Article

Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection

This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this Article argues that corporations were instrumental in laying the foundation of the Equal Protection Clause that underlies civil rights jurisprudence today. By simultaneously bringing cases involving both corporations and Chinese immigrants, corporate lawyers and sympathetic federal judges crafted a broad interpretation of equal protection in order to draw a through-line from African Americans, to Chinese immigrants, and finally to corporate shareholders. At the same time that corporate litigation expanded the umbrella of protected “persons,” however, it limited the capacity of the Fourteenth Amendment to address issues of substantive inequality.

This Article reveals that central to the argument in favor of corporate constitutional personhood was a direct analogy between corporate shareholders and racial minorities. This Article thus highlights the intersection of corporate personhood and race, a connection that has rarely, if ever, been explored. Corporate lawyers’ expansive interpretation of equal protection ultimately triumphed in the Supreme Court with the twin cases of Yick Wo v. Hopkins, a bedrock of modern civil rights doctrine, and Santa Clara v. Southern Pacific Railroad, a case credited with extending equal protection rights to corporations. This is the first Article to juxtapose these two seminal cases and to expose the deep and long-standing connections between them. In so doing, this Article uncovers a neglected history of the link between corporations and race, as well as a lost history of the Fourteenth Amendment.

Introduction

“Like Frankenstein’s baby, there was no end to its growing, and no limit to its voracity. And, like that wonderful child, it started in to devour its author.”

– Records of the California Constitutional Convention (1878)

“The Fourteenth Amendment . . . stands in the constitution as a perpetual shield against all unequal and partial legislation by the states, and the injustice which follows from it, whether directed against the most humble or the most powerful; against the despised laborer from China, or the envied master of millions.”

– The Railroad Tax Cases (9th Cir. 1882)

Since the controversial cases of Citizens United v. Federal Election Commission1 1.558 U.S. 310 (2010).Show More and Burwell v. Hobby Lobby,2 2.573 U.S. 682 (2014).Show More which recognized the political speech and religious freedom rights of corporations,3 3.In Citizens United, the Supreme Court struck down a federal law, 2 U.S.C. § 441b (2006), that banned direct corporate spending on political campaigns. 558 U.S. at 372. Citizens United was part of a long line of cases in which the Court had recognized the First Amendment rights of corporations, including: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (freedom of association); NAACP v. Button, 371 U.S. 415, 428–29 (1963) (freedom of expression and association); New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964) (freedom of speech and the press); and First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (campaign expenditures as political speech). Hobby Lobby concluded that corporations were “persons” under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1, and held that Health and Human Services regulations requiring employers to provide insurance that covered contraceptives unconstitutionally burdened closely held corporations’ exercise of religion. 573 U.S. at 736.Show More respectively, activist groups have been lobbying for a constitutional amendment to eliminate corporate constitutional personhood.4 4.See Move to Amend, https://www.movetoamend.org/ [https://perma.cc/RH9L-2FZT] (last visited Aug. 19, 2020); United for the People, http://united4thepeople.org/ [https://perma.cc/XS9X-LZNR] (last visited Aug. 19, 2020).Show More Granting corporations constitutional rights, they argue, gives powerful mega-corporations even greater means to avoid regulation and manipulate elections, thus threatening “the democratic promise of America.”5 5.United for the People, supra note 4; Move to Amend, supra note 4. See Joanna M. Meyer, The Real Error in Citizens United, 69 Wash. & Lee L. Rev. 2171, 2198 (2012).Show More In 2019, Rep. Pramila Jayapal (D-WA) introduced a bill to provide that “the rights extended by the Constitution are the rights of natural persons only” and that corporations “shall have no rights under this Constitution.”6 6.H.R.J. Res. 48, 116th Cong. (2019) (proposing an amendment to the Constitution of the United States providing that the rights extended by the Constitution are the rights of natural persons only). Other bills introduced in both the House and the Senate have targeted specific constitutional rights, such as one “waiving the application of the first article of amendment to the political speech of corporations.” H.R.J. Res. 39, 116th Cong. (2019). See United for the People, http://united4thepeople.org/amendments/ (last visited Oct. 31, 2021) [https://perma.cc/QGU7-883U], for an up-to-date list of proposed amendments relating to corporate constitutional rights.Show More Supporters of this amendment showcase buttons and bumper stickers that proclaim: “Corporations are not People!”7 7.See Move to Amend, https://move-to-amend.myshopify.com/collections/frontpage [https://perma.cc/8JVP-CYAD] (last visited Dec. 28, 2021).Show More

Corporate constitutional rights have been debated since the early years of the American Republic.8 8.For early cases debating the constitutional rights of corporations, see Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 63–64 (1809); Hope Insurance Co. of Providence v. Boardman, 9 U.S. (5 Cranch) 57, 58 (1809); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46–47 (1815); Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, 556 (1819); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Peters) 420, 421 (1837); and Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 43 U.S. (2 Howard) 497, 499 (1844). See also Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights, at xxi (2018) (describing how the country’s most powerful corporations have persistently tried to use the Constitution to evade unwanted government regulations); Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1680 (2015) (explaining how the Supreme Court was tasked with determining the applicability of constitutional provisions to corporations in an 1809 case involving the first Bank of the United States).Show More Missing from histories of corporate personhood, however, is the central role that race played in the development of corporate constitutional rights.9 9.Legal historians of corporate personhood have discussed corporate Fourteenth Amendment cases in some detail but have neglected the role that race played in the development of these cases. For representative writings on corporate personhood and constitutional rights, see Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173, 174 (1985); Blair & Pollman, supra note 8, at 1677; Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 Wis. L. Rev. 999, 1033–34; Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441, 1443 (1987); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640–41 (1988); David K. Millon, Theories of the Corporation, 1990 Duke L.J. 201, 205–07; Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629, 1630; Margaret M. Blair, Corporate Personhood and the Corporate Persona, 2013 U. Ill. L. Rev. 785, 796–97; Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment. 309, 310–12 (2015); Tamara R. Piety, Why Personhood Matters, 30 Const. Comment. 361, 362–63 (2015); Turkuler Isiksel, Corporations as Rights-Bearers, J. Pol. (forthcoming) (manuscript at 1–2) (on file with the author).Show More This Article uncovers this link by highlighting the strategy of a group of corporate lawyers and Ninth Circuit10 10.At the time, the Circuit Court for the District of California, where the cases discussed in this Article arose, was located in the federal circuit encompassing California and Oregon. This court exercised both original and appellate jurisdiction and was staffed by one Supreme Court Justice (Stephen Field), one circuit court judge (Lorenzo Sawyer), and one district court judge (Ogden Hoffman), any two of which could hear a case. Christian G. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851–1891, at 29–30 (1991). To avoid confusion, this Article follows contemporary scholarship that refers to these cases as occurring in the Ninth Circuit. Id. at 29; Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism 573 (1968); Winkler, supra note 8, at 153–54. However, this should not be confused with the modern-day U.S. Court of Appeals for the Ninth Circuit, which was not created until the federal appellate system was redesigned in 1891. Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753, 1826 (2003).Show More judges to expand the Fourteenth Amendment using cases involving both corporations and race. As this Article reveals, modern ideas about corporate personhood are predicated on a historical analogy between corporate shareholders and racial minorities.11 11.A growing area of scholarship explores the connections between corporations and race. See, e.g., Cheryl L. Wade, Attempting to Discuss Race in Business and Corporate Law Courses and Seminars, 77 St. John’s L. Rev. 901 (2003); Alfred Dennis Mathewson, Race in Ordinary Course: Utilizing the Racial Background in Antitrust and Corporate Law Courses, 23 St. John’s J. Legal Comment. 667, 685 (2008); Cheryl L. Wade, Introduction to Symposium on People of Color, Women, and the Public Corporation: The Sophistication of Discrimination, 79 St. John’s L. Rev. 887, 890 (2005); Thomas W. Joo, Corporate Hierarchy and Racial Justice, 79 St. John’s L. Rev. 955 (2005); Thomas W. Joo, Race, Corporate Law, and Shareholder Value, 54 J. Legal Ed. 351 (2004); Juliet E.K. Walker, White Corporate America: The New Arbiter of Race? in Constructing Corporate America: History, Politics, Culture, 246, 253, 260 (Kenneth Lipartito & David B. Sicilia eds., 2007).Show More Yet racial analogies not only helped corporations gain constitutional rights; corporations themselves created constitutional guarantees that ultimately protected racial minorities. This neglected history shows that corporations have been crucial players in shaping rights guarantees—particularly an expansive interpretation of equal protection under the Fourteenth Amendment—that apply to individuals as well. In revealing these complex interconnections, this Article exposes the multifaceted legacy of litigation over corporate personhood in the development of modern equal protection jurisprudence.

This Article juxtaposes two seminal cases, decided on the same day in 1886 and brought by the same lawyers: Santa Clara County v. Southern Pacific Railroad,12 12.118 U.S. 394 (1886).Show More credited with establishing corporate Fourteenth Amendment rights,13 13.See Horwitz, supra note 9, at 173; Blair & Pollman, supra note 8, at 1694–95; Avi-Yonah, supra note 9, at 1033–34.Show More and Yick Wo v. Hopkins,14 14.118 U.S. 356 (1886).Show More a touchstone of modern civil rights jurisprudence.15 15.See 2 Encyclopedia of American Civil Rights and Liberties 482, 1055 (Kara E. Stooksbury, John M. Scheb, II & Otis H Stephens, Jr. eds., rev. and expanded ed. 2017); Peter Irons, Jim Crow’s Children: The Broken Promise of the Brown Decision 53 (2004); see also infra notes 327–35 (noting early civil rights cases citing Yick Wo).Show More This Article uncovers the conjoined history of these two Fourteenth Amendment cases, one involving a corporation and the other a Chinese immigrant, and their antecedents.16 16.Scholars have studied the connection between Fourteenth Amendment claims of Chinese immigrants and the Supreme Court’s desire to protect economic rights. See Thomas Wuil Joo, New “Conspiracy Theory” of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354–55 (1995); Thomas W. Joo, Yick Wo Re-Revisited: Nonblack Nonwhites and Fourteenth Amendment History, 2008 U. Ill. L. Rev. 1427, 1428; Charles McClain, Jr., In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America 83 (1994); Graham, supra note 10, at 15; Daniel W. Levy, Classical Lawyers and the Southern Pacific Railroad, 9 W. Legal Hist. 177, 211, 216 (1996); Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age 209 (1997); Winkler, supra note 8, at 153. However, no prior scholarship has specifically examined the intersection of Fourteenth Amendment claims by corporations and by Chinese immigrants.Show More Drawing on little-known archival sources, it traces how the same coterie of corporate lawyers simultaneously brought Fourteenth Amendment cases involving Chinese and corporate litigants before the sympathetic Ninth Circuit in order to strategically craft a broad interpretation of the Equal Protection Clause that applied to all “persons,” natural and artificial alike.17 17.See In re Ah Fong, 1 F. Cas. 213, 213 (C.C.D. Cal. 1874) (No. 102); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 252 (C.C.D. Cal. 1879) (No. 6,546); In re Ah Chong, 2 F. 733, 737 (C.C.D. Cal. 1880); In re Tiburcio Parrott, 1 F. 481, 482 (C.C.D. Cal. 1880); The Railroad Tax Cases, 13 F. 722, 727 (C.C.D. Cal. 1882); In re Quong Woo, 13 F. 229, 233 (C.C.D. Cal. 1882); County of Santa Clara v. S. Pac. R.R. Co., 18 F. 385, 386, 397 (C.C.D. Cal. 1883), aff’d, 118 U.S. 394 (1886); In re Yick Wo, 9 P. 139, 139 (Cal. 1885), rev’d sub nom. Yick Wo v. Hopkins, 118 U.S. 356 (1886); In re Wo Lee, 26 F. 471, 475 (C.C.D. Cal. 1886).Show More Although in the Slaughter-House Cases the Supreme Court had suggested that it would read the Fourteenth Amendment narrowly,18 18.Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80–81 (1873).Show More in Yick Wo and Santa Clara the Court changed course and adopted the Ninth Circuit’s expansive interpretation of equal protection, a doctrinal shift with lasting effects today.

This is not a story of unintended consequences. By expanding the scope of the Equal Protection Clause to include Chinese immigrants, corporate lawyers were able to use the Chinese cases to draw a through-line from African Americans—the original beneficiaries of the Fourteenth Amendment—to Chinese immigrants, to corporate shareholders.19 19.The social and political connections of Chinese “coolies” with railroad and mining corporations in the context of Greater Reconstruction debates over the meaning of “free labor” and “equality” are explored in Evelyn Atkinson, Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment, 10 J. Civ. War Era 54 (2020).Show More This comparison was made possible because corporate lawyers and federal judges intentionally portrayed the corporation as simply an aggregate of rights-bearing shareholders who did not forsake their constitutional rights when they joined the corporation. In this framing, shareholders were members of a persecuted group, the same as racial minorities.

This view of the corporation as solely an aggregate of rights-bearing shareholders was at odds with an older common law vision of the corporation as both an aggregate of individuals and a separate legal person with special rights and duties distinct from those of “natural” persons.20 20.See John Dewey, The Historic Background of Corporate Legal Personality, 35 Yale L.J. 655, 656 (1926); 3 The Collected Papers of Frederic William Maitland 307 (H. A. L. Fisher ed., 1911).Show More In Part I below, this Article exposes a contour of common law corporate personhood that has not previously been noted: incorporation was a status in which corporate legal persons existed in a hierarchical relationship with the public, akin to master-servant or parent-child.21 21.See discussion infra Part I.Show More The common law view of the corporation as a “child” or “servant” of the public justified more stringent state regulation of corporations than of individuals: the state was the benevolent parent, overseeing its corporate child to ensure the corporation acted in the public interest.22 22.William Novak discusses the extensive power of state legislatures to regulate in the “public interest” in William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 19–20 (1996).Show More

Yet as Part II discusses, throughout the nineteenth century, corporate lawyers challenged this view, arguing that corporations were not “children” who owed a special duty of obedience to the parental state but private, profit-making entities whose interests were unrelated or even potentially opposed to those of the public. In this view, the corporation was a naturally arising market phenomenon, akin to any other private market actor, with no special obligation to the public welfare.23 23.This has been called the “natural” or “real entity” theory of the corporation, that corporations are naturally emerging market entities controlled by their managers. See Avi-Yonah, supra note 9, at 1000–01; Blair, supra note 9, at 805; Pollman, supra note 9, at 1642; Arthur W. Machen, Jr., Corporate Personality, 24 Harv. L. Rev 253, 262 (1911).Show More In support of this argument, corporate lawyers reframed the corporation not as a group of individuals authorized to act as one “artificial,” “legal person” for certain purposes, but as solely an aggregation of constitutional-rights-bearing shareholders.24 24.This is called the “aggregate” or “associational” theory. See Horwitz, supra note 9, at 182; Mark, supra note 9, at 1462; Hovenkamp, supra note 9, at 1597–98; Pollman, supra note 9, at 1662. Morton Horwitz argues that the aggregate theory was short-lived because of the increasing separation of management and control and that the “entity” theory replaced the aggregate theory in the early twentieth century. Horwitz, supra note 9, at 182. However, Citizens United, Hobby Lobby, and other recent cases have invoked an aggregate view of the corporation to justify extending freedom of speech and religion to corporations. See Citizens United v. FEC, 558 U.S. 310, 356 (2010) (“Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (attributing the religious beliefs of the shareholders of a closely held corporation to the corporate entity itself). But see Avi-Yonah, supra note 9, at 1040 (arguing that “both the majority and the dissent [of Citizens United] adopted the real entity view of the corporation”). Actually, the Court tacked back and forth between different conceptions of corporate personality.Show More By framing the corporation simply as a collection of private, rights-bearing individuals, corporate lawyers were able to argue that the rights and duties of corporations were simply the rights and duties of the natural persons who composed them, and no more.25 25.See infra Part I.Show More

This debate over whether the corporation was a state creation granted legal personhood in certain contexts for the purpose of furthering the public interest, or simply a group of private, rights-bearing individuals pursuing their own economic gain, was central to the cases involving corporate Fourteenth Amendment rights. While Morton Horwitz, Gregory Mark, and others have shown that key to the Ninth Circuit’s reasoning in Santa Clara was a view of the corporation as an aggregate of shareholders,26 26.Horwitz, supra note 9, at 223; Mark, supra note 9, at 1464.Show More they have not examined the equally viable, alternative vision of the corporation as a “child of the state” presented by opposing counsel and reflected in public opinion. More importantly, they have overlooked the racial analogy underlying the precedents to Santa Clara on which the doctrine of corporate constitutional personhood was built.27 27.Mark and Horwitz have explained the reliance on the aggregate theory of corporate personhood as primarily rooted in property protection. Mark, supra note 9, at 1464; Horwitz, supra note 9, at 177.Show More This Article reveals the background and reasoning behind this significant judicial reframing of corporate personhood: the aggregate theory of the corporation allowed corporate lawyers and judges to analogize shareholders to racial minorities as similarly persecuted groups targeted by discriminatory legislation.

This analogy, of course, disregarded the immense power discrepancy between corporate shareholders and persecuted racial groups. By holding that the Equal Protection Clause applied to “the despised laborer from China” as much as the “envied master of millions,”28 28.The Railroad Tax Cases, 13 F. 722, 741 (C.C.D. Cal. 1882).Show More the Ninth Circuit endorsed an interpretation of the Amendment as treating all persons alike, regardless of their social and economic power. This reasoning bolstered a “formal equality” interpretation of the Fourteenth Amendment, in contrast to claims that the Amendment embodied a commitment to “substantive equality” or anti-subordination—part of a trend towards limiting the Amendment’s ability to address long-standing inequalities that continues today.29 29.“Substantive equality,” or “anti-subordination,” consists not only in eliminating discrimination but also in “alter[ing] the circumstances that are identified as giving rise to equality questions in the first place.” Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 11 (2011) [hereinafter MacKinnon, Substantive Equality]; see also Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 Ohio St. L.J. 1089, 1090 (2008) (contrasting a “formal equality” with an “anti-subordination” perspective); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1336 (1988) (contrasting “equality as a process” with “equality as a result”). For an extensive analysis of “formal” versus “substantive” concepts of equality, see generally Catharine A. MacKinnon, Sex Equality (2007) [hereinafter MacKinnon, Sex Equality].Show More

This is not a case of manipulation by corporate lawyers of disempowered minority litigants. Chinese litigants were willing partners in the strategy to join forces with corporations to expand the Fourteenth Amendment. As this Article reveals, the economic and social connections between industrial corporate magnates and the elite Chinese mercantile and political community were long-standing. Both relied financially on the continued immigration of Chinese laborers, and both had long been represented by the same corporate lawyers. They were also both the target of discriminatory regulations that aimed to simultaneously curb corporate power and stem Chinese immigration. The Fourteenth Amendment provided a valuable tool for corporate lawyers to advocate on behalf of both sets of clients. By eliding the difference between Chinese immigrants and shareholders in these interrelated lines of cases, corporate lawyers cemented an interpretation of equal protection that culminated in the success of the twin cases of Santa Clara and Yick Wo.

For years, scholars have pondered Chief Justice Morrison Waite’s famously blithe comment at the outset of oral argument in Santa Clara that the Justices did not wish to hear argument on whether the Fourteenth Amendment applied to corporations, as they were “all of [the] opinion that it does.”30 30.Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 396 (1886); see, e.g., Howard Jay Graham, The Waite Court and the Fourteenth Amendment, 17 Vand. L. Rev. 525, 530 (1964) (“Nowhere in the United States Reports are there to be found words more momentous or more baffling than these.”); Horwitz, supra note 9, at 173 (“[The decision] has always been puzzling and controversial”); Pollman, supra note 9, at 1644 n.92 (“[T]he unusual circumstances of this case have evoked skepticism and debate.”).Show More Gregory Mark has pointed out that Waite expressly avoided addressing the constitutional question and argued that his statement indicated that the Court merely intended to accept the argument that the corporate property in this case was protected as property of the shareholders.31 31.Mark, supra note 9, at 1464.Show More Elizabeth Pollman has also explained Waite’s statement as concerned with protecting the shareholders’ property interests.32 32.Pollman, supra note 9, at 1644–45.Show More Howard Graham, dismissing the claim as “dictum,” went so far as to contend that “the recording of this statement was a fluke––the Court reporter’s after-thought!”33 33.Graham, supra note 30, at 530.Show More Adam Winkler has likewise claimed that Waite never intended his quote to become part of the opinion, but that it was intentionally misrepresented in the case report by a perfidious court reporter.34 34.Winkler, supra note 8, at 153.Show More

J. Willard Hurst even posited that, given late nineteenth-century law’s general embrace of economic activity, extending the Fourteenth Amendment to corporations “provoked no significant contemporary controversy.”35 35.James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, at 68 (1970).Show More

This Article offers a novel interpretation of this puzzle. By reading Santa Clara in light of Yick Wo and the preceding line of corporate and Chinese Fourteenth Amendment cases, this Article illuminates the context of equal protection jurisprudence surrounding Waite’s enigmatic statement—specifically, the interplay between corporate personhood and race. As this Article reveals, the definition of equal protection that the Court adopted in Yick Wo had been developed in Ninth Circuit corporate and Chinese Fourteenth Amendment cases throughout the preceding decade and was central to the arguments of counsel in both Yick Wo and Santa Clara. By the time the Waite Court heard Santa Clara, the link between racial minorities and corporate shareholders had become well established in equal protection jurisprudence.36 36.Elizabeth Pollman notes the precedential effect of the Ninth Circuit’s equal protection jurisprudence but does not explore the explicit connections to race. Pollman, supra note 9, at 1644.Show More Although the Court announced its expanded interpretation of equal protection in Yick Wo rather than Santa Clara, its reasoning had long been applied equally to corporate litigants. This Article suggests that one reason why the Court declined to hear arguments on whether the Fourteenth Amendment protected corporations was because the combined precedent of Chinese and corporate cases had already established that it did.

The success of corporations at claiming constitutional rights has produced a forked legacy. Critics of Citizens United and Hobby Lobby have contended that corporate personhood has been used to trump the rights of individuals37 37.As Justice Ruth Bader Ginsburg argued in Hobby Lobby, the majority prioritized religious rights of employers over the reproductive rights of female employees. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 740 (2014) (Ginsburg, J., dissenting); see also Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, 26 Yale J.L. & Feminism 217 (2014).Show More and to subvert the democratic process.38 38.One outcome of Citizens United has arguably been to permit dark-money groups to sway elections. See Heather K. Gerken, The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903, 905 (2014); Danny Emmer, Shedding Light on “Dark Money”: The Heightened Risk of Foreign Influence Post-Citizens United, 20 Sw. J. Int’l L. 381, 382 (2014).Show More In contrast, supporters of the decisions have argued that corporations are collections of shareholders who do not lose their fundamental rights simply because they do business as a corporation.39 39.Citizens United v. FEC, 558 U.S. 310, 339–40 (2010); Hobby Lobby, 573 U.S. at 706–07; see, e.g., Richard A. Epstein, The Defeat of the Contraceptive Mandate in Hobby Lobby: Right Results, Wrong Reasons, 2014 Cato Sup. Ct. Rev. 35, 45; Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154, 162–63 (2014).Show More Yet even those who oppose corporate constitutional personhood must acknowledge the discomfiting reality that corporate rights litigation has been, and continues to be, an important means of expanding rights protections for natural persons. Today, corporations play an important role in protecting civil rights in other contexts, such as by bringing claims for racial discrimination on behalf of their members under the 1866 Civil Rights Act.40 40.42 U.S.C. § 1981(a). Because corporations are typically the contracting party in these cases, not the natural persons against which the actual discrimination is directed, under common law principles of contract law the corporation is the only “person” that has standing to sue. See infra note 342.Corporate litigation has also laid the groundwork for individual claims regarding religious freedom. Hobby Lobby has been invoked by smaller corporations, nonprofits, individuals, and partnerships claiming freedom of religion rights in similar contexts. See, e.g., Brief for Petitioners at 38 n.6, Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111); Reply Brief for Petitioners in Nos. 14-1418, 14-1453 & 14-1505, at 7–8, Zubik v. Burwell, 578 U.S. 403 (2016) (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191); Brief for Petitioners in Nos. 15-35, 15-105, 15-119 & 15-191, at 2, Zubik, 578 U.S. 403 (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191). The wealth and institutional knowledge of large corporations like Hobby Lobby and their lawyers make them ideally suited to pursue impact litigation that establishes precedent for non-corporate claims of religious freedom violations.Show More This does not mean we should rehabilitate constitutional-rights-bearing corporate persons; but we must admit that a blanket condemnation of corporate personhood ignores the important historical legacy of corporate rights litigation and the continued interconnection—even interdependency—of corporations and racial minorities.

The Article proceeds in three Parts. Part I addresses the common law vision of the corporation as both an aggregate of individuals and a “child of the state” with rights and duties different from those of natural persons and traces the continued viability of this vision throughout the period in which Santa Clara was decided. Part II concerns corporate challenges to this traditional view in Fourteenth Amendment litigation, examining the strategy of corporate lawyers’ and Ninth Circuit judges’ reliance on the aggregate theory of corporate personhood to analogize Chinese immigrants to corporate shareholders in order to support a broad reading of the Equal Protection Clause. Part III examines the background of Santa Clara and reveals how the meaning of equal protection established by the Chinese and corporate Fourteenth Amendment cases informed the Court’s ultimate rulings in Santa Clara and Yick Wo, laying the groundwork for modern equal protection doctrine today.

  1. * Postdoctoral Teaching Fellow, University of Chicago. Ph.D, University of Chicago; J.D., Harvard Law School. Many thanks to Amy Dru Stanley, Laura Weinrib, Alison LaCroix, Jonathan Levy, Ajay Mehrotra, Christopher Schmidt, Naomi Lamoreaux, Gregory Mark, Adam Winkler, Paul Kens, Nikolas Bowie, Naama Maor, Lael Weinberger, and the American Bar Foundation Doctoral Fellows Workshop (2018–2020) for their comments and insights. Thank you also to the editors of the Virginia Law Review for their deep engagement with this text, as well as their technical prowess. ↑
  2. 558 U.S. 310 (2010). ↑
  3. 573 U.S. 682 (2014). ↑
  4. In Citizens United, the Supreme Court struck down a federal law, 2 U.S.C. § 441b (2006), that banned direct corporate spending on political campaigns. 558 U.S. at 372. Citizens United was part of a long line of cases in which the Court had recognized the First Amendment rights of corporations, including: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (freedom of association); NAACP v. Button, 371 U.S. 415, 428–29 (1963) (freedom of expression and association); New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964) (freedom of speech and the press); and First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (campaign expenditures as political speech). Hobby Lobby concluded that corporations were “persons” under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1, and held that Health and Human Services regulations requiring employers to provide insurance that covered contraceptives unconstitutionally burdened closely held corporations’ exercise of religion. 573 U.S. at 736. ↑
  5. See Move to Amend, https://www.movetoamend.org/ [https://perma.cc/RH9L-2FZT] (last visited Aug. 19, 2020); United for the People, http://united4thepeople.org/ [https://perma.cc/XS9X-LZNR] (last visited Aug. 19, 2020). ↑
  6. United for the People, supra note 4; Move to Amend, supra note 4. See Joanna M. Meyer, The Real Error in Citizens United, 69 Wash. & Lee L. Rev. 2171, 2198 (2012). ↑
  7. H.R.J. Res. 48, 116th Cong. (2019) (proposing an amendment to the Constitution of the United States providing that the rights extended by the Constitution are the rights of natural persons only). Other bills introduced in both the House and the Senate have targeted specific constitutional rights, such as one “waiving the application of the first article of amendment to the political speech of corporations.” H.R.J. Res. 39, 116th Cong. (2019). See United for the People, http://united4thepeople.org/amendments/ (last visited Oct. 31, 2021) [https://perma.cc/QGU7-883U], for an up-to-date list of proposed amendments relating to corporate constitutional rights. ↑
  8.  See Move to Amend, https://move-to-amend.myshopify.com/collections/frontpage [https://perma.cc/8JVP-CYAD] (last visited Dec. 28, 2021). ↑
  9. For early cases debating the constitutional rights of corporations, see Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 63–64 (1809); Hope Insurance Co. of Providence v. Boardman, 9 U.S. (5 Cranch) 57, 58 (1809); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46–47 (1815); Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, 556 (1819); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Peters) 420, 421 (1837); and Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 43 U.S. (2 Howard) 497, 499 (1844). See also Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights, at xxi (2018) (describing how the country’s most powerful corporations have persistently tried to use the Constitution to evade unwanted government regulations); Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1680 (2015) (explaining how the Supreme Court was tasked with determining the applicability of constitutional provisions to corporations in an 1809 case involving the first Bank of the United States). ↑
  10.  Legal historians of corporate personhood have discussed corporate Fourteenth Amendment cases in some detail but have neglected the role that race played in the development of these cases. For representative writings on corporate personhood and constitutional rights, see Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173, 174 (1985); Blair & Pollman, supra note 8, at 1677; Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 Wis. L. Rev. 999, 1033–34; Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441, 1443 (1987); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640–41 (1988); David K. Millon, Theories of the Corporation, 1990 Duke L.J. 201, 205–07; Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629, 1630; Margaret M. Blair, Corporate Personhood and the Corporate Persona, 2013 U. Ill. L. Rev. 785, 796–97; Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment. 309, 310–12 (2015); Tamara R. Piety, Why Personhood Matters, 30 Const. Comment. 361, 362–63 (2015); Turkuler Isiksel, Corporations as Rights-Bearers, J. Pol. (forthcoming) (manuscript at 1–2) (on file with the author). ↑
  11. At the time, the Circuit Court for the District of California, where the cases discussed in this Article arose, was located in the federal circuit encompassing California and Oregon. This court exercised both original and appellate jurisdiction and was staffed by one Supreme Court Justice (Stephen Field), one circuit court judge (Lorenzo Sawyer), and one district court judge (Ogden Hoffman), any two of which could hear a case. Christian G. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851–1891, at 29–30 (1991). To avoid confusion, this Article follows contemporary scholarship that refers to these cases as occurring in the Ninth Circuit. Id. at 29; Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism 573 (1968); Winkler, supra note 8, at 153–54. However, this should not be confused with the modern-day U.S. Court of Appeals for the Ninth Circuit, which was not created until the federal appellate system was redesigned in 1891. Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753, 1826 (2003). ↑
  12. A growing area of scholarship explores the connections between corporations and race. See, e.g., Cheryl L. Wade, Attempting to Discuss Race in Business and Corporate Law Courses and Seminars, 77 St. John’s L. Rev. 901 (2003); Alfred Dennis Mathewson, Race in Ordinary Course: Utilizing the Racial Background in Antitrust and Corporate Law Courses, 23 St. John’s J. Legal Comment. 667, 685 (2008); Cheryl L. Wade, Introduction to Symposium on People of Color, Women, and the Public Corporation: The Sophistication of Discrimination, 79 St. John’s L. Rev. 887, 890 (2005); Thomas W. Joo, Corporate Hierarchy and Racial Justice, 79 St. John’s L. Rev. 955 (2005); Thomas W. Joo, Race, Corporate Law, and Shareholder Value, 54 J. Legal Ed. 351 (2004); Juliet E.K. Walker, White Corporate America: The New Arbiter of Race? in Constructing Corporate America: History, Politics, Culture, 246, 253, 260 (Kenneth Lipartito & David B. Sicilia eds., 2007). ↑
  13. 118 U.S. 394 (1886). ↑
  14. See Horwitz, supra note 9, at 173; Blair & Pollman, supra note 8, at 1694–95; Avi-Yonah, supra note 9, at 1033–34. ↑
  15. 118 U.S. 356 (1886). ↑
  16.  See 2 Encyclopedia of American Civil Rights and Liberties 482, 1055 (Kara E. Stooksbury, John M. Scheb, II & Otis H Stephens, Jr. eds., rev. and expanded ed. 2017); Peter Irons, Jim Crow’s Children: The Broken Promise of the Brown Decision 53 (2004); see also infra notes 327–35 (noting early civil rights cases citing Yick Wo). ↑
  17. Scholars have studied the connection between Fourteenth Amendment claims of Chinese immigrants and the Supreme Court’s desire to protect economic rights. See Thomas Wuil Joo, New “Conspiracy Theory” of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354–55 (1995); Thomas W. Joo, Yick Wo Re-Revisited: Nonblack Nonwhites and Fourteenth Amendment History, 2008 U. Ill. L. Rev. 1427, 1428; Charles McClain, Jr., In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America 83 (1994); Graham, supra note 10, at 15; Daniel W. Levy, Classical Lawyers and the Southern Pacific Railroad, 9 W. Legal Hist. 177, 211, 216 (1996); Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age 209 (1997); Winkler, supra note 8, at 153. However, no prior scholarship has specifically examined the intersection of Fourteenth Amendment claims by corporations and by Chinese immigrants. ↑
  18. See In re Ah Fong, 1 F. Cas. 213, 213 (C.C.D. Cal. 1874) (No. 102); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 252 (C.C.D. Cal. 1879) (No. 6,546); In re Ah Chong, 2 F. 733, 737 (C.C.D. Cal. 1880); In re Tiburcio Parrott, 1 F. 481, 482 (C.C.D. Cal. 1880); The Railroad Tax Cases, 13 F. 722, 727 (C.C.D. Cal. 1882); In re Quong Woo, 13 F. 229, 233 (C.C.D. Cal. 1882); County of Santa Clara v. S. Pac. R.R. Co., 18 F. 385, 386, 397 (C.C.D. Cal. 1883), aff’d, 118 U.S. 394 (1886); In re Yick Wo, 9 P. 139, 139 (Cal. 1885), rev’d sub nom. Yick Wo v. Hopkins, 118 U.S. 356 (1886); In re Wo Lee, 26 F. 471, 475 (C.C.D. Cal. 1886). ↑
  19. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80–81 (1873). ↑
  20. The social and political connections of Chinese “coolies” with railroad and mining corporations in the context of Greater Reconstruction debates over the meaning of “free labor” and “equality” are explored in Evelyn Atkinson, Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment, 10 J. Civ. War Era 54 (2020). ↑
  21. See John Dewey, The Historic Background of Corporate Legal Personality, 35 Yale L.J. 655, 656 (1926); 3 The Collected Papers of Frederic William Maitland 307 (H. A. L. Fisher ed., 1911). ↑
  22. See discussion infra Part I. ↑
  23. William Novak discusses the extensive power of state legislatures to regulate in the “public interest” in William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 19–20 (1996). ↑
  24. This has been called the “natural” or “real entity” theory of the corporation, that corporations are naturally emerging market entities controlled by their managers. See Avi-Yonah, supra note 9, at 1000–01; Blair, supra note 9, at 805; Pollman, supra note 9, at 1642; Arthur W. Machen, Jr., Corporate Personality, 24 Harv. L. Rev 253, 262 (1911). ↑
  25. This is called the “aggregate” or “associational” theory. See Horwitz, supra note 9, at 182; Mark, supra note 9, at 1462; Hovenkamp, supra note 9, at 1597–98; Pollman, supra note 9, at 1662. Morton Horwitz argues that the aggregate theory was short-lived because of the increasing separation of management and control and that the “entity” theory replaced the aggregate theory in the early twentieth century. Horwitz, supra note 9, at 182. However, Citizens United, Hobby Lobby, and other recent cases have invoked an aggregate view of the corporation to justify extending freedom of speech and religion to corporations. See Citizens United v. FEC, 558 U.S. 310, 356 (2010) (“Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (attributing the religious beliefs of the shareholders of a closely held corporation to the corporate entity itself). But see Avi-Yonah, supra note 9, at 1040 (arguing that “both the majority and the dissent [of Citizens United] adopted the real entity view of the corporation”). Actually, the Court tacked back and forth between different conceptions of corporate personality. ↑
  26. See infra Part I. ↑
  27. Horwitz, supra note 9, at 223; Mark, supra note 9, at 1464. ↑
  28. Mark and Horwitz have explained the reliance on the aggregate theory of corporate personhood as primarily rooted in property protection. Mark, supra note 9, at 1464; Horwitz, supra note 9, at 177. ↑
  29. The Railroad Tax Cases, 13 F. 722, 741 (C.C.D. Cal. 1882). ↑
  30.  “Substantive equality,” or “anti-subordination,” consists not only in eliminating discrimination but also in “alter[ing] the circumstances that are identified as giving rise to equality questions in the first place.” Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 11 (2011) [hereinafter MacKinnon, Substantive Equality]; see also Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 Ohio St. L.J. 1089, 1090 (2008) (contrasting a “formal equality” with an “anti-subordination” perspective); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1336 (1988) (contrasting “equality as a process” with “equality as a result”). For an extensive analysis of “formal” versus “substantive” concepts of equality, see generally Catharine A. MacKinnon, Sex Equality (2007) [hereinafter MacKinnon, Sex Equality]. ↑
  31. Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 396 (1886); see, e.g., Howard Jay Graham, The Waite Court and the Fourteenth Amendment, 17 Vand. L. Rev. 525, 530 (1964) (“Nowhere in the United States Reports are there to be found words more momentous or more baffling than these.”); Horwitz, supra note 9, at 173 (“[The decision] has always been puzzling and controversial”); Pollman, supra note 9, at 1644 n.92 (“[T]he unusual circumstances of this case have evoked skepticism and debate.”). ↑
  32. Mark, supra note 9, at 1464. ↑
  33. Pollman, supra note 9, at 1644–45. ↑
  34. Graham, supra note 30, at 530. ↑
  35. Winkler, supra note 8, at 153. ↑
  36. James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, at 68 (1970). ↑
  37. Elizabeth Pollman notes the precedential effect of the Ninth Circuit’s equal protection jurisprudence but does not explore the explicit connections to race. Pollman, supra note 9, at 1644. ↑
  38. As Justice Ruth Bader Ginsburg argued in Hobby Lobby, the majority prioritized religious rights of employers over the reproductive rights of female employees. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 740 (2014) (Ginsburg, J., dissenting); see also Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, 26 Yale J.L. & Feminism 217 (2014). ↑
  39. One outcome of Citizens United has arguably been to permit dark-money groups to sway elections. See Heather K. Gerken, The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903, 905 (2014); Danny Emmer, Shedding Light on “Dark Money”: The Heightened Risk of Foreign Influence Post-Citizens United, 20 Sw. J. Int’l L. 381, 382 (2014). ↑
  40. Citizens United v. FEC, 558 U.S. 310, 339–40 (2010); Hobby Lobby, 573 U.S. at 706–07; see, e.g., Richard A. Epstein, The Defeat of the Contraceptive Mandate in Hobby Lobby: Right Results, Wrong Reasons, 2014 Cato Sup. Ct. Rev. 35, 45; Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154, 162–63 (2014). ↑

  41. 42 U.S.C. § 1981(a). Because corporations are typically the contracting party in these cases, not the natural persons against which the actual discrimination is directed, under common law principles of contract law the corporation is the only “person” that has standing to sue. See infra note 342.

    Corporate litigation has also laid the groundwork for individual claims regarding religious freedom. Hobby Lobby has been invoked by smaller corporations, nonprofits, individuals, and partnerships claiming freedom of religion rights in similar contexts. See, e.g., Brief for Petitioners at 38 n.6, Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111); Reply Brief for Petitioners in Nos. 14-1418, 14-1453 & 14-1505, at 7–8, Zubik v. Burwell, 578 U.S. 403 (2016) (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191); Brief for Petitioners in Nos. 15-35, 15-105, 15-119 & 15-191, at 2, Zubik, 578 U.S. 403 (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191). The wealth and institutional knowledge of large corporations like Hobby Lobby and their lawyers make them ideally suited to pursue impact litigation that establishes precedent for non-corporate claims of religious freedom violations. ↑

The Original Meaning of “Due Process of Law” in the Fifth Amendment

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Introduction

There are two Due Process of Law Clauses in the United States Constitution. The first is found in the Fifth Amendment:

No person shall be . . . deprived of life, liberty, or property, without due process of law.1 1.U.S. Const. amend. XIV, § 1 (emphasis added).Show More

The second Due Process of Law Clause is found in Section One of the Fourteenth Amendment:

No State shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.2 2.Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”).Show More

The conventional wisdom is that the Fifth Amendment applies only to the federal (national) government; the Fourteenth Amendment applies to the states.

This Article is about the original meaning of the Fifth Amendment Due Process of Law Clause; our findings may be relevant to the meaning of the very similar language of the Fourteenth Amendment, but they may not—the meaning of “due process of law” might have changed between 1791 and 1868.

The original meaning of the Fifth Amendment Due Process of Law Clause is surprising. The contemporary understanding of the phrase is ambiguous and contested, encompassing two distinct but related theories of its meaning. The first of these theories, the “Fair Procedures Theory,” is that “due process of law” means legal procedures that are fair (procedurally just). The fairness view is reflected in International Shoe Co. v. Washington’s idea of “fair play and substantial justice” and many other cases.3 3.By “contemporary positive law,” we mean the law that was in effect at the time the alleged rights violation occurred.Show More

The second account of the Due Process of Law Clause, the “Legal Procedures Theory,” holds that the phrase means procedures that are required and/or permitted by positive law. This second theory comes in two variants. The first variant requires that the procedures comply with contemporary positive law4 4.Justice Black articulated this view in his dissenting opinion in International Shoe,326 U.S. at 324–25 (Black, J., dissenting), and his concurrence in In re Gault, 387 U.S. 1, 62 (1967) (Black, J., concurring) (“The phrase ‘due process of law’ has through the years evolved as the successor in purpose and meaning to the words ‘law of the land’ in Magna Charta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offense had been committed.”).Show More—this variant is associated with Justice Hugo Black.5 5.Justice Scalia’s articulation of his view is not stated clearly and with precision. See Burnham v. Superior Ct., 495 U.S. 604, 610–11 (1990) (identifying 1868 as the crucial date for the meaning of the Due Process of Law Clause).Show More The second variant requires that the procedures comply with the positive law at the time the Fifth Amendment was framed and ratified, roughly 1791—this version of the Legal Procedures Theory is associated with Justice Antonin Scalia.6 6.Process, OED Online, https://www.oed.com/view/Entry/151794 [https://perma.cc/MY5V​-Z5BL] (last visited Oct. 7, 2021).Show More None of these views are correct from an originalist perspective.

Instead, the original meaning of the Fifth Amendment Due Process of Law Clause is captured by a third theory, which we call the “Process Theory.” The phrase “due process of law” had a very precise and restricted meaning: the Clause is limited to legally required “process” in what is today a narrow and technical sense of that word.

The key to understanding the Process Theory is the word “process.” That word is ambiguous. One sense of the word “process” today is very abstract and general. In this sense, the word “process” can refer to a variety of phenomena, including chemical processes, mechanical processes, and legal procedures of any kind. This is the sense specified by the Oxford English Dictionary (“OED”) as the eighth (and most common) definition of the noun form of the word “process”:

A continuous and regular action or succession of actions occurring or performed in a definite manner, and having a particular result or outcome; a sustained operation or series of operations.7 7.Id.Show More

But the word “process” has today and had in 1791 a very specific and precise meaning. We can begin to get at that meaning of process via the “b” variant of the fifth definition in the OED:

The formal commencement of any legal action; the mandate, summons, or writ by which a person or thing is brought into court for litigation.8 8.3 William Blackstone, Commentaries *279 (footnote omitted).Show More

Of course, this narrow meaning is familiar to all American lawyers: this is the sense of the word “process” as it is used in the phrase “service of process.” Process is a formal document that provides a person notice of legal obligation, such as the obligation of a defendant in a civil action to appear at trial (at the risk of default for nonappearance). Process can also grant authority, such as the authority to arrest an individual or to seize their home.

The Process Theory of the meaning of the Fifth Amendment Due Process of Law Clause maintains that the Clause requires that deprivations of life, liberty, or property must be preceded by process of law in this narrow and technical legal sense. In other words, a criminal defendant may not be deprived of life or liberty without first either personal service of process or some legally valid alternative such as service by publication in a narrow category of cases. Similarly, civil defendants may not be subject to a damage award or judgment depriving them of property without legally valid process. In this sense, the Fifth Amendment Due Process of Law Clause ensures notice and jurisdiction.

There are other implications of the Clause as well. “Due process of law” encompasses “original process,” the service of process that is required by Rule 4 of the Federal Rules of Civil Procedure, but it also includes mesne and final process. Here is Blackstone’s summary:

The next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like. Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.9 9.U.S. Const. amend. IX.Show More

The core idea of the Process Theory is that “due process of law” means legal process in the technical sense that is approximated by Blackstone’s discussion—i.e., formal documents, generally issuing from a court, that impose legal obligations or rights. Absent such process, the Clause prohibits any deprivation of certain essential rights (life, liberty, or property) by a government actor. Put another way, the Due Process of Law Clause requires that the executive secure the judiciary’s approval before depriving an individual of their rights. The Clause therefore prohibits arbitrary deprivations and furthers separation of powers principles. The Fifth Amendment’s Due Process of Law Clause does not extend to all legal procedures; for example, it does not include trial by jury, pleadings, summary judgment, discovery, and many other legal procedures that are not “process.” Nor does the Clause require that procedures be fair.

We do not mean to say that the constitutional doctrines presently derived from the Fifth Amendment Due Process of Law Clause are necessarily unsupported by the constitutional text. From an originalist perspective, there may be other constitutional provisions that are relevant. For example, even if the Clause does not specify the timing or form of hearings that must be provided by the federal government, the Sixth and Seventh Amendments guarantee a right to a jury trial. The Fifth Amendment Due Process of Law Clause would not support unenumerated rights under the rubric of “substantive due process,” but the Ninth Amendment provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,”10 10.Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev 1, 80 (2006).Show More and originalist scholars have argued that this provision does protect unenumerated rights against the federal government.11 11.59 U.S. (18 How.) 272 (1856).Show More None of these protections, however, are located in the Fifth Amendment’s Due Process of Law Clause.

In sum, starting with Murray v. Hoboken Land & Improvement Co.12 12.326 U.S. 310 (1945).Show More and proceeding through contemporary Fifth Amendment Due Process of Law Clause doctrine, including International Shoe,13 13.424 U.S. 319 (1976).Show More Mathews v. Eldridge,14 14.See infra Part IV.Show More and dozens of other cases, the whole corpus of due process of law doctrine is inconsistent with the original meaning of the Fifth Amendment Due Process of Law Clause. In other words, the living constitutionalist construction of the Due Process of Law Clause is inconsistent with its original meaning. So, too, are some of the most important originalist interpretations, which extend the meaning of “process” to all legal procedures.

This suggests that “due process of law” has undergone linguistic drift—its meaning has changed since the First Congress proposed it for ratification. This Article does not tell the story of how the meaning changed; instead, we are focused on the meaning as it existed in 1791, when the language of the Due Process of Law Clause was ratified. We do have important things to say about developments in the nineteenth century,15 15.326 U.S. at 316.Show More but we will not purport to settle questions about the meaning of “due process of law” in the Fourteenth Amendment. And we do not offer an account of the emergence of the conflation of “due process” with “fair process” or the development of the Supreme Court’s substantive due process jurisprudence.

We are mindful that the Process Theory has normatively significant implications for Fifth Amendment Due Process of Law Clause doctrine. Recall that the Process Theory is limited to the Fifth Amendment and hence that its implications only extend to actions by the federal government. Examples of Fourteenth Amendment doctrines that are conventionally understood to extend to the national government include:

  • The minimum contacts approach to personal jurisdiction articulated in International Shoe.16 16.424 U.S. at 334–35.Show More
  • Procedural due process doctrines that regulate the form and timing of hearings and trials, including the balancing approach of Mathews v. Eldridge.17 17.381 U.S. 479, 484 (1965).Show More
  • Substantive due process rights, including the right to privacy articulated in Griswold v. Connecticut18 18.410 U.S. 113, 152–53 (1973).Show More and extended in Roe v. Wade19 19.See infra text accompanying note 23.Show More to the right to choice with respect to abortion.

Because our analysis is limited to federal action, it has no direct implications for any of these decisions as they apply to state governments.

From an originalist perspective, the meaning of the Fifth Amendment Due Process of Law Clause does not depend on a normative assessment of the consequences that would flow from its original public meaning. For originalists, the role of normative assessment occurs at a more general level of analysis. Thus, originalists argue that constitutional actors should be bound by the original public meaning of all the Constitution’s provisions; originalists reject the idea that judges can amend the Constitution when they believe that good consequences would result. This idea is expressed in the Constraint Principle, which is stated below.20 20.See infra Section V.C.Show More

We recognize that living constitutionalists reject the Constraint Principle and therefore believe that the Supreme Court ought to have the power to adopt amending constructions of the Constitution in order to achieve good outcomes. That belief is not limited to the Fifth Amendment Due Process of Law Clause; it extends in principle to every constitutional provision. Nonetheless, at least some living constitutionalists may believe that the original public meaning of the constitutional text is relevant to constitutional interpretation and construction—an idea we discuss below.footnote_id_22_21

Here is the roadmap. Part I situates our project in the context of originalist constitutional theory. Part II explicates three fundamental phrases: “due process of law,” “due course of law,” and the “law of the land.” Part III provides the first half of our case for the Process Theory via an examination of the meaning of “due process of law” before the framing and ratification of the Fifth Amendment. The second half of that case is provided in Part IV, which surveys developments during and after the ratification of the Fifth Amendment. Part V addresses unanswered questions and implications of our findings. We conclude with a summary and some speculations about the consequences that might follow if judges were to pay serious attention to the original meaning of the Fifth Amendment Due Process of Law Clause.

  1. U.S. Const. amend. V (emphasis added). ↑
  2. U.S. Const. amend. XIV, § 1 (emphasis added). ↑
  3. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”). ↑
  4. By “contemporary positive law,” we mean the law that was in effect at the time the alleged rights violation occurred. ↑
  5. Justice Black articulated this view in his dissenting opinion in International Shoe, 326 U.S. at 324–25 (Black, J., dissenting), and his concurrence in In re Gault, 387 U.S. 1, 62 (1967) (Black, J., concurring) (“The phrase ‘due process of law’ has through the years evolved as the successor in purpose and meaning to the words ‘law of the land’ in Magna Charta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offense had been committed.”). ↑
  6. Justice Scalia’s articulation of his view is not stated clearly and with precision. See Burnham v. Superior Ct., 495 U.S. 604, 610–11 (1990) (identifying 1868 as the crucial date for the meaning of the Due Process of Law Clause). ↑
  7. Process, OED Online, https://www.oed.com/view/Entry/151794 [https://perma.cc/MY5V​-Z5BL] (last visited Oct. 7, 2021). ↑
  8. Id. ↑
  9. 3 William Blackstone, Commentaries *279 (footnote omitted). ↑
  10. U.S. Const. amend. IX. ↑
  11. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev 1, 80 (2006). ↑
  12. 59 U.S. (18 How.) 272 (1856). ↑
  13. 326 U.S. 310 (1945). ↑
  14. 424 U.S. 319 (1976). ↑
  15. See infra Part IV. ↑
  16. 326 U.S. at 316. ↑
  17. 424 U.S. at 334–35. ↑
  18. 381 U.S. 479, 484 (1965). ↑
  19. 410 U.S. 113, 152–53 (1973). ↑
  20. See infra text accompanying note 23. ↑

  21. See infra Section V.C. ↑

Equal Speech Protection

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Introduction

The First Amendment’s hierarchy of protection for different types of speech is a myth. The doctrine has long purported to place political speech at the highest and most protected position in this hierarchy, followed by commercial speech and speech on purely private matters, with “low-value” speech like obscenity and fighting words on its bottom rung.1 1.I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)).Show More This basic hierarchy, however, is a doctrinal fiction. As a theory, it does not accurately describe how the First Amendment protects speech; as a doctrine, it does not guide the Supreme Court’s application of free speech law. The true but hidden framework of modern free speech law is one of equal speech protection. Through a holistic reevaluation of the Supreme Court’s free speech jurisprudence, this Article reveals that the First Amendment grants different types of speech comparable levels of protection and that this level of protection is altogether quite moderate—including for political speech. The most salient and startling consequence of exposing the hierarchy as a myth, therefore, is to uncover the constitutionality of restricting dangerous political speech to safeguard important public interests—namely, the protection of democratic governance.

The widely accepted view that political speech garners an exceptionally high level of constitutional protection is flawed in two ways. First, political speech does not enjoy an especially robust level of protection from state interference. The vast majority of political speech is routinely subject to significant government regulation or enjoys no First Amendment protection at all—this includes political speech on public and most private property, election speech, expressive political conduct, political speech crimes, and the speech of millions of government employees, students, and prisoners on matters of public importance. Second, the First Amendment does not protect political speech to a greater degree than it does non-political speech like cultural, commercial, or “low-value” speech. Rather, all speech receives essentially equal protection, notwithstanding judicial platitudes to the contrary.

This equal level of protection that all speech receives is best described as “moderate.” It permits, in effect, courts to moderate speech rights to preserve democratic interests. From a doctrinal standpoint, moderate protection looks a lot like intermediate scrutiny applied to all speech. But “intermediate” does not quite capture what the Supreme Court is doing when it extends moderate protection to speech. The Court is not simply charting a middle road between strict scrutiny and rational basis review, nor is it conducting a pure balancing inquiry or employing proportionality review to speech regulations. Instead, it is applying a unique, substantive standard that permits reasonable limits on speech that are necessary for democracy to function. Under this substantive standard, the Court largely defers to the government on whether a regulation is reasonable and focuses, implicitly, on whether it is necessary to protect democratic governance. This inquiry takes two forms: it can focus on safeguarding effective governance or it can focus on protecting democratic participation. The first requires subordinating speech rights to public order and safety; the latter requires doing so to ensure a healthy and informed public discourse. The result is a doctrine that equally permits regulations on any type of speech for these purposes, in direct contradiction to the hierarchical model of speech protection nominally embraced by the Court throughout its First Amendment caselaw.

The hierarchy of speech protection is no more than a doctrinal myth. The concept of myth is integral to understanding the hierarchy model. Myths are widely held beliefs that are, at once, invented traditions and fictitious narratives.2 2.See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine).Show More The hierarchy of speech protection embodies both elements of myth: it was invented out of whole cloth late in the development of free speech jurisprudence and has since persisted as a false narrative about how the First Amendment protects speech. Like most myths, the hierarchy is real and not real; it is pretend in that it does not control the outcome of cases, but it is powerful in that it continues to propagate widely held, but mistaken, assumptions about free speech law.3 3.See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”).Show More

This acoustic separation between myth and law has reached a critical juncture. The digital age has transformed large swaths of human behavior into speech, bringing more and more activity within the First Amendment’s protective sphere and shading distinctions between types of speech. At the same time, the quantity of social and political speech that poses serious risks to democracy, the economy, and a just society has exploded. These developments demand regulations on speech, and yet the hierarchy of speech protection claims to immunize just such speech from regulation. Exposing the hierarchy as a doctrinal myth that does not reflect the law or theory of free speech protection thus illuminates the constitutional paths forward for regulating speech that risks serious social, political, and commercial harms.

Unmasking this myth has particular ramifications for the regulation of political speech. For decades the Supreme Court has perpetuated the narrative that there is a gradation of speech protection and that political speech receives the utmost protection from state interference. But its rhetoric does not match its holdings. A close examination of the protection afforded to political speech, both in the absolute and relative to other types of speech, shows that this supposed cornerstone of First Amendment law is more smoke and mirror than substantive rule. Indeed, the ruse that political speech receives near-absolute protection is perhaps the greatest misdirection accomplished by the hierarchy myth. In reality, political speech receives a moderate level of judicial protection, equal to that received by all other types of speech.

This tradition of extending equal and moderate protection to all speech works well by allowing the Court to moderate free speech rights in the interest of protecting democratic governance. But its potential is under-realized and increasingly at risk because it remains hidden behind the myth of the hierarchy of speech protection. By dismantling the myth, scholars, legislators, and judges alike can begin to reconceptualize the limits, and the possibilities, of speech regulations—including and especially political speech regulations. The advantages of doing so are manifold: it would put on the table some presumed off-the-wall restrictions on false and malicious political speech,4 4.424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A.Show More and it would serve to democratize speech protection by encouraging legislatures to claim a greater share of the governing responsibility for protecting free speech.

This Article lays bare the hierarchy myth through a comprehensive retelling of the Supreme Court’s free speech jurisprudence. It explains why the hierarchy was invented, why it did not take hold doctrinally, and why it has nonetheless persisted rhetorically. In brief, the Court invented the hierarchy in two steps over a pair of cases in 1976: Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.5 5.The reasons undergirding the hierarchy’s invention are discussed infra Section I.A.Show More First, in Buckley, the Court shifted the role of political speech as core to the First Amendment to a new position as the highest value of the Amendment. Then, in Virginia Pharmacy, the Court established a counterposing point on this newly conceived spectrum of speech by extending a supposedly lower level of protection to commercial speech. What appeared in these cases as small rhetorical steps actually represented a massive doctrinal leap.

The reason for this move inheres in the subject matter of the two cases in which it appears. Buckley and Virginia Pharmacy extended First Amendment protection to campaign financing and to commercial speech, respectively, and represented a tipping point in the post-New Deal explosion of First Amendment coverage. Prior to these cases, the Court did not purport to extend different levels of protection to different types of protected speech. But the Court had spent the last forty years increasingly expanding equal First Amendment protection to speech beyond core political speech—both by deepening coverage to semi-political speech and widening coverage to other types of speech—so that by 1976 the doctrine was sinking under its own weight and deeply in need of an organizing framework. It was in this novel context that the Court wholesale invented a hierarchy of speech protection, ordered according to the speech’s First Amendment value, out of what had been a diverse pool of equally protected speech representing various First Amendment values.6 6.See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech).Show More

Lacking historical basis and in tension with other foundational principles of free speech law, the hierarchy failed to take root and guide the doctrine. Since its invention, the Supreme Court has continued to extend a quite equal level of protection to all covered speech. This equalization of speech protection results from two overriding trends: first, the Court has continued to grant political speech mostly moderate, not absolute, protection, permitting ample government regulation to facilitate the safe exchange of political ideas. In recent decades, the Court has reliably reaffirmed, or in some cases even lessened, this moderate level of protection for political speech, contrary to prevailing criticisms.7 7.A full explanation of these two trends follows infra Sections I.B and I.C.Show More Second, the Court has consistently elevated protection for non-political speech to the same level as protection for political speech immediately or soon after recognizing that speech as covered by the First Amendment.8 8.As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning.Show More

These two trends—maintaining moderate protection for political speech and extending the same level of protection to non-political speech—are themselves the inevitable consequence of applying the patchwork of core doctrines that comprise First Amendment law. These doctrines consist of a series of safety valves that funnel most political speech restrictions to regulation-accommodating corners of the jurisprudential landscape, as well as a series of neutral principles that resist drawing distinctions between types of speech.9 9.See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015).Show More Together, these doctrines exert simultaneous pressure to ratchet down protection for political speech and ratchet up protection for non-political speech to the same level, all but ensuring that a hierarchy of speech protection could never fully develop.

Scholars have previously pinpointed the 1970s as the moment in which free speech doctrine became distorted in a number of significant ways. For example, scholars have identified how the free speech cases of that decade transformed the doctrine into one that vindicates corporate speech rights, undermines economic regulations, and subordinates the interests of citizens.10 10.See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015).Show More This Article identifies another doctrinal innovation that occurred in this period: the Court’s invention of a hierarchy of speech protection and the ultimate failure of this new framework to guide free speech law. This Article thus exposes the fallacy in the doctrinal truism that political speech garners especially high protection, both in the absolute and relative to other types of speech.

In so doing, this Article resituates the current scholarship on the Court’s recent appetite for overturning commercial regulations under the First Amendment—a trend commonly termed the “Lochnerization” of the First Amendment. The origins and consequences of this trend have been widely discussed in recent years, almost entirely through a critical lens.11 11.See infra Subsection I.C.1.Show More This Article offers a novel understanding of how Lochnerization actually fits quite neatly, and in some ways beneficially, within the far larger trend of maintaining equal speech protection amongst varying types of speech. Where the Lochnerization sub-genre of First Amendment critique has focused narrowly on the doctrinal developments (or distortions) of commercial speech law, this Article makes clear that First Amendment Lochnerization is actually one piece of a larger doctrinal framework that blurs distinctions between types of speech and renders restrictions on all speech subject to moderate judicial protection. Specifically, Lochnerization is one speech protection equalization tool among many that functions as a means of ratcheting up protection for commercial speech to the same level of protection enjoyed by all other types of speech.12 12.See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).Show More

Finally, unlike the overwhelming majority of recent literature on the trajectory of First Amendment doctrine,13 13.See infra Section II.B.Show More the doctrinal manipulation this Article identifies has the potential to be normatively valuable. Recognizing that the hierarchy of speech protection and its attendant truism that political speech garners near-absolute protection are doctrinal myths clarifies the constitutionality of speech regulations aimed at protecting a safe and healthy political discourse. It also excavates the robust, but hidden, tradition of moderate and equal speech protection, which this Article argues serves as a unifying “social democratic theory” of free speech law.14 14.See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment).Show More

But it is important from the beginning to sharpen this Article’s assertion that the hierarchy of speech protection is a myth. The myth I describe is a doctrinal myth—it is a legal principle that operates rhetorically rather than analytically, meaning it has little descriptive value for explaining the landscape of speech protection and little influence on how the Supreme Court decides free speech cases. This is not to say that the myth does not do any work. Most myths persist precisely because they have social, political, and psychological power. The myth of the hierarchy of speech protection is no different. It has bolstered the Court’s power and reputation as a guardian of speech rights and fostered a deeply ingrained legal and popular culture of speech tolerance that shapes law and policy decisions in legislatures and boardrooms every day.15 15.First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text.Show More The myth serves the Court and free speech advocates and is also embraced by progressive scholars attempting in good faith to stem the constitutional inoculation of commercial activity from regulation. As this Article shows, however, the hierarchy myth is self-defeating and precisely the wrong doctrinal framework to accomplish progressive constitutional ends.

This Article also does not suggest that all speech regulations are equally permissible. Viewpoint- and content-based regulations, for example, are roundly prohibited. But such laws are equally prohibited regardless of the underlying type of speech at issue. These rules are therefore orthogonal to this Article’s central observation that all speech—political and non-political alike—receives equal protection from regulation. While there are only a few ways government may not regulate any type of speech, there are many ways it can regulate all types of speech. In declaring the hierarchy of speech protection a myth, this Article is chiefly concerned with showing that, as a holistic framework for understanding speech protection under the First Amendment, the hierarchy is an invented tradition disguising a reality of routine government supervision of speech boundaries.

Part I provides a descriptive account of the invention of the hierarchy myth and its lack of substantive force in shaping the doctrine since its creation. Section I.A briefly chronicles the post-New Deal trajectory of First Amendment expansionism from the 1930s through the mid-1970s and shows the absence of gradations in the level of protection afforded to covered speech in this period.16 16.See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018).Show More The remainder of Part I then details how the newly invented tradition of a hierarchy of speech protection never amounted to anything more than a doctrinal truism. It documents how all types of speech are treated at essentially an equal, moderate level of protection. First, Section I.B catalogues the numerous ways the doctrine regularly, and uncontroversially, permits restrictions on political speech that are necessary for democratic government to function. It illuminates that most political speech is actually highly regulable under this standard, directly refuting a core tenet of the hierarchy framework that political speech garners strict constitutional protection. Section I.C then shows how the hierarchy of speech protection is also false for purporting to provide sequentially lesser protection to non-political speech. It explains that most non-political speech garners the same level of protection as political speech under various speech-specific doctrines and generally applicable rules of free speech law that have the effect of ratcheting up protection for non-political speech above what the rhetoric of the hierarchy otherwise suggests. Finally, Section I.D offers possible explanations for why the hierarchy myth has persisted and what consequences it has had on speech protection.

Part II takes up the normative question of whether an equal speech protection doctrine is desirable. It posits that equalizing speech protection—and equalizing it at a level that permits significant though specific legislative control over speech—is ultimately beneficial for maintaining a healthy speech environment and thus a healthy democracy. An equal speech framework is superior to any purported hierarchy of speech model for essentially two reasons, discussed in Sections II.A and II.B respectively. First, there is little practical or constitutional difference between political and non-political speech, making any attempt to distinguish speech by type a doomed and unwise task. Second, acknowledging that political speech is, and should be, afforded a moderate level of protection will foster a more democratic, egalitarian, and resilient First Amendment. It would invite legal reforms aimed at safeguarding the stability and vitality of our public discourse, including reforms addressing the proliferation of disinformation and toxic speech.

Recent scholarship has gone far to document the undemocratic and inegalitarian effects of current First Amendment doctrine17 17.Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B.Show More but has struggled to identify a constitutionally compelling alternative.footnote_id_19_18 This Article does just that by focusing on reinterpreting the doctrine, as opposed to reinventing it. Properly understood, our current free speech doctrine is one of equal speech protection; and properly applied, this doctrine has enormous potential to produce egalitarian outcomes in which the vast majority of average citizens’ public discourse and democratic participation is affirmatively protected by legislatures from interference and manipulation. Thus, while doctrinal recitations by courts and commentators have long described a hierarchy of greater and lesser protected speech under the First Amendment, I show, by exposing its historical invention and its negligible impact on actual judicial decisions, how the hierarchical First Amendment is a sham. Instead, in origin, purpose, and application, the First Amendment prescribes equal treatment of varied kinds of speech, and making this clear can sharpen and improve advocacy, decisions, and responses to calls for reform.

  1. Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring in part and dissenting in part) (“This Court’s cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.”); Rucho v. Common Cause, 139 S. Ct. 2484, 2514 (2019) (Kagan, J., dissenting) (“[The First] Amendment gives its greatest protection to political beliefs, speech, and association.”); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (placing criticism of government officials “high in the hierarchy of First Amendment values”); Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)); Holder v. Humanitarian L. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.” (emphasis omitted)); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly ‘unprotected,’ it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech.” (emphasis omitted)); Connick v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . .”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976) (holding that the differences between commercial speech and “other varieties” of speech mean “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“The First Amendment affords the broadest protection to such political expression . . . .”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971) (“[The First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). ↑
  2. I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)). ↑
  3. See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine). ↑
  4. See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”). ↑
  5. 424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A. ↑
  6. The reasons undergirding the hierarchy’s invention are discussed infra Section I.A. ↑
  7. See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech). ↑
  8. A full explanation of these two trends follows infra Sections I.B and I.C. ↑
  9. As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning. ↑
  10. See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015). ↑
  11. See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015). ↑
  12. See infra Subsection I.C.1. ↑
  13. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). ↑
  14. See infra Section II.B. ↑
  15. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment). ↑
  16. First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text. ↑
  17. See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018). ↑

  18. Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B. ↑

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