Ron Carey has posted Rights Without Agency: Corporate Personhood and Democratic Erosion on SSRN. Here is the abstract:
Corporate Personhood is not constitutional doctrine – it is a citation error that metastasized. The Supreme Court never held that corporations are “persons” under the Fourteenth Amendment. That proposition entered constitutional law through a reporter’s headnote in Santa Clara Cnty. v. S. Pac. R.R. Co., (1886), was recycled without analysis in Pembina, and was subsequently treated as settled law through repetition rather than adjudication. This paper exposes how that unexamined error became the foundation for modern corporate constitutional rights.
The consequences are profound. After Buckley, Bellotti, and Citizens United, corporations now exercise expansive political speech rights using resources supplied largely by passive shareholders who lack any meaningful control over corporate political expression. Millions of ordinary investors are compelled to subsidize speech they neither authorize nor endorse, while the Court treats the corporation itself as a unitary speaker. The result is a system of democratic distortion in which rights attach to property while human agency disappears from the analysis.
Reclaiming the Court’s own reasoning in NAACP v. Alabama, this paper articulates a principled distinction between true associations of persons and hierarchical corporate entities. It concludes by proposing a legislative solution – the Defense of Personhood Act – grounded in Congress’ Section 5 enforcement authority, to restore the Fourteenth Amendment’s emancipatory purpose and re-anchor constitutional rights in human beings rather than property created by state charter.
Recommended. I would note, however, that the emergence of doctrines from citation errors is a pervasive phenomenon.