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Hastings Law Journal

Authors

Carl J. Mayer

Abstract

As Americans celebrate the bicentennial of the Bill of Rights, corporations increasingly are invoking Bill of Rights protections to thwart a broad array of government regulation. This Article questions the legitimacy of the corporate claim to Bill of Rights safeguards. It does so by examining the theory and history of corporate assertions of constitutional protections. The Article suggests that the Bill of Rights has become a shield against modern federal regulation in a manner similar to the way the 14th amendment was a shield against state regulation during the early twentieth century-the era of substantive due process. Ironically, just as the Supreme Court has awarded a wide variety of Bill of Rights safeguards to corporations, its reasons for so doing have become murky. While the Court once relied on a body of theory that suggested that corporations are "persons" for Bill of Rights purposes, it now rests on several disparate, often contradictory, and sometimes unstated, doctrines. The Article seeks to explain the demise of corporate "personhood" theory. The Article concludes by advocating a constitutional amendment that would create a presumption favoring the individual over the corporation. Such an amendment would limit the constitutional rights of corporations to statutory protections conferred by legislatures and referenda. Only in this way will the constitutional status of corporations be clarified.

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