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The Charter

3 essays in the Forum tagged "The Charter".

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The Charter

The Protection That Dissolved: United States v. Miller and the Constitutional Precondition for Programmable Money

On April 21, 1976, the Supreme Court held seven to two that a bank depositor has no Fourth Amendment interest in his own financial records. The reasoning was that checks, deposit slips and account statements are the business records of the bank rather than the depositor's private papers, and that information voluntarily conveyed to a third party loses its constitutional protection even when revealed on the assumption it would be used only for a limited purpose. Justice Brennan dissented on the ground that banking is functionally obligatory in modern commerce and that a conveyance one cannot avoid is not voluntary. He lost. United States v. Miller became the origin of what is now called the third-party doctrine, extended to telephone records three years later and standing as the constitutional foundation for the government's access to essentially all intermediated transactional information. This essay traces the decision from the Bank Secrecy Act that produced the records through California Bankers v. Shultz, Miller itself, Smith v. Maryland, and the partial qualification in Carpenter v. United States — and argues that Miller is the unexamined precondition for the architecture this catalog has documented across its work on programmable money. If financial records held by intermediaries carry no constitutional protection, and a cashless system makes every transaction intermediated, then no financial act is constitutionally private, and nothing had to be repealed to reach that result.

United States v. Millerthird-party doctrineFourth AmendmentBank Secrecy ActBrennanCarpenterCBDCfinancial privacyThe Charter
The Charter

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.

corporate personhoodDeveauxDartmouth CollegeSanta ClaraBellottiCitizens UnitedMarshallconstitutional lawThe Charter
The Charter

The Charter That Expired: What a Corporation Used to Be

A corporation in the early American republic was a grant of privilege, not a form of organization. It required a special act of a state legislature. It was issued for a stated purpose and could do nothing else. It carried a maximum capitalization, often one hundred thousand dollars. And it expired — twenty years, thirty, fifty — after which the enterprise dissolved unless the legislature chose to renew it. Justice Louis Brandeis documented this history from the bench in 1933, observing that permission to incorporate for any lawful purpose was not common until 1875, that until then the duration of corporate franchises was generally limited, and that under those rules the holding company was impossible. This essay traces how each of those limits was removed, not by federal action or by any single decision, but by competition among states for chartering revenue — New Jersey permitting holding companies in 1888, eliminating time limits by 1896, and Delaware copying the statute nearly verbatim in 1899. Brandeis recorded that all seven of the largest trusts existing in 1904 were organized under New Jersey law. The framework's argument is that the common complaint against capitalism is largely a complaint about the institution that emerged from this process, that the two are not the same thing, and that Menger's account of capital as higher-order goods explains why the distinction matters rather than being a matter of labels.

corporate charterBrandeisgeneral incorporationNew JerseyDelawareMengercapitalcorporatismKolkoThe Charter