Incorporating Corporate Rights

Abstract

Why exactly must the states respect federal Bill of Rights protections that apply to corporations? In Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court held that corporations enjoy the First Amendment’s freedom of speech. Then, in American Tradition Partnership v. Bullock, 132 S. Ct. 2490 (2012), the Court incorporated that holding to the states. Oddly, though, the per curiam opinion in the latter case did not mention the constitutional doctrine of incorporation. It did not mention due process. It did not even mention the Fourteenth Amendment.This omission is indeed surprising, as the Bill of Rights does not apply to the states but for their incorporation through the Fourteenth Amendment’s Due Process Clause. Now of course, the Court long ago incorporated the First Amendment to the states. But that incorporation was to protect “liberty,” and the Court has also long held that corporations, as artificial entities, do not enjoy the “liberty” that the Fourteenth Amendment protects. So again, why must the states respect federal Bill of Rights protections that apply to corporations? As for the First Amendment, the Court addressed this exact question in First National Bank of Boston v. Bellotti, 437 U.S. 765 (1978). The analysis in Bellotti, however, suggests that the First Amendment is somewhat sui generis. That uniqueness naturally raises the question, must the states respect other Bill of Rights protections that corporations now enjoy — or might soon enjoy? Must states provide jury trials for corporate criminal-fines cases? What about if corporations have Second Amendment rights?This Article aims to provide an answer. It draws on two sources, one more recent, and the other from 1868. The first is organizational and associational standing, which scholars have recently proffered as providing coherence to the Court’s corporate-rights jurisprudence. But with respect to the unique problem of incorporating corporate rights, group-entity standing by itself fails to fully solve the incorporation problem. We need something more.That something, this Article argues, is the Fourteenth Amendment’s Property Clause. A property-based account of the incorporation of corporate rights explains why states must respect certain corporate rights. It explains why they do not have to respect others. And it avoids overturning long-standing precedent. After explaining the property-based approach, the Article concludes by explaining which federal Bill of Rights protections corporations should enjoy at the state level.