The Constitutional Standing of Corporations
Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, 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 argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such analysis has implications for the interpretation of a range of contested constitutional questions. For example, Article III analysis helps us to understand why corporate standing is not appropriate if corporate rights threaten to conflict with claims brought by individuals, while in contrast, associations and nonprofits may more readily derivatively assert the third-party rights of members. By ignoring Article III constraints, and finding that a for-profit corporation could itself assert a statutory injury to the religious beliefs of its owners, the Supreme Court’s recent Hobby Lobby opinion threatens to erase the longstanding differences between owners and corporations, parties and third-parties, and for-profit corporations versus other types of entities. Only if Article III doctrine is faithfully applied can organizational standing to litigate constitutional rights effectively develop protections for individuals and organizations alike.
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Jody Freeman & David B. Spence
Thomas W. Merrill & Margaret L. Merrill