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Excerpted From: Evelyn Atkinson, Frankenstein's Baby: The Forgotten History of Corporations, Race, and Equal Protection, 108 Virginia Law Review 581 (May, 2022) (342 Footnotes) (Full Document)


EvelynAtkinsonSince the controversial cases of Citizens United v. Federal Election Commission and Burwell v. Hobby Lobby, which recognized the political speech and religious freedom rights of corporations, respectively, activist groups have been lobbying for a constitutional amendment to eliminate corporate constitutional personhood. Granting corporations constitutional rights, they argue, gives powerful mega-corporations even greater means to avoid regulation and manipulate elections, thus threatening “the democratic promise of America.” In 2019, Rep. Pramila Jayapal (D-WA) introduced a bill to provide that “the rights extended by the Constitution are the rights of natural persons only” and that corporations “shall have no rights under this Constitution.” Supporters of this amendment showcase buttons and bumper stickers that proclaim: “Corporations are not People!”

Corporate constitutional rights have been debated since the early years of the American Republic. Missing from histories of corporate personhood, however, is the central role that race played in the development of corporate constitutional rights. This Article uncovers this link by highlighting the strategy of a group of corporate lawyers and Ninth Circuit judges to expand the Fourteenth Amendment using cases involving both corporations and race. As this Article reveals, modern ideas about corporate personhood are predicated on a historical analogy between corporate shareholders and racial minorities. Yet racial analogies not only helped corporations gain constitutional rights; corporations themselves created constitutional guarantees that ultimately protected racial minorities. This neglected history shows that corporations have been crucial players in shaping rights guarantees--particularly an expansive interpretation of equal protection under the Fourteenth Amendment--that apply to individuals as well. In revealing these complex interconnections, this Article exposes the multifaceted legacy of litigation over corporate personhood in the development of modern equal protection jurisprudence.

This Article juxtaposes two seminal cases, decided on the same day in 1886 and brought by the same lawyers: Santa Clara County v. Southern Pacific Railroad, credited with establishing corporate Fourteenth Amendment rights, and Yick Wo v. Hopkins, a touchstone of modern civil rights jurisprudence. This Article uncovers the conjoined history of these two Fourteenth Amendment cases, one involving a corporation and the other a Chinese immigrant, and their antecedents. Drawing on little-known archival sources, it traces how the same coterie of corporate lawyers simultaneously brought Fourteenth Amendment cases involving Chinese and corporate litigants before the sympathetic Ninth Circuit in order to strategically craft a broad interpretation of the Equal Protection Clause that applied to all “persons,” natural and artificial alike. Although in the Slaughter-House Cases the Supreme Court had suggested that it would read the Fourteenth Amendment narrowly, in Yick Wo and Santa Clara the Court changed course and adopted the Ninth Circuit's expansive interpretation of equal protection, a doctrinal shift with lasting effects today.

This is not a story of unintended consequences. By expanding the scope of the Equal Protection Clause to include Chinese immigrants, corporate lawyers were able to use the Chinese cases to draw a through-line from African Americans--the original beneficiaries of the Fourteenth Amendment--to Chinese immigrants, to corporate shareholders. This comparison was made possible because corporate lawyers and federal judges intentionally portrayed the corporation as simply an aggregate of rights-bearing shareholders who did not forsake their constitutional rights when they joined the corporation. In this framing, shareholders were members of a persecuted group, the same as racial minorities.

This view of the corporation as solely an aggregate of rights-bearing shareholders was at odds with an older common law vision of the corporation as both an aggregate of individuals and a separate legal person with special rights and duties distinct from those of “natural” persons. In Part I below, this Article exposes a contour of common law corporate personhood that has not previously been noted: incorporation was a status in which corporate legal persons existed in a hierarchical relationship with the public, akin to master-servant or parent-child. The common law view of the corporation as a “child” or “servant” of the public justified more stringent state regulation of corporations than of individuals: the state was the benevolent parent, overseeing its corporate child to ensure the corporation acted in the public interest.

Yet as Part II discusses, throughout the nineteenth century, corporate lawyers challenged this view, arguing that corporations were not “children” who owed a special duty of obedience to the parental state but private, profit-making entities whose interests were unrelated or even potentially opposed to those of the public. In this view, the corporation was a naturally arising market phenomenon, akin to any other private market actor, with no special obligation to the public welfare. In support of this argument, corporate lawyers reframed the corporation not as a group of individuals authorized to act as one “artificial,” “legal person” for certain purposes, but as solely an aggregation of constitutional-rights-bearing shareholders. By framing the corporation simply as a collection of private, rights-bearing individuals, corporate lawyers were able to argue that the rights and duties of corporations were simply the rights and duties of the natural persons who composed them, and no more.

This debate over whether the corporation was a state creation granted legal personhood in certain contexts for the purpose of furthering the public interest, or simply a group of private, rights-bearing individuals pursuing their own economic gain, was central to the cases involving corporate Fourteenth Amendment rights. While Morton Horwitz, Gregory Mark, and others have shown that key to the Ninth Circuit's reasoning in Santa Clara was a view of the corporation as an aggregate of shareholders, they have not examined the equally viable, alternative vision of the corporation as a “child of the state” presented by opposing counsel and reflected in public opinion. More importantly, they have overlooked the racial analogy underlying the precedents to Santa Clara on which the doctrine of corporate constitutional personhood was built. This Article reveals the background and reasoning behind this significant judicial reframing of corporate personhood: the aggregate theory of the corporation allowed corporate lawyers and judges to analogize shareholders to racial minorities as similarly persecuted groups targeted by discriminatory legislation.

This analogy, of course, disregarded the immense power discrepancy between corporate shareholders and persecuted racial groups. By holding that the Equal Protection Clause applied to “the despised laborer from China” as much as the “envied master of millions,” the Ninth Circuit endorsed an interpretation of the Amendment as treating all persons alike, regardless of their social and economic power. This reasoning bolstered a “formal equality” interpretation of the Fourteenth Amendment, in contrast to claims that the Amendment embodied a commitment to “substantive equality” or anti-subordination--part of a trend towards limiting the Amendment's ability to address long-standing inequalities that continues today.

This is not a case of manipulation by corporate lawyers of disempowered minority litigants. Chinese litigants were willing partners in the strategy to join forces with corporations to expand the Fourteenth Amendment. As this Article reveals, the economic and social connections between industrial corporate magnates and the elite Chinese mercantile and political community were long-standing. Both relied financially on the continued immigration of Chinese laborers, and both had long been represented by the same corporate lawyers. They were also both the target of discriminatory regulations that aimed to simultaneously curb corporate power and stem Chinese immigration. The Fourteenth Amendment provided a valuable tool for corporate lawyers to advocate on behalf of both sets of clients. By eliding the difference between Chinese immigrants and shareholders in these interrelated lines of cases, corporate lawyers cemented an interpretation of equal protection that culminated in the success of the twin cases of Santa Clara and Yick Wo.

For years, scholars have pondered Chief Justice Morrison Waite's famously blithe comment at the outset of oral argument in Santa Clara that the Justices did not wish to hear argument on whether the Fourteenth Amendment applied to corporations, as they were “all of [the] opinion that it does.” Gregory Mark has pointed out that Waite expressly avoided addressing the constitutional question and argued that his statement indicated that the Court merely intended to accept the argument that the corporate property in this case was protected as property of the shareholders. Elizabeth Pollman has also explained Waite's statement as concerned with protecting the shareholders' property interests. Howard Graham, dismissing the claim as “dictum,” went so far as to contend that “the recording of this statement was a fluke--the Court reporter's after-thought!” Adam Winkler has likewise claimed that Waite never intended his quote to become part of the opinion, but that it was intentionally misrepresented in the case report by a perfidious court reporter. J. Willard Hurst even posited that, given late nineteenth-century law's general embrace of economic activity, extending the Fourteenth Amendment to corporations “provoked no significant contemporary controversy.”

This Article offers a novel interpretation of this puzzle. By reading Santa Clara in light of Yick Wo and the preceding line of corporate and Chinese Fourteenth Amendment cases, this Article illuminates the context of equal protection jurisprudence surrounding Waite's enigmatic statement-- specifically, the interplay between corporate personhood and race. As this Article reveals, the definition of equal protection that the Court adopted in Yick Wo had been developed in Ninth Circuit corporate and Chinese Fourteenth Amendment cases throughout the preceding decade and was central to the arguments of counsel in both Yick Wo and Santa Clara. By the time the Waite Court heard Santa Clara, the link between racial minorities and corporate shareholders had become well established in equal protection jurisprudence. Although the Court announced its expanded interpretation of equal protection in Yick Wo rather than Santa Clara, its reasoning had long been applied equally to corporate litigants. This Article suggests that one reason why the Court declined to hear arguments on whether the Fourteenth Amendment protected corporations was because the combined precedent of Chinese and corporate cases had already established that it did.

The success of corporations at claiming constitutional rights has produced a forked legacy. Critics of Citizens United and Hobby Lobby have contended that corporate personhood has been used to trump the rights of individuals and to subvert the democratic process. In contrast, supporters of the decisions have argued that corporations are collections of shareholders who do not lose their fundamental rights simply because they do business as a corporation. Yet even those who oppose corporate constitutional personhood must acknowledge the discomfiting reality that corporate rights litigation has been, and continues to be, an important means of expanding rights protections for natural persons. Today, corporations play an important role in protecting civil rights in other contexts, such as by bringing claims for racial discrimination on behalf of their members under the 1866 Civil Rights Act. This does not mean we should rehabilitate constitutional-rights-bearing corporate persons; but we must admit that a blanket condemnation of corporate personhood ignores the important historical legacy of corporate rights litigation and the continued interconnection--even interdependency--of corporations and racial minorities.

The Article proceeds in three Parts. Part I addresses the common law vision of the corporation as both an aggregate of individuals and a “child of the state” with rights and duties different from those of natural persons and traces the continued viability of this vision throughout the period in which Santa Clara was decided. Part II concerns corporate challenges to this traditional view in Fourteenth Amendment litigation, examining the strategy of corporate lawyers' and Ninth Circuit judges' reliance on the aggregate theory of corporate personhood to analogize Chinese immigrants to corporate shareholders in order to support a broad reading of the Equal Protection Clause. Part III examines the background of Santa Clara and reveals how the meaning of equal protection established by the Chinese and corporate Fourteenth Amendment cases informed the Court's ultimate rulings in Santa Clara and Yick Wo, laying the groundwork for modern equal protection doctrine today.

[. . .]

As this Article has shown, corporate personhood and race have been deeply intertwined since the inception of the Fourteenth Amendment. By drawing analogies between African Americans, Chinese immigrants, and corporate shareholders, corporate lawyers and federal judges were able to establish a broad interpretation of the Fourteenth Amendment's Equal Protection Clause as defending all persons singled out for differential treatment, not just the formerly enslaved persons and their descendants that the Amendment was originally intended to protect. This expansive interpretation of the Equal Protection Clause laid the groundwork for the civil rights claims of other groups experiencing discrimination, including women and LGBTQ persons, going into the twenty-first century.

This is not to argue that corporate litigation was a “but-for” cause of contemporary equal protection jurisprudence; the Supreme Court certainly could have arrived at the modern understanding of equal protection via other paths. What this Article does show is that corporate Fourteenth Amendment litigation, in combination with litigation involving Chinese immigrants, is the path that the development of the doctrine did take, with specific ramifications. Corporate litigation created a template and a structure with both benefits and limits on which future civil rights claimants could draw to expand the Equal Protection Clause to other disadvantaged groups as well. The assumption that corporations are entitled to equal treatment has also spread to other areas of law; in Citizens United, the Court rejected the argument “that political speech of corporations ... should be treated differently under the First Amendment simply because such associations are not 'natural persons.”’

This history reveals a complicated legacy that presents two possible responses. The first is a pragmatic approach to contemporary corporate constitutional litigation that recognizes the seminal role corporations have played and continue to play in advancing doctrines that also protect the civil rights of minority groups. Litigation over the racial identity of corporations in claims under Section 1981 of the 1866 Civil Rights Act, which prohibits racial discrimination in contracting, provides an important example The second approach is to rethink the ironies of the Fourteenth Amendment in light of how early corporate litigation both opened and foreclosed possibilities for disadvantaged groups under the Equal Protection Clause. This might prompt us to reassess doctrines that created strong constitutional rights for corporations but also limited the ability of “discrete and insular minorities” to achieve substantively equal rights.

Regardless, contemporary discussions of corporate constitutional personhood are not complete without understanding the historical importance of constitutional litigation by corporations to both expanding and limiting modern civil rights claims, as well as the role of race in the creation of corporate constitutional rights. Perhaps it is time to rethink modern Fourteenth Amendment doctrine and the practicality as well as the perils of corporate constitutional personhood.

Postdoctoral Teaching Fellow, University of Chicago. Ph.D, University of Chicago; J.D., Harvard Law School.

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