August 31, 2026

William L. Kovacs

One of the least understood controversies in constitutional law is how corporations were transformed from artificial beings of state law into constitutional actors possessing rights the states cannot withdraw. Over time, this shift to personhood gave corporations greater practical political influence than individual citizens because the Constitution now protects the political expenditures of artificial beings that can accumulate capital indefinitely from thousands or even millions of people and act in perpetuity.

This transition occurred over 200 years without any court or legislative body explaining the legal foundation for the transformation that culminated in Citizens United v. Federal Election Commission (“FEC”) and, more recently, National Republican Senatorial Committee v. FEC.

Part I — Can Artificial Entities Become Constitutional Persons?

Can an artificial entity created by state law acquire constitutional rights that the state itself can no longer limit?

That question lies at the heart of one of the most consequential developments in American constitutional law. For centuries, corporations have possessed the legal rights necessary to conduct business, including the ability to own property, enter into contracts, borrow money, and sue or be sued. Over time, however, the Supreme Court transformed corporations from artificial entities possessing limited legal rights into constitutional actors entitled to many protections originally associated with natural persons.

The corporate personhood transformation culminated politically in Citizens United, which prohibited the government from limiting independent political expenditures based on the speaker’s corporate identity. More recently, in National Republican Senatorial Committee v. FEC, the Court invalidated statutory limits on political parties’ expenditures coordinated with their candidates, continuing the judicial expansion of political spending protected by the First Amendment. The latter case concerns political parties which are non-profit corporations, but, more importantly, it illustrates how far the Court’s money-as-speech doctrine has traveled: restrictions on spending are treated as restrictions on political expression.

The Constitution, however, never mentions corporations. It contains no provision conferring constitutional personhood upon them. Congress, as part of its rules of statutory construction, has defined the word “person” to include corporations for purposes of federal legislation, but a rule of construction does not amend the Constitution or determine who possesses constitutional rights.

How, then, did an artificial entity created by state law become a constitutional participant in American self-government?

Legal Rights Are Not Political Rights

Every corporation requires certain legal capacities to exist. It must be able to acquire property, make contracts, employ workers, borrow money, issue debt, and appear in court. These capacities are incidents of the corporate form. Without them, a corporation could not conduct business.

That limited form of legal personhood is practical and understandable. The law treats the corporation as an entity separate from its shareholders so that it may transact business continuously, hold assets, incur liabilities, and survive changes in ownership.

But legal personhood is not the same as constitutional personhood, which has a role in governing the nation through elections.

The ability to sign a lease does not necessarily establish a right to influence an election. The capacity to sue does not answer whether a corporation possesses political speech rights equal to those of a citizen. Rights necessary to conduct commerce are fundamentally different from rights intended to preserve republican self-government.

Chief Justice John Marshall recognized the artificial nature of corporations in Trustees of Dartmouth College v. Woodward in 1819. He described a corporation as an artificial being, invisible, intangible, and existing only in contemplation of law. Its properties were those conferred by its charter, either expressly or as incidental to its existence. The decision protected Dartmouth’s charter as a contract, but it did not declare that corporations were natural persons or that they possessed the full range of constitutional liberties belonging to citizens.

Half a century later, the Court reiterated the distinction in Paul v. Virginia. It held that corporations were not citizens for purposes of the Constitution’s Privileges and Immunities Clause. Corporations, the Court explained, were “creatures of local law” that did not possess an absolute right to recognition in other states.

The principle seemed straightforward: states created corporations and defined the powers those corporations could exercise. Even Justice Antonin Scalia acknowledged in his Citizens United concurrence that, in the founding era, corporations could pursue only the objectives specified in their charters.

The question is not whether corporations should possess legal protections. They must. The question is how protections necessary for an artificial business entity gradually became constitutional rights to participate in the political governance of the citizens who created both the state and the corporations.

Part II — Santa Clara: The Decision That Never Explained Itself

What Santa Clara Decided—and What It Did Not

The constitutional transformation of corporations from artificial beings to constitutionally protected political actors is often traced to the Supreme Court’s 1886 decision in Santa Clara County v. Southern Pacific Railroad Company. The litigation involved California’s taxation of railroad property. Southern Pacific argued, among other claims, that the state’s tax treatment violated the Equal Protection Clause of the Fourteenth Amendment.

The published syllabus preceding the opinion declared:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment.

But that proposition was not analyzed in the Court’s written opinion. Before oral argument, Chief Justice Morrison Waite announced that the justices did not wish to hear argument on whether the Equal Protection Clause applied to corporations because they were all of the opinion that it did. The Court then resolved the dispute on narrower tax-assessment grounds.

Thus, it would be inaccurate to say that the reporter alone invented corporate constitutional rights. The Chief Justice had expressly stated the Court’s collective view. It is equally inaccurate, however, to describe Santa Clara as a reasoned constitutional decision establishing why the word “person” in the Fourteenth Amendment included corporations.

The Court offered no textual analysis, no examination of the Amendment’s history, no consideration of the differences between natural and artificial persons, and no limiting principle explaining which constitutional rights corporations could claim. While the constitutional proposition was stated in the syllabus, the court did not address the issue in its written opinion or even discuss it at oral argument.

That distinction matters.

A headnote or syllabus assists readers but is not itself the Court’s opinion. Yet the syllabus gave the unexplained announcement a prominence and apparent authority that the actual reasoning of the case did not supply. Santa Clara became an important waypoint in a doctrinal development whose constitutional foundation was assumed rather than demonstrated.

The Congressional Research Service’s Constitution Annotated confirms that corporations had invoked Fourteenth Amendment protections in earlier railroad cases and that, in Santa Clara, Chief Justice Waite simply announced that the Court considered the question settled. It also notes that Justices Hugo Black and William O. Douglas later disputed the proposition that corporations are persons for equal-protection purposes.

The problem, therefore, is larger than a single court reporter or a single disputed headnote. Corporate constitutional personhood developed through judicial acceptance, repetition, and institutional acquiescence.

Constitutional Doctrine Through Acquiescence

There was no constitutional amendment declaring corporations to be persons. There was no federal law capable of amending the Fourteenth Amendment’s meaning. Nor was there one landmark opinion carefully identifying which constitutional rights logically belonged to corporations and which were inseparable from human existence and citizenship.

Instead, corporate rights were accumulated incrementally by assumption and without formal legal support.

Courts permitted corporations to invoke due process and equal protection when the government threatened their property. They recognized protections against unreasonable searches in some circumstances. They protected commercial and noncommercial expression. Eventually, the Court concluded that corporate political expenditures were protected speech and that the government could not suppress that speech because the speaker was a corporation.

Each step could be presented as an application of an existing principle. Together, however, the steps produced a profound constitutional transformation. Once the Supreme Court recognized the entity created by state law as having First Amendment rights because of its personhood, it could invoke those rights, even against the state that created it.

The creator gradually lost control of its creation.

Like Victor Frankenstein’s creation, the doctrine eventually escaped the control of those who first animated it. What began as a legal construct that allowed property to be held and business to continue beyond the lives of individual owners evolved into a constitutional actor with political power far beyond what early corporate charters contemplated.

The analogy does not depend upon accusing any particular official or the judiciary of misconduct. It merely describes the result of institutional acquiescence by the Court and Congress. A doctrine assembled one piece at a time ultimately acquired a constitutional life and force of its own.

Part III — Citizens United and the Rise of Corporate Political Power

From Artificial Entity to Political Actor                                                                                                                

The decisive step in the evolution of corporate political power came with Citizens United.

The case did not hold that corporations could make unlimited direct contributions to candidates. Federal law still restricts direct corporate contributions. Rather, the Court held that corporations and unions could not be prohibited from making independent expenditures advocating for or against candidates.

The Court reasoned that political speech is indispensable to democracy and that the First Amendment generally does not permit the government to restrict speech based on the speaker’s identity. It treated a corporate restriction as an impermissible suppression of political expression.

That reasoning largely eliminated the constitutional significance of the differences between a natural citizen and an artificial corporation.

A citizen has a finite lifespan, limited resources, and one vote. A corporation may exist perpetually, accumulate enormous amounts of capital, operate across national boundaries, and aggregate the economic resources of thousands or millions of shareholders, customers, and employees. Its political position is ordinarily selected by directors and executives, not by the vote of every person whose money contributes to the corporation’s wealth.

Corporations also benefit from state-created attributes unavailable to individuals: perpetual succession, limited liability of their owners, centralized management, transferable ownership, and the ability to amass resources over generations.

Those advantages may be economically useful. But when combined with constitutionally protected political expenditures, they produce political power that no ordinary citizen can match.

The issue is therefore not that corporations possess every constitutional right enjoyed by human beings. They do not vote, hold public office, or exercise rights that, by their nature, belong only to natural persons. The narrower and stronger objection is that corporations may exercise greater practical power in the political marketplace because their speech is backed by concentrated and potentially unlimited capital.

The Court speaks of equal freedom to express political views. The result is a profoundly unequal capacity to make those views heard.

Corporate speech becomes political power.

The constitutional premise is that political spending facilitates speech. Television advertisements, digital campaigns, consultants, polling, mailings, and mass communications all require money. Limiting expenditures therefore limits the amount and reach of political advocacy.

But recognizing that communication costs money does not resolve the central question: Whose constitutional speech is being protected? Whose constitutional speech is being diminished by the use of unlimited assets that support only what benefits the corporation, not the nation?

A corporation does not possess beliefs, conscience, civic duties, mortality, or an independent moral existence. Its officers and shareholders do, but the corporation is legally distinct from them. Indeed, the separation between the corporation and its owners is one of the principal benefits of incorporation.

The law cannot logically insist that the corporation is separate from its shareholders when limiting liability, but merely an association of citizens when expanding political rights.

Nor does the fact that Congress defines “person” to include corporations answer the constitutional question. The Dictionary Act provides that, unless context indicates otherwise, the words “person” and “whoever” in federal statutes include corporations, companies, associations, firms, partnerships, and individuals. That allows legislation to apply sensibly to organizations. It does not establish that every constitutional use of “person” includes every artificial entity, or that political rights attach regardless of the nature and purpose of the right involved.

The First Amendment protects “the freedom of speech,” not merely the rights of persons. That textual distinction gives the Court a serious argument for protecting expression regardless of its institutional source. Newspapers, nonprofit organizations, churches, advocacy groups, and incorporated associations all contribute to public debate.

But that argument should begin—not end—the constitutional inquiry. The Court must still distinguish protection for a press organization, membership association, or ideological nonprofit from the use of general corporate treasury funds accumulated through commercial activity. It must also confront the question of whether the state-created advantages of incorporation may be subject to state-defined conditions, particularly where corporate spending threatens to overwhelm rather than enrich citizen debate.

Part IV: Using AI Statistics to Prove Corporate Money Corrupts Politics

After 140 years of Supreme Court holdings that corporations have constitutional rights, there does not appear to be a simple remedy for balancing the use of massive corporate resources to control the political system while still protecting citizens’ rights in a democracy.

The Supreme Court does not even believe that independent expenditures lead to corruption or the appearance of corruption; therefore, it permits unlimited money in politics. Under the Court’s decisions, the only permissible rationale for limiting campaign spending is to prevent quid pro quo corruption, which refers to outright bribery, an action already prohibited by statute.

Traditional mechanisms for overturning Citizens United are unlikely to prevail. A new approach is required. Artificial Intelligence (AI) may be able to generate the statistical evidence required to establish that massive amounts of corporate money in politics corrupts Congress and its policymaking process.

Why do the traditional approaches to taking money out of politics fail?

A constitutional amendment could expressly provide that the constitutional rights of natural persons do not automatically extend to corporations. This sledgehammer approach would likely interfere with the legal protections corporations need to operate. Such an amendment would need careful drafting to avoid endangering freedom of the press, religious institutions, nonprofit associations, and the property and due process protections on which all organizations depend.

The Supreme Court could reconsider Citizens United or recognize a broader governmental interest in protecting the integrity of representative government from concentrated economic power. That appears unlikely under the Court’s present doctrine, which has increasingly limited campaign-finance regulation to measures directed at quid pro quo corruption or its appearance.

States might seek to place political-spending limitations or shareholder-approval requirements in corporate law. Yet direct prohibitions would face serious First Amendment challenges under existing precedent. More defensible state reforms would require meaningful shareholder approval, disclosure of political expenditures, or corporate governance procedures that ensure executives do not use other people’s invested capital for undisclosed political purposes.

Congress could also require prompt and comprehensive disclosure of political spending. Disclosure does not answer whether corporations should possess the constitutional right to contribute unlimited amounts of money to influence elections. Still, it at least allows citizens to identify the economic interests attempting to influence their votes and their government.

AI, with its power to quickly analyze massive amounts of data, may be able to establish the direct link between corporate contributions and congressional policies, thereby providing evidence of institutional corruption.

If large political expenditures consistently produce subsidies, tax preferences, favorable regulation, government contracts, or lax enforcement for the big corporate spenders, the distinction between independent political advocacy and the purchase of governmental policies becomes increasingly difficult to sustain. Unlike quid pro quo bribery involving individual members of Congress, the AI statistical approach seeks to analyze how massive amounts of money corrupt the entire congressional policymaking process. These findings may be sufficient for the Supreme Court to protect democracy over corporate rights.

Modern data analysis using AI seeks to find correlations between political spending, official conduct, and government benefits on a scale previously impossible to calculate. A study by Professors Martin Gilens (UCLA) and Benjamin I. Page (Northwestern University), published by Cambridge University, is the first roadmap for building a statistical foundation for determining the corporate benefits of massive political contributions.

In “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” the two authors reviewed 1,779 unique data sets to determine who influences policy in the U.S. Their key finding is that the economic elites and organized groups representing business interests have substantially more impact on U.S. policy compared to average citizens, who the study finds have near-zero influence. Moreover, because of the strong status quo built into the U.S. Political system, even when fairly large majorities of Americans favor policy change, they generally do not get it, unless the elites also seek the same changes.

The term “data set” refers to the author’s empirical effort to compile data generated over many years to estimate the influence on public policy of “affluent citizens, poor citizens, and those in the middle of the income distribution.” The surveys asked participants whether they favored or opposed specific policy options based on the policy’s specificity, its relevance to the federal government, and participants’ income levels. It also included research by other colleagues on interest groups active on those issues and the magnitude of resources deployed to influence the problem.

AI gives citizens the computing power to uncover evidence that political contributions skew policymaking in corporations’ favor. Simply, it could statistically link how political contributions buy beneficial corporate policy and benefits. The focus is not on money-to-member corruption, but on something more significant: money-to-Congress to purchase policy. The statistics may show that massive amounts of money are corrupting the entire institution of Congress.

The Constitution begins with “We the People,” not “We the Corporations.” If artificial entities possess constitutional political rights because courts gradually accepted them rather than because the constitutional text clearly grants them, the nation must ask what limiting principle remains.

Can entities created by state government acquire political rights beyond the federal government’s power to control? Can accumulated corporate capital constitutionally overwhelm the political voices of the citizens who must live with the results of the corruption? And at what point does protecting corporate speech diminish rather than preserve republican self-government?

Until those questions are answered, corporate personhood will remain what it is today: a powerful constitutional doctrine still searching for its constitutional foundation.Keyword: Corporate Personhood

William L. Kovacs served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. His books include: Congress: An Irrelevant Institution or Guardian of the Republic, Reform the Kakistocracy, the recipient of the 2021 Independent Press Award for Social/Political Change, and  Devolution of Power. He can be contacted at [email protected]