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Counsel for Amici Curiae Community Environmental

Legal Defense Fund, Inc. and The Program

On Corporations, Law, and Democracy


Richard L. Grossman, pro se

Box 390

Milton Mills, New Hampshire 03852

Hypertext, text-only, MSword, and PDF formats of this document are available at:


1 This Brief is a work in process of a joint drafting project, involving Richard Grossman - co-founder of the Program on Corporations, Law, and Democracy (POCLAD) - Thomas Linzey, Esq. – Staff Attorney for the Community Environmental Legal Defense Fund, Inc. - and Daniel E. Brannen, Jr., Esq. This Brief is jointly copyrighted by those three individuals with all rights reserved. Special thanks to Peter Kellman for his input into the drafting of this Brief. The Authors are eager to engage reviewers in dialogue about the contents and purposes of this Brief, and can be reached at info@celdf.org.

2 As Supreme Court Justice Thurgood Marshall once observed, however, while the Founding Fathers accurately described the people’s inalienable rights, they failed to extend those rights to all people. In the Bakke decision, Marshall explained that “[t]he denial of human rights was etched into the American Colonies’ first attempts at establishing self-government. . . . The self-evident truths and the unalienable rights were intended to apply only to white men.” Regents of the University of California v. Bakke, 438 U.S. 265, 388-89 (1978) (Marshall, J., concurring).

3 Continental Congress, Declaration of Resolves, 14 October 1774 (stating that colonial representatives “in behalf of themselves, and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatsoever. . .” ).

4 See, e.g., Virginia Const., 29 June 1776 (declaring that “some regular adequate Mode of civil Polity [must be] speedily adopted” to reverse the “deplorable condition to which this once happy Country” has been reduced); Virginia Declaration of Rights, June 21, 1776 (stating that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot. . . deprive or divest their posterity; namely, the enjoyment of life and liberty. . . and pursuing and obtaining happiness and safety”); Massachusetts Const., March 2, 1780 (proclaiming that “the end of the institution, maintenance and administration of government, is to secure the existence of the body politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life”).

5 Articles of Confederation, 1 March 1781 (declaring that the “said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare”).

6 Those democratic philosophies were, in turn, fomented by widespread Tudor rebellions and urban insurrections driven by popular movements that arose in England against monarchy and nobility. In response to expropriation, enclosures of the commons, impressments, enslavement, industrial exploitation, and unprecedented military mobilizations, England experienced the Cornish Rising (1497), the Lavenham Rising (1525), the Lincolnshire Rebellion (1536), the Ludgate Prison Riot (1581), the Beggars’ Christmas Riot (1582), the Whitsuntide Riots (1584), the Plaisterers’ Insurrection (1586), the Felt-Makers Riot (1591), Bacon’s Rebellion in the Virginia Colony (1675-1676) and others. See Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic 19, 136 (2000). “Years of attendance at town meetings had attuned the majority to elementary concepts, if not to detailed systems; to the idea of a state of nature, of a social compact, and of consent of the governed.” Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts 1774-1861 6-7 (1969).

7 In demanding independence, the colonists abandoned other remedies that fell short of creating a new nation, including a request for representation in the English parliament and other proposals that continued to recognize the English King as the Sovereign. See, e.g., Letter from the House of Representatives of Massachusetts to Henry Seymour Conway, February 13, 1768 (declaring that “[t]he people of this province would by no means be inclined to petition the parliament for representation”) (reprinted in Harry Alonzo Cushing, ed., The Writings of Samuel Adams 191 (1968)).

8 See Howard J. Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 Stanford L. Rev. 3, 5 (1954) (“More and more, Section One is seen to have been a synthesis of the three clauses and concepts which spearheaded the organized antislavery movement’s constitutional attack on slavery and racial discrimination”); Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment, 66 Temple L. Rev. 361 (1993).

9 Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment, 66 Temple L. Rev. 361, 378-79 (1993); See also, Howard J. Graham, The Early Antislavery Backgrounds of the Fourteenth Amendment, Everyman’s Constitution at ch. 4 (1968). After adoption of the Fourteenth Amendment by Congress, Speaker of the House Schuyler Colfax spoke in favor of Section 1: “I will tell you why I love it. It is because it is the Declaration of Independence placed immutably and forever in the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 2459 (1866).

10 The guarantee of a republican form of government is a fundamental underpinning of this nation’s founding documents. See, e.g., U.S. Const. art. IV, §4 (declaring that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government”); Virginia Declaration of Rights, June 12, 1776 (declaring that “all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable to them”).

11 See, e.g., James Otis, The Rights of the British Colonies Asserted and Proved, 1764 (declaring “let the origin of government be placed where it may – the end of it is manifestly the good of the whole. . .”); Montesquieu, Spirit of Laws, Bk. 2, Ch. 2, 1748 (stating that “[w]hen the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy”); See also, Statement of the Berkshire County, Massachusetts, Representatives, November 17, 1778 (declaring the proposition “that the Majority should be governed by the Minority in the first Institution of Government is not only contrary to the common apprehensions of Mankind in general, but it contradicts the common Law of Justice and benevolence”); Fitzwilliam Byrdsall, The History of the Loco-Focos, or Equal Rights Party 169 (reprinted 1967) (quoting the New York Convention of the Equal Rights Party, which declared that “[t]he great object of a constitution is, to prevent the officers of government from assuming powers incompatible with the natural rights of man”).

12Massachusetts Const., Arts. VI and VII (March 2, 1780). See also, Virginia Declaration of Rights at 4 (June 12, 1776); Pennsylvania Constitution of 1776 at fifth provision (reprinted in Pennsylvania Legislative Reference Bureau, Constitutions of Pennsylvania/ Constitution of the United States 235 (1967)).

13 See, e.g., The Declaration of Independence, para. 1 (U.S. 1776) (listing the grievances of the colonists).

14 James K. Hosmer, Samuel Adams 212 (stating that the English Parliament hoped that “the prosperity of the East India Company would be furthered, which for some time past, owing to the colonial non-importation agreements, had been obliged to see its tea accumulate in its warehouses, until the amount reached 17,000,000 pounds”).

15 The East India Company, and its actions in other countries, features prominently in early colonial pamphlets. See, e.g., The Alarm, Number II (October 9, 1773) (declaring that “the East India Company obtained their exclusive privilege of Trade to that Country, by Bribery and Corruption. Wonder not then, that Power thus obtained, at the Expence of the national Commerce, should be used to the most tyrannical and cruel Purposes. It is shocking to Humanity to relate the relentless Barbarity, practiced by the Servants of that Body, on the helpless Asiatics, a Barbarity fearce equaled even by the most brutal Savages, or Cortez, the Mexican Conquerer”).

16 Richard L. Grossman, Wresting Governing Authority from the Corporate Class: Driving People into the Constitution, 1 Seattle Journal for Social Justice 147, 149-150 (Spring/Summer 2002); Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U.Chicago L. Rev. 1441 (1987).

17 See Louis K. Liggett Co., v. Lee, 288 U.S. 517 (1933) (Brandeis, J., dissenting) (stating that “at first the corporate privilege was granted sparingly; and only when the grant seemed necessary in order to procure for the community some specific benefit otherwise unattainable”).

18 For a summary of the history of early citizen control of corporations, see Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of Incorporation 6-18 (5th Ed. 2002); See also, Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (1933); Edwin Merrick Dodd, American Business Corporations Until 1860 (1934); Louis Hartz, Economic Policy and Democratic Thought, Pennsylvania, 1776-1860 (1948); and Thomas Frost, A Treatise on the Incorporation and Organization of Corporations 1 (1908).

19 Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts 1774-1861 125 (1969).

20 Id. at 65-66.

21 Robert Hamilton, The Law of Corporations 6 (1991).

22 Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of Incorporation 14 (2002) (quoting a New Jersey newspaper which declared that “the Legislature ought cautiously to refrain from increasing the irresponsible power of any existing corporations, or from chartering new ones,” else people would become “mere hewers of wood and drawers of water to jobbers, banks, and stockbrokers”); See Liggett Co. v. Lee, 288 U.S. 517, 565 (1933) (Brandeis, J., dissenting) (explaining that “[t]hrough size, corporations. . . have become an institution – an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state”).

23 Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of Incorporation 7 (2002).

24 Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of Incorporation 6-9 (2002); See Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chicago L. Rev. 1441 (1987).

25 See, e.g., People v. North River Sugar Ref. Co., 24 N.E. 834, 835 (NY 1890) (explaining that the court must determine whether a corporation has “exceeded or abused its powers” and if so, whether “that excess or abuse threatens or harms the public welfare”); Wilmington City Railway Co. v. People’s Railway Co., 47 A. 245, 248 (Del. Ch. 1900) (proclaiming that the remedy of quo warranto extends back to “time whereof the memory of man runneth not to the contrary”).

All fifty states, plus the District of Columbia, have retained fragments of quo warranto laws. The authority over the creation and dissolution of corporations has always been a legislative power. See Thomas Linzey, Awakening a Sleeping Giant: Creating a Quasi-Private Cause of Action for Revoking Corporate Charters in Response to Environmental Violations, 13 Pace Envt’l L. Rev. 219, 223 (1995). Contemporary attempts to enforce portions of those laws, which at most offer a remedy solely for the “misuse and abuse” of a corporate charter by a single giant corporation, have been unsuccessful. See, e.g., CELDF v. WMX, Technologies, et al., 1074 M.D. 1996 (Commonwealth Court of Pennsylvania 1997); and William Wynn, ex. rel., v. Phillip Morris, Inc. et al., CV-98-03295 (Jefferson County, Alabama Circuit Court 1999).

26 See St. Louis, I.M. & S Ry. Co. v. Paul, 173 U.S. 404 (1899) (declaring that corporations are “creations of state”); The Bank of Augusta v. Earle, 38 U.S. 519 (1839) (stating that “corporations are municipal creations of states”); United States v. Morton Salt Co., 338 U.S. 632, 650 (1950) (explaining that corporations “are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege as artificial entities”); Hale v. Henkel, 201 U.S. 43, 75 (1906) (declaring that “the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. . . . Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation”); Chincleclamouche Lumber & Broom Co. v. Commonwealth, 100 Pa. 438, 444 (Pa. 1881) (stating that “the objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country”); See also, People v. North River Sugar Refining Company, 24 N.E. 834 (NY 1890) (declaring that “[t]he life of a corporation is, indeed, less than that of the humblest citizen. . .”); F.E. Nugent Funeral Home v. Beamish, 173 A. 177 (Pa. 1934) (declaring that “[c]orporations organized under a state’s laws. . . depend on it alone for power and authority”); People v. Curtice, 117 P. 357 (Colo. 1911) (declaring that “[i]t is in no sense a sovereign corporation, because it rests on the will of the people of the entire state and continues only so long as the people of the entire state desire it to continue”); State v. Walmsley, 162 So. 826 (La. 1935) (stating that corporations are “mere creatures of the Legislature and are entirely subject to the legislative will”).

27 See Virginia Bankshares v. Sandberg, 501 U.S. 1083 (1991); Kamen v. Kember Fin. Servs., 500 U.S. 90 (1991); Braswell v. United States, 487 U.S. 99 (1988); Ball v. James, 451 U.S. 355 (1981); Burks v. Lasker, 441 U.S. 471 (1979); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462 (1977); Cort v. Ash, 422 U.S. 66 (1975); United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145 (1965); Shapiro v. United States, 335 U.S. 1 (1948); Coleman v. Miller, 307 U.S. 433 (1939); Williams v. Baltimore, 289 U.S. 36 (1933); Ferry v. Ramsey, 277 U.S. 88 (1928); Essgee Co. of China v. United States, 262 U.S. 151 (1923); Yazoo & M.V.R.Co. v. Clarksdale, 257 U.S. 10 (1921); United States v. American Tobacco Co., 221 U.S. 106 (1911); Wilson v. United States, 221 U.S. 361 (1911); Chicago, B&Q.R.Co. v. McGuire, 219 U.S. 549 (1911); Hale v. Henkel, 201 U.S. 43 (1906); Worcester v. Worcester C.S.R.Co., 196 U.S. 539 (1905); Terre Haute & I.R.Co. v. Indiana, 194 U.S. 579 (1904); Carstairs v. Cochran, 193 U.S. 10 (1904); Atkin v. Kansas, 191 U.S. 207 (1903); Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308 (1902); Hancock Mut. Life Ins. Co. v. Warren, 181 U.S. 73 (1901); Jellenik v. Huron Copper Mining Co., 177 U.S. 1 (1900); Woodruff v. Mississippi, 162 U.S. 291 (1896); Moran v. Sturges, 154 U.S. 256 (1894); New Orleans v. New Orleans Water Works Co., 142 U.S. 79 (1891); Merrill v. Monticello, 138 U.S. 673 (1891); Philadelphia & Southern Mail S.S. Co. v. Pennsylvania, 122 U.S. 326 (1887); Sinking-Fund Cases, 99 U.S. 700 (1878); Railroad Co. v. Maryland, 88 U.S. 456 (1874); Dodge v. Woolsey, 59 U.S. 331 (1855); Bank of Augusta v. Earle, 38 U.S. 519 (1839); Briscoe v. President & Directors of Bank of Kentucky, 36 U.S. 257 (1837).

28 Corporations, of course, are not mentioned in the Constitution.

29 The framers of the Constitution codified slavery in Article I, §2 (apportioning slaves as equivalent to three-fifths of a person for purposes of representation), Article I, §9 (ensuring that importation of slaves would be legal until at least 1808), and Article IV, §2 (declaring that “[n]o person held in Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any regulation therein, be discharged from such Service of Labour, but shall be delivered up on Claim of the Party to whom such Service of Labour may be due”); Regents of the University of California v. Bakke, 438 U.S. 265, 388-89 (1978) (Marshall, J., concurring). The 1793 and 1850 Fugitive Slave Acts were adopted to further those constitutionally embedded property rights of slave owners. Those Acts paid a reward - from public monies - to federal marshals for each slave captured, prohibited any trial by jury for the slave, and prohibited the slave from testifying at any hearing held under the Acts. See The Avalon Project at Yale Law School, The Fugitive Slave Act of 1850 (2002).

It is also important to remember that “[t]he denial of human rights was etched into the American Colonies’ first attempts at establishing self-government. . . . The self-evident truths and the unalienable rights were intended to apply only to white men.” Bakke at 388-389.

30 See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (expanding Fourteenth Amendment guarantees to illegal aliens residing in the United States); Poe v. Ullman, 367 U.S. 497, 516 (1961) (Douglas, J., dissenting) (declaring that “[w]hen the Framers wrote the Bill of Rights, they enshrined in the form of constitutional guarantees those rights – in part substantive, in part procedural – which experience indicated were indispensable to a free society”); Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923) (declaring that the Fourteenth Amendment “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”).

31 Howard J. Graham, The ‘Conspiracy Theory’ of the Fourteenth Amendment, 47 Yale L.J. 371 (1938) (explaining that Conkling’s argument was baseless, stating that his argument constituted the “still almost incredible, misquotation and forgery. . . [because] nowhere does Conkling explicitly say that the Committee regarded corporations as ‘persons’; nowhere does he say that the members framed the due process and equal protection clauses with corporations definitely in mind. . . nor [did] anyone at any time or under any circumstances, so far as the historical record indicates, ever use the word ‘citizen’ in any draft of the equal protection or due process clause.” Graham adds that in Conkling’s argument, he explicitly admitted that “those who devised the 14th Amendment may have builded better than they knew” and that Conkling “misquoted the original Journal in his argument, and it is almost impossible to believe that he did not do this intentionally”) (emphasis added).

32 Howard J. Graham, Builded Better Than They Knew, 17 U.Pitt L. Rev. 537 (1956). While Chief Justice Waite’s announcement was not part of the written opinion in Santa Clara, courts have repeatedly upheld the proposition that corporations are “persons” for purposes of Fourteenth Amendment protections. The U.S. Supreme Court has reiterated and reinforced the Santa Clara holding in at least twenty-two different cases. See, e.g. Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26, 28 (1889) (declaring that “we admit the soundness” of the position of Santa Clara); Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578 (1896) (declaring that “it is now settled that corporations are persons, within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law, as well as a denial of the equal protection of the laws”), Smyth v. Ames, 169 U.S. 466 (1898) (declaring “that corporations are persons within the meaning of this amendment is now settled”), Hale v. Henkel, 201 U.S. 43 (1906) (declaring that the principle that “corporations are, in law, for civil purposes, deemed persons, is unquestionable”); Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U.S. 544, 550 (1923) (declaring that “a state has no more power to deny to corporations the equal protection of the law than it has to individual citizens”); Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927) (stating that Equal Protection guarantees “extend to corporate, as well as natural persons”).

33 Supreme Court justices have authored extensive dissenting opinions challenging the discovery of corporations in the Fourteenth Amendment. See Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85-90 (1938) (Black, J., dissenting) (declaring that “[n]either the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection”); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576-581 (1949) (Douglas, J., and Black, J., dissenting) (declaring that “I can only conclude that the Santa Clara case was wrong and should be overruled”); See also, Hale v. Henkel, 201 U.S. 43, 78 (1906) (Harlan, J., concurring) (declaring that “in my opinion, a corporation – an artificial being, invisible, intangible, and existing only in contemplation of law – cannot claim the immunity given by the 4th Amendment; for it is not a part of the “people” within the meaning of that Amendment. Nor is it embraced by the word “persons” in the Amendment”); Bell v. Maryland, 378 U.S. 226 (1964) (Douglas, J., dissenting) (declaring that “[t]he revolutionary change effected by affirmance in these sit-in cases would be much more damaging to an open and free society than what the Court did when it gave the corporation the sword and shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment”); First National Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (Rehnquist, J., dissenting) (declaring that “[t]his Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment”).

34 During this period, legal theorists sought to legitimate corporations as having natural rights. According to Professor Morton Horwitz, “[b]eginning in the 1890’s and reaching a high point around 1920, there is a virtual obsession in the legal literature with the question of corporate personality. Over and over again, legal writers attempted to find a vocabulary that would enable them to describe the corporation as a real or natural entity whose existence is prior to, and separate from, the state.” Morton Horwitz, The Transformation of American Law, 1870-1960 101 (1992). Professor Horwitz explains that “[t]he basic problem of legal thinkers after the Civil War was how to articulate a conception of property that could accommodate the tremendous expansion in the variety of forms of ownership spawned by a dynamic industrial society. . . The efforts by legal thinkers to legitimate the business corporation during the 1890’s were buttressed by a stunning reversal in American economic thought – a movement to defend and justify as inevitable the emergence of large-scale corporate concentration.” Id. at 80, 145.

35 Kurland and Lerner, eds., The Founders’ Constitution 425 (1987).

36 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); See Bellotti at 822 (Rehnquist, J., dissenting) (declaring that “the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible”). The Bellotti decision overturned “similar laws in thirty other states, thus facilitating corporate speech on public policy issues and establishing a legal principle of the corporation’s rights” to protections afforded by the First Amendment. Dan Kennedy, Silent Swoosh, Boston Phoenix, May 2, 2003.

37 See, e.g., Jacobus v. State of Alaska, No. 01-35666 (9th Cir. 2003) (declaring that “corporations have rights under the First Amendment” and then proceeding to a discussion of the extent of those rights in electoral activities, without explaining the underlying justification for the conferral of rights).

38 See, e.g., Central Hudson Gas & Electric Corp., v. Public Utilities Comm’n, 447 U.S. 557 (1980) (declaring that a state regulation banning all utility corporations from promoting the use of electricity in advertisements – adopted during the mid-1970’s energy crisis – violated the “commercial speech” of the corporation, while failing to explain the underlying justification for the conferral of First Amendment rights upon corporations); See also, Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (declaring unconstitutional a Virginia statute that prohibited price advertising of prescription drugs).

39 See, e.g., Pacific Gas & Elec. Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986) (declaring that the First Amendment created a corporation’s “negative speech” rights, which prevented utility ratepayers from using empty space within the monthly billing envelopes, without discussing the justification for the judicial conferral of First Amendment rights); But see, Id. at 25 (Rehnquist, J., dissenting) (declaring that “[n]or do I believe that negative free speech rights, applicable to individuals and perhaps the print media, should be extended to corporations generally”).

40 But see, Salyer Land Co. v. Tulare Lake Basin Water Stor. District, 410 U.S. 719 (1973) (Douglas, J., dissenting) (declaring that “it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. . . the result [would be] a corporate political kingdom”).

41 See, e.g., Dow Chemical Corporation v. U.S., 476 U.S. 337 (1986) (ruling that the Dow Chemical Corporation was entitled to expansive Fourth Amendment protections when the Environmental Protection Agency flew planes over the corporation’s manufacturing facilities to ensure compliance with the Clean Air Act. Instead of explaining why the corporation was entitled to Fourth Amendment protections, the Court struck the challenge on the basis that the overflights were not “searches”); See also, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946); California Bankers Assn. v. Shultz, 416 U.S. 21 (1974); Federal Trade Comm’n v. American Tobacco Co., 264 U.S. 298 (1924); Consolidated Rendering Co. v. Vermont, 207 U.S. 541 (1908); Go-Bart Co. v. United States, 282 U.S. 344 (1931); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

42 Even prior to Noble, however, the United States Supreme Court had implicitly found that corporations were entitled to constitutionally derived due process rights under the Fifth Amendment. See United States v. Union Pac. R.Co. 98 U.S. 569, 606, 616 (1878) (holding that Congressional action to recover public monies invested in the Union Pacific Railroad Company circumvented due process guarantees for the corporation and its managers); Sinking-Fund Cases, 99 U.S. 700, 718-19 (1878) (holding that Congress, “equally with the States, [is] prohibited from depriving persons or corporations of property without due process of law”); and Newport and Cincinnati Bridge Co. v. United States, 105 U.S. 470, 480 (1881) (holding that a chartered bridge corporation possessed a vested right that could not arbitrarily be removed by an Act of Congress).

43 Mahon is most often cited by the legal community for the proposition that environmental regulations “take” property under the Fifth Amendment, thus resulting in the necessity of compensation for the property owner. Mahon, however, is the first case in which the Court declared that the Fifth Amendment mandated that corporations be compensated for the diminishment in property value resulting from the application of regulations seeking to protect the health, safety, and welfare of people and the natural environment.

44 In Fong Foo, the Standard Coil Products Corporation was indicted for “knowingly and willfully” falsifying, and conspiring “with others to falsify, tests of radiosondes (electronic devices for furnishing weather data) being manufactured” for the Army Signal Supply Agency. See In the Matter of United States of America, 286 F.2d 556 (1st Cir. 1961) (lower court decision); See also United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) (holding in favor of a textile corporation that invoked the double jeopardy clause of the Fifth Amendment to avoid retrial in a criminal antitrust action).

45 Dartmouth College v. Woodward, 4 Wheat. 518 (1816).

46 See New Hampshire Const., Art. 83 (declaring that “knowledge and learning. . . being essential to the preservation of a free government . . .it shall be the duty of the legislators and magistrates . . . to cherish the interests of literature and the sciences, and all seminaries and public schools”); Meyer v. State of Nebraska, 262 U.S. 390, 400 (1923) (declaring that “[t]he American people have always regarded education and the acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares ‘Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged’”).

47 Nathaniel Adams, Reports on Cases Argued and Determined in the Superior Court of Judicature for the State of New-Hampshire 135 (1819) (quoting Chief Justice William M. Richardson, author of the New Hampshire Supreme Court decision in Dartmouth, who declared for the Court that:
I cannot bring myself to believe, that it would be consistent with sound policy, or ultimately with the true interests of literature itself, to place the great public institutions, in which all the young men, destined for the liberal professions, are to be educated, within the absolute control of a few individuals, and out of the control of the sovereign power – not consistent with sound policy, because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus entrusted in the hands of a few. The education of the rising generation is a matter of the highest public concern, and is worthy of the best attention of every legislature. . . . We are therefore clearly of opinion, that the charter of Dartmouth College, is not a contract, within the meaning of this clause in the Constitution of the United States).

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