The Catholic University of America





Two CUA Professors Join Yale Law Dean in Panel on Corporations and Constitution 


In the aftermath of the Supreme Court's June 2014 decision in in Burwell v. Hobby Lobby Stores, Inc., the question whether corporations should have First Amendment rights is once again a hotly disputed question.  In Hobby Lobby, as in its 2010 decision in Citizens United v. Federal Election Commission, the Supreme Court ruled in favor of corporations that asserted First Amendment rights.  Hobby Lobby, however, rested on statutory grounds, and both decisions reflected deep divisions among the justices.  In the public policy arena, debate continues over whether corporations are “people” for the purpose of exercising constitutional rights.  

Catholic University law school Professors Mark Rienzi and Sarah Duggin, together with Yale Law School Dean Robert Post, carried the discussion forward in an October 16 panel sponsored by the Heritage Foundation. The discussion was titled, “Constitution, Inc.: What Rights Do Corporations Have?”
The Heritage Foundation framed the issue this way:
“Today, the question of the legal and moral status of corporations is more important than ever. Recent Supreme Court decisions in cases like Hobby Lobby and Citizens United have served as lightning rods for public debate. What is the legal status of the corporation in American law? This unsettled theoretical question is of immense importance going forward in so many areas of American law.”  
Speaking first, Dean Post said that for First Amendment purposes, whether an entity is incorporated or not is irrelevant. In Post’s view, what matters is not the legal form but whether the entity is an expressive association exercising free speech as a stand-in for its members. 
"The corporate form neither adds nor contracts First Amendment rights," said Post, who suggested that we protect the speech rights of entities to safeguard First Amendment values such as making more information available to listeners. 
Professor Rienzi disagreed, arguing that whether the entity is a corporation or something else is the wrong question. The right question is “Is it speech?” 
Rienzi, who helped litigate the Hobby Lobby case as senior counsel for the Becket Fund for Religious Liberty, noted that many corporations act as “persons” by adopting policies based upon ethical, social, and environmental concerns, just as an individual would.
“Any time you say that a corporation has no rights, what you’re really saying is the government has the ability to force people in this circumstance where they couldn’t someplace else,” Rienzi said.
“Corporations do just about everything in our society. If you were to actually say that the corporate form acts as some big Constitutional game-changer, you’re ceding a whole bunch of power to the government,” he added.  Rienzi pointed out that only two of the nine Justices on the Supreme Court accepted the government's argument that profit-making businesses could not exercise religion.

But his colleague Professor Sarah Duggin, former general counsel of Amtrak who is also an ordained Episcopal priest, noted that the Supreme Court has never held that all constitutional rights apply equally to corporations or other artificial entities. 
Corporations have equal protection and due process protections, but they do not enjoy other rights such as the privileges and immunities of citizenship or Fifth Amendment protections against self-incrimination, said Duggin.  Nor, at least so far, has the Court held that corporations have the Second Amendment right to bear arms.  Duggin argued that it makes little sense to extend all of the same rights afforded to an individual to an entity that is simply an artificial person and a legal fiction.  
Duggin suggested that we need to be cautious about extending constitutional rights to business entities.  She noted that nearly sixty-two percent of the world’s top 175 economies are corporations.  All of the panelists acknowledged that corporations wield enormous power in the lives of every American. All the more reason, said Duggin, for the law not to confuse the status of an artificially created entity with that of real human beings.  
“Corporations don’t have souls, they don’t have hope of eternal life, they don’t worship, they don’t pray, they don’t receive sacraments, they don’t marry, and they don’t give birth. To me, it’s wrong to attribute faith to a legal fiction,” she said.
Among legal experts, just as among the rest of society, it appears that the debate over the rights and legal status of the corporation will not come to rest anytime soon.