The legal fiction that bent American history
In 1886, the Supreme Court heard a tax dispute between Southern Pacific Railroad and several California counties. Before oral arguments even began, Chief Justice Morrison Waite made an offhand comment to the assembled lawyers: the Court wouldn’t be addressing whether corporations counted as “persons” under the Fourteenth Amendment, because the justices considered that question already settled.
The Court’s actual decision said nothing about corporate personhood. It dealt narrowly with railroad fences and tax assessments. But J.C. Bancroft Davis, whose job was summarizing cases for legal publication, included Waite’s preliminary comment in his headnote—the brief overview that appears before each decision. This wouldn’t matter except for one detail: Davis had previously served as president of the Newburgh and New York Railway Company. A former railroad executive was inserting into the official record, as established precedent, precisely what railroad corporations had been unsuccessfully litigating for over twenty years. Whether he acted from calculated self-interest or genuinely believed he was recording settled law, the result was the same. A headnote with no legal authority became constitutional doctrine.
This matters because Fourteenth Amendment personhood isn’t abstract philosophy—it’s a grant of concrete power. The amendment was written after the Civil War to ensure states couldn’t deny freed slaves due process or equal protection. Those protections mean government can’t restrict liberty or seize property without compelling justification and fair procedures. Once corporations gained that status, the logic extended inexorably. If corporations were persons for due process purposes, why not for free speech? The First Amendment doesn’t distinguish between types of persons. Corporate personhood became a wedge that eventually split open constitutional protections never intended for artificial entities.
A World the Founders Never Imagined
The strangeness becomes clear when you consider what corporations looked like in 1789. They were rare, created by individual legislative acts for specific public purposes—building a particular bridge, operating a specific canal. State legislatures granted charters that expired after twenty or thirty years, once the project was complete. The idea of perpetual corporate existence would have struck the founders as vaguely monarchical, like creating synthetic aristocrats immune to mortality. And they’d never encountered corporations wielding serious political power. Even the largest colonial-era corporations were modest compared to what emerged during the Gilded Age—Standard Oil, U.S. Steel, the great railroad combinations commanding resources that exceeded many states, employing what amounted to private armies, shaping legislation through sheer financial weight.
The Gilded Age oligarchs understood what they’d gained. Rockefeller, Carnegie, Morgan—they channeled wealth and influence through corporate structures that provided something valuable beyond business advantages: distance. When corporations got caught bribing legislators or crushing competitors through predatory pricing, the owners could claim they were merely shareholders in independent entities. The corporation absorbed the scandal; the oligarchs preserved their reputations.
As corporate personhood became entrenched through decades of case law building on Davis’s headnote, corporations began claiming more expansive rights. By 2003, Nike found itself facing California charges that it had made materially false statements about labor conditions in its overseas factories. Nike’s defense in Nike v. Kasky was remarkable: forcing the company to tell the truth about its labor practices violated its free speech rights. The Supreme Court ultimately sent the case back on procedural grounds, but Nike’s core claim revealed where the logic led. An artificial entity was asserting a constitutional right to lie to the public, attempting to transmute consumer protection into unconstitutional censorship.
The Long Pushback
Throughout the twentieth century, democratic forces pushed back. The Tillman Act of 1907 banned corporate contributions to federal campaigns. The Taft-Hartley Act of 1947 prohibited independent expenditures supporting or opposing candidates. The Federal Election Campaign Act of 1971 created disclosure requirements and spending limits. Each reform reflected a basic intuition: corporations were legal tools created by state law to facilitate commerce, possessing only those rights the public chose to grant them. They shouldn’t wield constitutional protections that let them dominate the democratic process through which citizens governed themselves.
Citizens United v. Federal Election Commission swept away that entire framework in 2010. The Court could have issued a narrow ruling on the specific case before it—a nonprofit’s documentary about Hillary Clinton. Instead, it struck down longstanding prohibitions on corporate independent expenditures, treating corporations as speakers whose voices deserved constitutional protection equivalent to individual citizens. Justice Kennedy dismissed concerns about corruption, claiming that independent expenditures—money spent supporting candidates without direct coordination—don’t corrupt or create corruption’s appearance.
Sixty Percent
The prediction failed spectacularly. In the 2024 election cycle, roughly $15.9 billion was spent on federal campaigns. Just one hundred billionaire families contributed $2.6 billion. Dark money from undisclosed sources reached $1.9 billion. Super PACs, which can accept unlimited corporate and individual contributions, raised $5.1 billion. Together, these channels of concentrated wealth—oligarchs, corporations, and secret donors—represented roughly sixty percent of all federal campaign spending. Candidates became dependent not on voters but on approval from those who could spend unlimited sums either supporting them or destroying them. Legislative agendas shifted accordingly. Financial reform withered because banks could freely support friendly candidates and punish hostile ones. The pattern repeated across policy domains.
The distortion extends beyond particular outcomes. Corporate speech—sophisticated advertising campaigns, think tank white papers, corporate-funded expert commentary—drowns out ordinary citizens who lack comparable resources. A steelworker and ExxonMobil both enjoy First Amendment rights, but when ExxonMobil can spend millions amplifying its message while the steelworker writes letters to the editor, their theoretical equality becomes practical mockery.
What we’re living with is a constitutional principle treating legal fictions as rights-bearing persons, granting artificial entities the same fundamental protections designed for human beings, letting concentrated capital claim democratic privileges while avoiding democratic accountability. The remedy is straightforward: eliminate corporate personhood except for the narrow property rights necessary for business operation. Corporations would retain the ability to own assets, enter contracts, conduct commerce—the functions for which they were invented. They would lose the capacity to claim speech rights, due process protections, and equal protection guarantees designed for human beings. Removing these claimed rights would dramatically simplify business regulation, saving millions of dollars and years currently consumed by constitutional litigation over corporations’ presumed rights.
This isn’t about punishing corporations or abandoning capitalism. It’s about remembering what corporations are: tools—useful tools for organizing economic activity, but tools nonetheless. Tools don’t have rights. They don’t vote, speak, or claim constitutional protection from the people who created them. Letting them do so hasn’t strengthened American democracy. It’s hollowed it out, replacing citizen self-governance with a system where artificial entities that never die, never sleep, have no conscience, and never face human consequences increasingly determine how actual human beings get to live. The final perversity: corporations enjoy the constitutional rights of persons while bearing obligations only to their shareholders. They’ve become super-persons—wielding rights beyond what any citizen possesses while escaping the financial liability that would bankrupt any actual human being.