Adam Winkler ’93, a professor of constitutional law at UCLA School of Law, joined Slate legal commentator Dahlia Lithwick for a discussion of his new book, We the Corporations: How American Businesses Won Their Civil Rights, at a Brennan Center for Justice event on February 27. In what Lithwick called “a counterintuitive and deep book,” Winkler argues that corporations and corporate law have deeply influenced many of the rights and institutions that are foundations of American government.

Adam Winkler ’93 (left) and Dahlia LithwickDuring his conversation with Lithwick, Winkler said that the US Constitution itself has roots in a corporate model. Some of the 13 American colonies were originally organized as businesses, he said: “Eventually, as those colonial corporations became governments in the colonial era, that idea of a charter—a written charter that would limit what officeholders do and guarantee the rights of no longer investors but now citizens—would really shape the framers and how they thought about the Constitution.”

Much of the discussion focused on “corporate personhood”—a controversial notion in some quarters, especially since the US Supreme Court upheld the First Amendment rights of corporations in Hobby Lobby and Citizens United. Winkler noted that corporate personhood is a well-established legal doctrine that simply means a corporation is its own legal entity, separate from the stockholders who own it and the managers who run it.

Adam Winkler ’93He asserted, however, that the Supreme Court has increasingly lost sight of that separation, instead treating the corporation as a “pass-through” that can claim the rights of its members. As an alternative, Winkler cited some of the Court’s decisions of a century ago, when he said the justices took a more limited view of corporate rights.

“The Supreme Court drew a line. The Supreme Court said corporations have property rights but not what the Court called ‘liberty rights,’ rights associated with personal conscience, political freedom, or bodily integrity,” Winkler said. “And for a while the Court really stuck to that line. And I think that provides at least a basis for beginning the conversation about corporate rights.” 

Posted March 29, 2018

Watch the video of the event here: