New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Rutgers Law Review, Vol. 64, No. 3, 2012

Abstract

Professor Neuborne argues that we should view corporations as collections of individuals joined together to advance a common goal. In many constitutional settings – such as equal protection, due process and 4th amendment privacy – where the interests of the individuals who constitute the corporate enterprise would be uniformly advanced by the recognition of an enforcement agent capable of vigorously enforcing the rights of all, it makes sense to indulge in the fiction that a corporation is a freestanding entity with constitutional rights of its own. Such a fiction enables corporate management to function as an efficient enforcement agent for the collective.

Where, however, as in campaign spending or self-incrimination there will almost certainly be conflicts of interest between and among the corporate participants, it distorts the power relationships within the corporate enterprise to vest corporate management with the power to use general treasury funds to advance an electoral candidate who is opposed by many shareholders. In such a conflict of interest setting, corporate management should not be vested with power to enforce a collective right. Rather, the participants themselves must assert it. That is how the Supreme Court has treated corporate 5th Amendment self- incrimination rights for a century. It is also how electoral speech rights should be treated. Accordingly, Citizens United was wrongly decided.

Date of Authorship for this Version

5-2013

Keywords

Corporations, U.S. Constitution, campaign financing, Equal Protection, Bill of Rights, 4th Amendment, Supreme Court, judicial review, Citizens United

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