The Person That Emerged: How Corporate Rights Were Assembled, One Case at a Time
No legislature ever voted to make corporations persons, and no single Supreme Court decision established it. Corporate constitutional rights were assembled piecemeal across two centuries of litigation, and the sequence has a feature worth noticing: the first corporate rights case ever heard by the Supreme Court was brought by a bank, in 1809, and the case that established corporate political speech under the First Amendment was brought by a bank, in 1978. In between sits the oddest episode in American constitutional law, in which the proposition that corporations are persons under the Fourteenth Amendment entered the United States Reports not through a holding but through a headnote — a summary written by the Court's reporter of decisions, recording a remark the Chief Justice made before oral argument on a question the Court then declined to decide. Later courts cited the headnote. This essay traces the accumulation from Bank of the United States v. Deveaux through Dartmouth College, Santa Clara, Hale v. Henkel, Bellotti, Citizens United and Hobby Lobby, identifies what each case actually held as distinct from what it is remembered for, and argues that the piecemeal character of the process is the point rather than an incidental detail — because an entity that acquires capacities one at a time, each justified on narrow grounds, never faces the question of what it has become.