One of the questions posed in the Hobby Lobby case - and one answered in the affirmative in Citizens United - is whether a corporate entity has constitutional rights like free speech and free exercise of religion.
Two history professors point out that this is a recent opinion. The idea that corporations - as distinct entities - have rights is a recent invention.
- Click here for the article.Two history professors point out that this is a recent opinion. The idea that corporations - as distinct entities - have rights is a recent invention.
Until the mid-20th century, the corporation was seen as a special and artificial creature of the government. It has never been seen as entitled to the same array of rights guaranteed to citizens.
This view was held not only by lay people and legislators but by the justices of the court itself. Chief Justice John Marshall did not equivocate in Dartmouth College v. Woodward in 1819: “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.” In 1839, Chief Justice Roger Taney agreed wholeheartedly in Bank of Augusta v. Earle: “A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law. ... It is indeed a mere artificial being.”
These two powerful architects of original Supreme Court authority insisted upon this artificial status in order to hold early American corporations particularly accountable to the state and to the public at large. Most of America’s first corporations—bridge companies, water companies, transportation companies, banks, and insurance companies—were viewed as essentially public service corporations or public franchises. In addition to grants of property and public financing, the state usually accorded such entities special privileges like monopoly power, the power of eminent domain, or toll-taking authority. In return for those benefits, the government insisted on the special public obligations of corporations. Not only were corporations notexempted in any way from generally applicable regulatory laws, but they were routinely held to higher standards of public service, public accountability, social responsibility, and public trust.
