Corporate Person

CORPORATE PERSONHOOD AND THE HISTORY OF THE
RIGHTS OF CORPORATIONS: A REFLECTION ON ADAM

WINKLER’S BOOK WE THE CORPORATIONS: HOW
AMERICAN BUSINESSES WON THEIR CIVIL RIGHTS
JACK M. BEERMANN
Adam Winkler’s book We the Corporations: How American Businesses Won

Their Civil Rights is an impressive work on several different levels. Because so
much of the development of American constitutional law over the centuries has
involved businesses, the book is a nearly comprehensive legal history of federal
constitutional law. It certainly would be worthwhile reading for anyone
interested in the constitutionality of economic regulation in the United States,
spanning the controversies over the first and second Banks of the United States,
through the Lochner era and present-day clashes over corporate campaign
spending, and religiously-based exemptions to generally applicable laws such as
the requirement that employer-offered health insurance policies cover birth
control.
What I found most impressive about the book is how Winkler humanizes the
evolution of the law by connecting legal developments to the personal stories of
the lawyers and judges involved. Winkler’s analysis is about as far from
formalism as possible, showing how judges’ philosophies, lawyers’ ideologies
and clients’ interests contributed to important, even foundational, developments
in American constitutional law. Just as today we can discuss important legal
developments in light of the competing philosophies of Supreme Court Justices
Antonin Scalia and Stephen Breyer, Winkler allows us to appreciate
developments in early American business law through the eyes of important
historical figures including John Winthrop, Daniel Webster, John Marshall, and
Peter Deveaux, the Georgia tax collector who forcibly seized assets belonging
to the first Bank of the United States to satisfy the state’s tax bill.
One of the most interesting personalities discussed by Winkler is Roscoe
Conkling, a highly successful nineteenth century lawyer and framer of the
Fourteenth Amendment. Conkling made an originalist argument in favor of
extending due process rights to corporations; that his journals of the framing of
the Fourteenth Amendment reveal that he and his fellow drafters chose the word
“person” instead of “citizen” in the amendment’s due process clause to bring
corporations under the clause’s umbrella of protection. This turns out to have
been a blatant fabrication—Conkling’s journals showed no such thing. His co-
counsels discovered this falsehood, and in later cases involving the same client,
 Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law.
32
2018] CORPORATE PERSONHOOD 33
Conkling was no longer on the legal team and his “fake news” originalist
argument was not repeated.
This is not to say that Winkler agrees with one of the standard criticisms of
the Supreme Court’s (in)famous Citizens United decision, that its recognition of
corporate personhood was radical and unprecedented. In fact, Winkler easily
debunks this view, demonstrating that beginning as long ago as 1809,
corporations have racked up an impressive record of legal victories in the
Supreme Court, beating back “broad public sentiment favoring business
regulation.”1 Many of those victories involved constitutional protections for
corporations that make sense only if corporations enjoy at least some of the
constitutional protections textually granted to “persons,” most prominently the
right enjoyed by “persons” to be free from deprivations of life, liberty, or
property without due process of law. Had corporations not been persons, or at
least recognized as a conduit for the economic activities of those persons owning
shares in them, the Lochner era’s substantive due process protections against
economic regulation would not have extended to regulation of corporations.
I agree wholeheartedly with Winkler’s observation, that contrary to the long
record of success for businesses that he documents, “[f]or most of American
history, the Supreme Court failed to protect the dispossessed and the
marginalized.”2 Because I teach and write in the civil rights area, I found
Winkler’s chapter on “Corporations, Race and Civil Rights” very interesting.
Two of the cases discussed in this chapter illustrate that the consequences of
recognizing separate corporate personhood are indeterminate, sometimes
advancing the cause of minority rights and sometimes possibly hindering that
same cause.
The first case I will discuss disregarded the corporate form and ruled in favor
of protecting the NAACP from the State of Alabama’s efforts to prevent it from
acting against racial injustice in that state.3 During the civil rights movement of
the 1950s and 1960s, Southern state governments viewed the NAACP, a non-
profit New York corporation, as a subversive organization. John Patterson,
Attorney General of Alabama in the 1950s, sued the NAACP for failing to
register as a “foreign corporation.” As part of the lawsuit, Patterson demanded
that the NAACP turn over various corporate records, including a list of its
members. The organization did not want to reveal its membership list to the State
of Alabama, fearing that its members would face legal action, harassment, or
worse at the hand of the State of Alabama and other white supremacists resisting
the NAACP’s demands for racial equality. When the Supreme Court ruled in
favor of the NAACP’s right to keep its membership list secret, it did not hold
that the NAACP itself had the freedom of association that protects membership
1 ADAM WINKLER, WE THE CORPORATIONS: HOW AMERICAN BUSINESSES WON THEIR CIVIL
RIGHTS, at xviii (2018).
2 Id.
3 NAACP v. Ala. ex rel. Patterson, 357 U.S. 449 (1958); see also WINKLER, supra note 1,
at 262-64.
34 BOSTON UNIVERSITY LAW REVIEW ONLINE [Vol. 98:32
organizations from government intervention. Rather, as Winkler describes it, the

Court “pierced the corporate veil” and held that the members’ associational
rights trumped the state’s demand for the group’s membership list.
The second case arose in the Virginia state courts and resulted in the Virginia
Supreme Court recognizing the corporate form and ruling in favor of the
interests of the racial minority.4 The People’s Pleasure Park Company was a
Virginia corporation owned by Joseph Johnson, a black former slave. The
corporation opened an amusement park near Richmond in 1906 to serve blacks
who would have been excluded from the many whites only places of amusement
in the area under Jim Crow. The park’s white neighbors were unhappy about the
presence of blacks in their community, and they sued to shut the park down,
pointing to a restrictive covenant in the title to the land on which the park was
located that prohibited the sale of the land to “‘a person or persons of African
descent’ or any other ‘colored person.’”5 Surprisingly, the Virginia Supreme
Court ruled in favor of the corporation, holding that the corporation itself was a
person separate and apart from its members, and as an artificial entity had no
racial identity. Here, ignoring the corporation’s membership worked in favor of
the rights of the members, while in the Alabama case, the Supreme Court’s
decision to focus on the corporation’s members and ignore the corporation itself
had the same effect.
Through these and additional cases, Winkler analyzes the interaction of racial
justice and the corporate status in American constitutional law. Unfortunately,
issues of racial justice occupy only a small portion of Winkler’s book. In a sense
this is understandable since, as Winkler notes, the Supreme Court has addressed
many more cases involving the status and rights of corporations than cases
involving race discrimination and constitutional rights of individuals. Yet, given
the centrality of race to the history of the United States and its law, I am left with
a sense that there is more to say. Has the Court’s historical focus on corporate
rights crowded out efforts to protect individual rights, including the rights of
racial minorities? What about the involvement of so many corporations in the
perpetuation of the badges and incidents of slavery, such as discriminatory
lending and insurance practices that prevented generations of black Americans
from sharing in the wealth that has been generated by appreciation in the value
of real estate? Do today’s corporations have a moral obligation to right these
wrongs, through reparations or special treatment of disadvantaged persons?
My wish that Winkler had paid more attention to the race problem that
continues to bedevil American society and law is actually a compliment: this
book is so rewarding and enjoyable that I wanted more of the same applied to
my areas of special interest. My bottom line is that anyone who is troubled by
or interested in the controversy over recognizing corporate rights in Citizens
4 People’s Pleasure Park Co., Inc. v. Rohleder, 109 Va. 439, 61 S.E. 794 (1908); see also
WINKLER, supra note 1, at 260-62.

5 WINKLER, supra note 1, at 260.
2018] CORPORATE PERSONHOOD 35
United and other cases would do well to read We the Corporations. I expect it
will be recognized, deservedly, as an important work in American legal history.

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CORPORATE PERSONHOOD AND THE HISTORY OF THE

RIGHTS OF CORPORATIONS: A REFLECTION ON ADAM

Adam Winkler’s book We the Corporations: How American Businesses Won

organizations from government intervention. Rather, as Winkler describes it, the

WINKLER, supra note 1, at 260-62.

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