Sometime in the next week, the U.S. Supreme Court will decide Sebelius v. Hobby Lobby Stores, in which one of the key issues is whether a corporation such as Hobby Lobby can object to federal healthcare legislation on the grounds that mandating employee contraception coverage violates the corporation's right to religious expression.
I don't pretend to know how the Supreme Court will decide this case, but, like Citizens United before it, this one raises some fundamental questions about corporate rights, with far-reaching implications for ERI’s work in protecting communities around the world - should business corporations have any constitutional rights at all?
It's not a crazy question, when you examine the history of corporations and the fact that even within the context of corporations, most constitutional rights are exercised by people, not the "corporation."
Since so many of our Supreme Court justices are obsessed with original intent, let's tackle history first.
At the time of the framing of the Constitution, there were a few kinds of corporations that were recognized. The "corporation sole" was typically used for religious officeholders, to pass down church property from (for example) one bishop to his or her successor. Most other corporations were chartered by a governmental act, and were predominantly religious and educational institutions. Harvard College, for example, was chartered by the governor of the Massachusetts Bay colony in 1650 (and this charter continues to govern the university's status). Cities were deemed municipal corporations. And there were a few business corporations granted charters, such as the East India Company.
The idea of a general incorporation law - in which anyone could register a corporation without a governmental act - was pioneered by New York in 1784, but only in the context of religious institutions. It was not until 1795 that any state (in this case, North . . .