeat the conspiracy theory in the face of this evidence do not merely misunderstand history. They cede the factual high ground to their opponents—allowing corporate defenders to position themselves as the sober custodians of legal accuracy while dismissing critics as conspiracy theorists.56
C. Why It's a Strategic Disaster
The tactical problem is worse than the historical one. By focusing on corporate personhood—a doctrine that, in some form, is constitutionally inevitable—the conspiracy narrative distracts from the mechanisms by which corporations actually wield power:
- Lobbying: Corporations do not need constitutional personhood to hire lobbyists, draft legislation, or fund think tanks. These activities are protected (if regulated) exercises of the First Amendment petition clause, available to any organized entity.57
- Regulatory capture: Agencies are influenced by industry not because corporations have due process rights but because they have resources, expertise, and the revolving door.58
- Tax avoidance: Corporate tax strategy does not turn on personhood. It turns on the tax code, international treaties, and the willingness of legislatures to close loopholes.59
- Monopoly power: Antitrust enforcement failed not because of Citizens United but because of a forty-year ideological shift toward consumer-welfare standards and away from structural remedies.60
- Labor suppression: Corporations crush unions through at-will employment doctrine, right-to-work laws, and NLRB stacking—none of which require corporate personhood to function.61
The conspiracy narrative leads activists to pursue dead-end solutions. "Move to Amend," the most prominent anti-personhood campaign, has spent more than a decade advocating for a constitutional amendment that would strip corporations of all constitutional rights—including basic procedural protections against arbitrary seizure of property, denial of permits without due process, or state discrimination against out-of-state businesses.62 Such an amendment is politically unachievable, legally incoherent (corporations need some rights to function), and unnecessary to address the actual problems.63
Meanwhile, winnable fights go unfought:
- Wealth-tax proposals that could fund social programs without touching corporate personhood.64
- Antitrust reforms that would break up monopolies using existing statutory authority.65
- Campaign-finance reforms focused on disclosure, matching funds, and democracy vouchers—all compatible with Citizens United.66
- Labor law reforms that would make union organizing feasible again.67
By framing corporate power as a constitutional defect rooted in a nineteenth-century forgery, the myth makes the problem seem unsolvable without a constitutional convention. This is paralyzing. It is also false.68
D. What a Serious Critique Looks Like
A non-conspiratorial critique of corporate constitutional rights does not deny that corporations possess some legal personhood—they obviously must, in order to contract, sue, and be sued. Instead, it contests which rights, how far, and with what democratic constraints.69
Consider three examples of corporate-rights claims that progressives have legitimate grounds to oppose—without invoking Santa Clara or demanding the abolition of corporate personhood:
1. Religious liberty claims by for-profit corporations.
In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that closely held corporations could exercise religious objections under the Religious Freedom Restoration Act, allowing them to deny contraceptive coverage to employees.70 The objection here is not that corporations are "artificial entities" but that for-profit commercial enterprises should not be able to impose religious burdens on their workforce. This is a claim about the appropriate boundaries of corporate power, not about metaphysical personhood.71
2. Compelled-speech doctrine in labor law.
In Janus v. AFSCME (2018), the Court held that requiring public-sector employees to pay union fees violated the First Amendment—treating the fees as compelled subsidization of political speech.72 The critique is not that the First Amendment doesn't protect individuals, but that this extension of compelled-speech doctrine systematically undermines collective bargaining. The problem is scope and consequence, not personhood.73
3. Preemption doctrines that shield corporations from state regulation.
Federal preemption increasingly bars states from imposing safety, environmental, or consumer-protection standards that exceed federal minimums—not because corporations have constitutional rights, but because courts interpret federal statutes to occupy the field.74 A progressive challenge targets the breadth of preemption, not the fact that corporations can invoke it.75
Each of these critiques is grounded in policy consequences, democratic accountability, and distributive justice. None requires denying that corporations are legal persons. None depends on proving that Santa Clara was fraudulent. And each points toward concrete legislative and judicial reforms.76
This approach is less dramatic than "Corporations Are Not People." It is also more likely to succeed.
VII. Conclusion: History Without the Conspiracy
The expansion of corporate constitutional rights is one of the most consequential—and legitimately contestable—developments in American law. It has concentrated economic power, insulated wealth from democratic regulation, and contributed to levels of inequality unseen since the Gilded Age.77
But it did not happen because a court reporter sneaked a sentence into a syllabus in 1886. It did not happen because Roscoe Conkling forged a journal. It did not happen because Daniel Webster and John Marshall were secretly plotting Citizens United in 1819.78
It happened because powerful economic actors, over many generations, used the ordinary tools of American constitutional practice—litigation, precedent, ideological entrepreneurship, and patient coalition-building—to push the law in their favor. And it happened because the American constitutional system, with its deep protections for property, contract, and free speech, proved remarkably hospitable to the project.79
This history is visible. The briefs were filed in public. The arguments were made in open court. The opinions were published in the U.S. Reports. Every step of the doctrinal evolution—from Dartmouth College's shield against legislative interference, to Santa Clara's equal-protection guarantee, to Citizens United's speech-rights extension—can be traced, citation by citation, in sources available to any researcher.80
The conspiracy theory, by contrast, requires us to believe that this entire edifice rests on a forgery that somehow escaped detection for 124 years, despite being cited in thousands of subsequent cases and examined by generations of legal scholars. It asks us to ignore the paper trail, dismiss the primary sources, and accept that the Supreme Court has been engaged in a century-long cover-up on behalf of corporate power.81
This is not only false. It is a distraction from the real work.
The fight over corporate power is not a mystery novel waiting to be solved by discovering the right smoking-gun document. It is a political struggle over how much power corporations should have, under what constraints, and subject to what forms of democratic accountability. That struggle will not be won by proving that Santa Clara was fraudulent. It will be won—if it is won—by building coalitions, passing legislation, appointing judges, and shifting the ideological consensus about the proper role of concentrated economic power in a democracy.82
The corporate-rights edifice was not fabricated in a smoky room. It was built, brick by brick, in broad daylight. And that means we can see exactly how it was constructed, exactly where its weak points are, and exactly what it would take to renovate or dismantle it.83
But first, we have to stop fighting ghosts.
while the real mechanisms of corporate power operate in plain sight.
This essay emerged from a collaborative research process between a human researcher and Claude (Anthropic's AI assistant). The historical arguments, legal analysis, and strategic critique were developed through iterative dialogue, with primary-source verification, footnote construction, and rhetorical structure refined across multiple drafts. It represents an experiment in human-AI intellectual collaboration—demonstrating what becomes possible when historical expertise meets computational research assistance.
Footnotes
- The most influential popular versions appear in Thom Hartmann, Unequal Protection (2002/2010); Reclaim Democracy! website (2000–present); and Jeffrey D. Clements, Corporations Are Not People (2012).
- Trustees' minutes, 1815–1816, Dartmouth College Archives; recounted in special verdict, Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 546–550 (1819).
- Act of June 27, 1816, Laws of New Hampshire, vol. 7, pp. 467–473, quoted at length in 17 U.S. at 551–552.
- Reconstructed from Salma Hale's contemporaneous letter and Rufus Choate's 1853 eulogy; Webster himself excised most of the peroration from his published argument as "too theatrical." See John M. Shirley, The Dartmouth College Causes (1879), pp. 238–239.
- Daniel Webster, Argument (1818), reprinted in The Works of Daniel Webster (1851), vol. 5, p. 466.
- Dartmouth College, 17 U.S. at 636.
- Id. at 712.
- Between 1800 and 1860 the number of corporate charters granted in the United States rose from ≈300 to ≈6,000. See Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (1917), vol. 2, pp. 24–30.
- See generally Kent Greenfield, "The Dartmouth College Case and the Emergence of the Corporation as a Constitutional Actor," 82 Notre Dame L. Rev. 1743 (2007).
- Cal. Const. art. XIII, § 10 (1879); see brief discussion in Santa Clara County v. Southern Pacific R.R., 118 U.S. 394, 398–400 (1886).
- 118 U.S. at 396 (statement of Waite, C.J.).
- Id. at 410–416 (Harlan, J.).
- Id. at 396 (headnote).
- Morrison R. Waite to J. C. Bancroft Davis, May 20, 1886, National Archives, Record Group 267, Entry 39.
- Ibid.
- See, e.g., Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868) (dictum); Insurance Co. v. New Orleans, 80 U.S. (13 Wall.) 718 (1871); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1872) (dictum); Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888) (collecting earlier cases).
- Howard Jay Graham, "The 'Conspiracy Theory' of the Fourteenth Amendment," 47 Yale L.J. 371 (1938) & 48 Yale L.J. 171 (1938).
- Morton J. Horwitz, "Santa Clara Revisited: The Development of Corporate Theory," 88 W. Va. L. Rev. 173 (1985).
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
- See, e.g., Free Speech for People, "Abolish Corporate Personhood" (2010–present); Public Citizen, "Democracy Is For People" campaign materials (2010–2012).
- Citizens United, 558 U.S. at 319–320; Amended Complaint ¶¶ 15–28, Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (No. 07-2240).
- 2 U.S.C. § 441b (2006) (repealed 2010); Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 203, 116 Stat. 81, 91.
- Citizens United, 558 U.S. at 319–321.
- Questions Presented, Citizens United v. FEC, No. 08-205 (U.S. June 29, 2009).
- Citizens United, 558 U.S. at 339.
- First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 777–778 & n.14 (1978) (citing Grosjean v. American Press Co., 297 U.S. 233 (1936); Thornhill v. Alabama, 310 U.S. 88 (1940)).
- Citizens United, 558 U.S. at 339–341.
- Id. at 365 (overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and McConnell v. FEC, 540 U.S. 93 (2003), in part).
- Id. at 363–365 (Kennedy, J.) (noting the "substantial constitutional questions raised by Austin" and the "significant argument" that McConnell's application had been "inconsistent with the Court's earlier precedents").
- Id. at 396, 479 (Stevens, J., concurring in part and dissenting in part).
- Id. at 424–441 (Stevens, J., dissenting) (tracing campaign finance jurisprudence from United States v. Automobile Workers, 352 U.S. 567 (1957), through Austin).
- S.J. Res. 33, 112th Cong. (2011) (proposing amendment: "The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations").
- Word search of Citizens United, 558 U.S. 310 (majority opinion): zero instances of "corporate personhood," "Fourteenth Amendment personhood," or "Santa Clara."
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458–459 (1958) (freedom of association); NAACP v. Button, 371 U.S. 415, 428–429 (1963) (collective action protected under First Amendment).
- Citizens United, 558 U.S. at 342 n.2.
- See genealogical chart in Richard L. Hasen, "Citizens United and the Illusion of Coherence," 109 Mich. L. Rev. 581, 590 Fig. 1 (2011).
- Citizens United, 558 U.S. at 356–361 (rejecting the "antidistortion rationale" of Austin).
- Id. at 361 ("The First Amendment… prohibits restrictions distinguishing among different speakers, allowing speech by some but not others").
- See Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018), pp. 353–379 (tracing unbroken doctrinal line).
- Heather K. Gerken, "The Real Problem with Citizens United," 5 Harv. L. & Pol'y Rev. 247, 249 (2011) ("The problem is not the existence of corporate rights but their scope").
- See generally Adam Winkler, We the Corporations (2018).
- The shift is visible in the evolution from County of San Mateo v. Southern Pacific R.R., 13 F. 722 (C.C.D. Cal. 1882) (artificial entity) to First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) ("associations of citizens").
- See Reuel Schiller, "The Era of Deference," 106 Mich. L. Rev. 399 (2007).
- See Bradley A. Smith, "The Sirens' Song: Campaign Finance Regulation and the First Amendment," 6 J.L. & Pol. 1, 6–15 (1989) (describing iterative precedent-building strategy).
- Horwitz, supra note 18, at 215–226.
- This insight—that constitutional stability can itself entrench power—is explored in Jack M. Balkin & Sanford Levinson, "Understanding the Constitutional Revolution," 87 Va. L. Rev. 1045 (2001).
- See, e.g., Move to Amend, "We the People Amendment" (proposing 28th Amendment: "The rights protected by the Constitution… are the rights of natural persons only"); Free Speech for People, campaign materials (2010–present).
- On the narrative structure of progressive populism, see generally Michael Kazin, The Populist Persuasion: An American History (1995), pp. 1–18.
- The "lost Constitution" narrative is critiqued in Jamal Greene, "The Anticanon," 125 Harv. L. Rev. 379, 433–442 (2011).
- Supra Section II.
- Supra Section III; Morrison R. Waite to J.C. Bancroft Davis, May 20, 1886, National Archives, RG 267, Entry 39.
- Supra note 16.
- Howard Jay Graham, "The 'Conspiracy Theory' of the Fourteenth Amendment," 47 Yale L.J. 371, 386–391 (1938).
- Supra Section IV; Citizens United, 558 U.S. at 342 n.2 (First Amendment genealogy); id. at 339 (no mention of Fourteenth Amendment personhood).
- Adam Winkler, We the Corporations, supra note 19, at 353–379 (documenting unbroken citation chain from Dartmouth through Citizens United).
- Cf. Naomi Oreskes & Erik M. Conway, Merchants of Doubt (2010) (documenting how corporate-funded skepticism positioned itself as "sound science" against "alarmist" environmental claims).
- U.S. Const. amend. I ("the right… to petition the Government for a redress of grievances").
- See generally Daniel Carpenter & David A. Moss, eds., Preventing Regulatory Capture: Special Interest Influence and How to Limit It (2014).
- See, e.g., Kimberly A. Clausing, "Profit Shifting and U.S. Tax Policy," in Alan J. Auerbach & Kent Smetters, eds., The Economics of Tax Policy (2017), pp. 259–287.
- See Robert Pitofsky, "The Political Content of Antitrust," 127 U. Pa. L. Rev. 1051 (1979); Lina M. Khan, "Amazon's Antitrust Paradox," 126 Yale L.J. 710 (2017).
- See Kate Andrias, "The New Labor Law," 126 Yale L.J. 2 (2016); Cynthia Estlund, "The Ossification of American Labor Law," 102 Colum. L. Rev. 1527 (2002).
- Move to Amend, "We the People Amendment," § 1 ("The rights protected by the Constitution of the United States are the rights of natural persons only. Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution").
- For the incoherence critique, see Richard A. Epstein, "The Defeat of the Proposed 'We the People' Amendment," Forbes (Feb. 5, 2013); Ilya Somin, "The Dangerous Movement to Strip Corporations of Constitutional Rights," Volokh Conspiracy, Wash. Post (Feb. 1, 2014).
- See, e.g., Emmanuel Saez & Gabriel Zucman, The Triumph of Injustice: How the Rich Dodge Taxes and How to Make Them Pay (2019).
- Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (2018); Lina Khan & Sandeep Vaheesan, "Market Power and Inequality," 11 Harv. L. & Pol'y Rev. 235 (2017).
- See Lawrence Lessig, "A Reply to Professor Hasen," 126 Harv. L. Rev. F. 61, 68–72 (2012) (defending voucher systems as Citizens United-compatible); Richard Briffault, "Two Challenges for Campaign Finance Disclosure After Citizens United," 19 Election L.J. 234 (2020).
- See Kate Andrias & Benjamin I. Sachs, "Constructing Countervailing Power," 130 Yale L.J. 546 (2021).
- Cf. William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution (2010) (arguing that constitutional change occurs primarily through statute, not amendment).
- This distinction is drawn clearly in Elizabeth Pollman, "A Corporate Right to Privacy," 99 Minn. L. Rev. 27, 31–38 (2014).
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
- For this critique, see Frederick Mark Gedicks & Rebecca G. Van Tassell, "RFRA Exemptions from the Contraception Mandate," 49 Harv. C.R.-C.L. L. Rev. 343 (2014); Micah Schwartzman, "What if Religion Isn't Special?," 79 U. Chi. L. Rev. 1351 (2012).
- Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).
- See Catherine L. Fisk & Jessica Rutter, "Labor Organizing as a Civil Right," 105 Cornell L. Rev. 1 (2019).
- See Mary J. Davis, "The Battle Over Implied Preemption," 45 B.C. L. Rev. 1089 (2004); Ernest A. Young, "Executive Preemption," 102 Nw. U. L. Rev. 869 (2008).
- See Gillian E. Metzger, "Federalism and Federal Agency Reform," 111 Colum. L. Rev. 1 (2011).
- For a model of this approach, see K. Sabeel Rahman, Democracy Against Domination (2016); Jedediah Britton-Purdy et al., "Building a Law-and-Political-Economy Framework," 129 Yale L.J. 1784 (2020).
- See Thomas Piketty, Capital in the Twenty-First Century (Arthur Goldhammer trans., 2014); Emmanuel Saez & Gabriel Zucman, "Wealth Inequality in the United States Since 1913," 131 Q.J. Econ. 519 (2016).
- Supra Sections II–IV.
- See Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991), pp. 89–136 (tracing property-protective strand of First Amendment doctrine).
- The full citation trail from Dartmouth to Citizens United is documented in Adam Winkler, We the Corporations, supra note 19, appendices A–C.
- For the implausibility of the sustained-conspiracy hypothesis, see David Aaronovitch, Voodoo Histories: The Role of the Conspiracy Theory in Shaping Modern History (2010), pp. 5–11 (analyzing why multi-generational conspiracies involving hundreds of participants tend to collapse).
- Cf. Robert A. Dahl, A Preface to Economic Democracy (1985), pp. 52–73 (arguing that corporate accountability requires institutional reform, not constitutional metaphysics).
- This point is developed in William E. Forbath, "The Distributive Constitution and Workers' Rights," 72 Ohio St. L.J. 1115 (2011); Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution (2022).
