Creature of Capitalism: A Legal History of Corporate Personhood, 1790-1890
Creators: name: Berkowitz, Jared Seth
Publisher: name: Brandeis University
Year: 2025
Subjects: subject: corporate personhood
subject: corporations
subject: legal history
subject: Business
subject: Capitalism
subject: Economic History
subject: Law
subject: FOS: Law

description: This dissertation historicizes the legal theory of corporate personhood—the legal idea that enables corporations to buy, sell and sue—within the long nineteenth century. In contemporary law and society this doctrine is a source of controversial power that many scholars believe threatens American democracy. Supreme Court decisions (such as Citizens United v. FEC, Burwell v. Hobby Lobby, and Masterpiece Cakeshop v. Colorado) awarded first amendment rights of speech and religious exercise to corporations. These cases used legal personhood as a point of departure to expand the liberty rights of corporations. In the past, however, a different view prevailed. For much of the nineteenth century, this dissertation shows, a corporation’s “personhood” was its most vulnerable legal attribute.
description: The chapters that follow reveal that during the Antebellum Era law and the courts favored capitalism—not corporations. This contributed to an odd but captivating set of legal controversies at the state level that depended upon the court’s definition of the term “person.” For example, as states scrambled for cash during the economic crises of 1819 and 1837 laws relating to debt collection were broadly construed by the courts to protect creditors. The elasticity of legal personhood in the early nineteenth century gave state courts an opportunity to protect creditors and act as de facto regulators of nefarious corporate activity. The law of foreign attachment, statutes enacted by states to allow domestic creditors to seize the property of absentee debtors, provides one example of how personhood limited corporate power. While the legislative policy behind attachment was clear, its application to corporations was not. These laws were designed to prevent arms-length fraud by persons who resided in one state or nation while doing business among many others. Whether corporations—artificial persons—were contemplated by legislatures when they chose the word “person” was a reasonable debate. Corporate personhood, in these moments, prevented companies from escaping debts and bolstered the power of states to control corporations. To evade attachment, corporate lawyers relied on the definition of “person;” at times they argued that corporations were “artificial entities” and not “persons,” therefore they were “exempt” from attachment. Most jurisdictions, however, rejected this strategy and applied attachment broadly. Judge Eugenius Nesbitt of Georgia, for example, was among many who construed the term “person” to include corporations arguing that “the word is descriptive of all those who are … persons.” Charles J. Ingersoll, in support of Pennsylvania’s law of attachment, celebrated how while “corporations are formidable…[t]he march of the law has been to break them down, by imparting the attributes of natural persons.” Corporate lawyers in the nineteenth century, however, cringed at this interpretation of “person.” By applying the same rules to natural persons and artificial or corporate persons, state courts protected creditors—not corporations—in support of an increasingly complex capitalist economy.
description: On the eve of the Civil War, however, corporate personhood transformed into a source of power. By 1860 business associations were not only citizens; they were persons with a defensible character and reputation. The passage of the Fourteenth Amendment only energized the potential power of corporate personhood. In the 1880s, as corporate capitalism took hold of the national economy, the “the attributes of natural persons”—legal personhood—liberated corporate power. Famously, in defense of the Santa Clara Railroad Company, lawyers in federal courts argued that corporations were “persons” whose property rights were protected under the due process clause of the newly minted Fourteenth Amendment. This kind of argument, although met with mixed success, was unimaginable just a few decades earlier. Ultimately, Creature of Capitalism reveals how the purpose of this legal idea dramatically changed over time—challenging modern assumptions that corporate personhood was routinely a source of power for private politically motivated institutions. The following chapters demonstrate how the modern doctrine of corporate personhood, one that expanded corporate power, was an unintended consequence of a regulatory jurisprudence designed to facilitate capitalism not corporate power.