Corporate Personhood and the Right to Political Corporeality

Corporations powerfully shape access to "political corporeality"—the ability of non-corporate collectives to challenge the corporate prerogatives of liability, profit-seeking, and resource extraction.

“We the People,” as the Preamble of the U.S. Constitution declares, are simultaneously sovereigns and subjects, a multitude of individuals that govern as a unified collective. Of course, despite its inescapable centrality to the American national project, social and political access to the category of personhood has never been a straightforward or settled matter. The question of who counted as a legal person, and especially the question of how one’s legal personhood could be rendered as legible and actionable, had been vigorously contested long before 1776—and both questions remain deeply fraught 250 years later.

Personhood was overtly bounded in the Constitution in 1788 by the delineation of slaves (“those bound to Service for a Term of Years”) as “three fifths of all other Persons,” in order to preserve Southern political privilege without extending the full privileges of citizenship to Black slaves. As James Madison wrote in Federalist No. 54: “We must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property … The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character.” Such exclusion-based definitions of personhood, and the long fight to expand them across multiple categories including race and gender, are prominent features in mainstream U.S. political and historical discourse.

Yet here, I want to highlight a particular category of personhood that has evolved in a stealthier yet no less foundational form in American history: corporate personhood. Though the legal notion of corporations as juridical persons has deep roots in early modern European law, I trace two features of corporate personhood in the U.S. context: 1) the legal empowerment by the Supreme Court of business corporations as political actors with political rights, and 2) the emergence of defense contractors as a distinct class of corporate actors that have actively remade the practice of state sovereignty through insulation from liability. Corporations do not simply confound the well-known binary categories of governmental vs. corporate power, political vs. economic power, public vs. private spheres, and domestic vs. foreign spheres. Instead, corporations have functioned as the hinges operationalizing these distinctions. Further, through their pursuit of legal and political privileges to conduct business, I suggest that corporations continue to powerfully shape access to what I call the right to political corporeality—namely, the ability of non-corporate collectives to meaningfully challenge the corporate prerogatives of liability, profit-seeking, and resource extraction.

The Body Politic, Incorporated

The word “corporation” in our contemporary moment tends to evoke a particular assemblage of political imagery: large multinational companies, economic globalization, neoliberal capitalism, labor unions, and union-busting organizations. Corporations now are almost exclusively thought of as publicly-traded, privately-profiting entities that operate at an industrial and global scale. However, corporations have existed in varying configurations since the Roman Empire, as trading companies, monarchical charters, and sovereign grants. Especially in their medieval and early-modern European iterations, corporations represented what political theorist Joshua Barkan calls a “specifically liberal and decentralized” mode of sovereignty. “Corporations are fictions, created by states, but given such social power that they threaten to undermine the political sovereignty that created them,” argues Barkan. Corporations are one means by which states “attempt to marshal the collective power of individuals toward public ends by granting them a special legal status.” Therefore, as Barkan puts it, “corporate power should be rethought as a mode of political sovereignty.” Corporations and states have historically modeled each other’s defining features: nation-states have taken on corporate management techniques and embraced values such as market efficiency, while corporations have mobilized to build infrastructure, provide municipal services such as schools and hospitals, and conducted international diplomacy. Political and corporate governance can thus be thought of as co-constitutive rather than separate or adversarial modalities of power.

Indeed, though the U.S. Constitution is usually considered a social contract, political scientist David Ciepley argues that it is better understood as a “popularly issued corporate charter—an innovative but logical step in the tradition of sovereigns delegating governing authority by corporate charter.” The three components Ciepley identifies as essential to American constitutionalism—popular sovereignty, a written constitution, and judicial review—were in fact derived from seventeenth- and eighteenth-century corporate precedents. After all, as Ciepley points out, the two most politically significant and influential American colonies, Virginia and Massachusetts, “began as literal corporations,” as the Virginia Company and the Massachusetts Bay Company: “To catalyze modern, American-style constitutional government, only their chartering sovereign had to be changed (although more was changed than this).”

Reframing the Constitution in terms of a corporate charter is useful in locating the definitional character of corporations as a genre of political collectivity. To incorporate is to be given a body, a corporeal form—as indeed the Constitution does, incorporating “We the People” as both sides of the contract, the promisers as well as the promises of “Justice,” “Tranquility,” “the common defense,” “general Welfare,” and the “Blessings of Liberty.” This framing also illuminates the political stakes of corporate power: corporations, as collectives, have gained legal recognition of rights in the United States that empower their juridical persons in ways that violently supersede and suppress the rights of non-corporate individual and collective human persons. Four Supreme Court cases—from 1809, 1886, 2010, and 2014—together offer a glimpse into the broad arc of how American corporate personhood has evolved from the nineteenth to the twenty-first century.

Bank of the United States v. Deveaux (1809) was the first time the Court was asked to explicitly determine whether business corporations had access to constitutional protections—in this instance, to the right to sue in federal court on the grounds of diversity under Article III. As legal historian Adam Winkler shows, Chief Justice John Marshall’s majority opinion did not affirm corporate personhood outright; but the ruling’s conception of a corporation as an association of people “would prove far more influential” in “justifying the expansion of individual rights to corporations over the next two centuries.” Business corporations are fictional entities, not flesh-and-blood humans; but the corporation, under Bank of the United States, could have rights derived from those of its constituent members.

Santa Clara County v. Southern Pacific Railroad Co. (1886) most significantly addressed (or, rather, declined to address) whether corporations were included in the Fourteenth Amendment right of citizenship and equal protection under the law. The case’s scope encompassed several interlocking developments in the immediate wake of the Civil War, as legal historian Evelyn Atkinson explicates: heated debates about the role of government in regulating profitable, federally-subsidized railroad monopolies, the social responsibilities of private companies, new general incorporation statutes that offered broader individual access to incorporation status, and of course, the scope and limits of the post-war Constitutional amendments enshrining the expanded legal personhood of former slaves. The Court’s unanimous decision in favor of the railroads did not substantively engage the question of Fourteenth Amendment protections. Instead, a headnote written by the Reporter of Decisions and approved by Chief Justice Morrison Waite explicitly declined to hear arguments on whether the Amendment applied, because “all of the Judges were of the opinion that it does.” This backdoor precedent, amending one of the most robust articulations of legal personhood in American history, was then cited wholesale in future Court decisions—enshrining the right to equal legal protection for business corporations without meaningful debate. Writes Atkinson: “Corporate lawyers quickly realized that an expansive interpretation of the Fourteenth Amendment would benefit their corporate clients as well.”

These nineteenth century decisions were more or less upheld in their conceptual assumptions throughout the twentieth century, albeit to a complex multitude of ends. For example, Atkinson points out the role of corporate rights litigation in combating racial discrimination. But more often, modern business corporations have leveraged access to constitutional protections to strike down progressive economic reforms that benefited workers and organized labor. As a result, by the early twenty-first century, corporations have come to weaponize First Amendment rights to free speech and religious freedom in ways that curb individual and non-corporate collective exercises of those same rights.

Citizens United v. Federal Election Commission (2010), decided in a controversial 5-4 ruling, affirmed a conservative nonprofit organization’s right to spend its money on political fundraising, contrary to century-long precedents restricting corporate and union lobbying on behalf of political campaigns. By rendering political spending limits as First Amendment violations, Justice Anthony Kennedy’s majority opinion equated capital to speech—which has empowered super PACs and “dark money” to flood the American electoral system. Four years later, the Court’s similarly contentious 5-4 ruling in Burwell v. Hobby Lobby Stores, Inc. (2014) exempted privately-held, for-profit companies from federal regulations to which owners object on religious grounds. This case, which concerned mandated contraception coverage under the Affordable Care Act, did not only extend First Amendment rights to corporate persons. It also indirectly lent legal cover to the politico-legal movement for fetal personhood, which contends that life begins at conception and, in its most extreme interpretation, criminalizes reproductive health care.

Both Citizens United and Hobby Lobby were widely criticized for, in the words of a 2014 statement by the Brennan Center for Justice, “once again [advancing] the personhood rights of some corporations to the detriment of actual human beings.” But corporate “persons” in the United States have access to more than expanding individual constitutional rights. As I demonstrate in the following section, corporations—more than individual citizens or any other kind of non-corporate collective—are able to make unique claims to sovereign status, which can shield them from accountability, transparency, and ultimately, responsibility for the consequences of their “personal” actions. Nowhere is this relation more vividly exemplified than in the case of U.S. defense contractors.

Sovereign Immunity, Incorporated

Modern U.S. defense contracting developed as a bureaucratic mechanism for industrial-scale military procurement of aircraft, weaponry, and raw materials during the Second World War. Throughout the Cold War, the “military-industrial complex” (as it was termed by President Eisenhower in 1961) continued to develop and produce increasingly sophisticated military technology of critical strategic value, while functioning as domestic engines of local and regional economic growth. Preceding and then dovetailing with the broader “neoliberal turn” of the 1970s and 1980s, outsourcing of governmental services across sectors through privatization became common practice. The twenty-first century, however, brought a sea change in the scale of defense contracting and public spending. The Bush administration’s Global War on Terror triggered a military sector bonanza that marshaled so many private contractors across infrastructure construction, research and development, technology and communications services, and military logistics that not even the Secretary of Defense could keep an accurate count of them. The Iraq and Afghanistan Wars were the most privatized in U.S. history, with a contractor-to-soldier ratio on the ground in both countries reaching and sometimes exceeding 1:1. Contemporary “Big Tech” giants such as Google and Palantir also benefited handsomely from this massive investment of public resources into national security.

Though precise numbers can be difficult to come by, the Costs of War Project estimates that from 2001 through 2022, U.S. post-9/11 war spending amounts to about $8 trillion total. Between 2020 and 2024—a period during which the U.S. was not formally declared to be at war with any nation—policy analysts William Hartung and Stephen Semler calculatethat 54% of the Pentagon’s discretionary spending budget of $4.4 trillion went to military contractors, with $771 billion going to just five firms (Lockheed Martin, RTX/Raytheon, Boeing, General Dynamics, and Northrop Grumman).

Defense contractors seem ostensibly to occupy a niche among corporations for this institutional proximity to the military and the outsized U.S. defense budget. Private security contractors in particular gained notorious reputations as modern mercenaries, war profiteers, and obstacles to diplomacy during the Iraq War. Yet, that seemingly exceptional positionality of defense contractors is what makes them useful in mapping the outer limits and thus capacious possibilities of corporate power. As profit-driven businesses that often depend on government financing outright, or as a result of large government purchases, defense contractors can function as hybrid public-private entities capable of raising enough capital to invest in complex technological research and development. As government contractors, they can undertake functions of governance as delegates on the state’s behalf without being subject to the same regulations or standards of public disclosure. And, as important players in the national security sphere, the U.S. government and military have an especially vested interest in helping defense contractors succeed—an interest that defense contractors have leveraged to pioneer novel forms of liability protection.

One form of liability protection came through legislative means that quickly congealed into political and legal precedent. In 1971, Lockheed was the first private corporation to receive a federal bail-out through the Emergency Loan Guarantee Act to rescue it from bankruptcy with $250 million in bank loans. In heated Congressional debates, Lockheed’s skeptics accused it of poor management and argued that it should declare bankruptcy like any other failing company. Yet Lockheed’s supporters, such as Sen. Alan Cranston (D-CA), argued that the U.S. government had “considerable responsibility” for helping a company that answered “a call to arms to help equip the national for national defense.” The controversial 49-48 Senate vote to bail out Lockheed was championed by President Nixon as a measure “in the best interests of all the people,” on the grounds that it would save thousands of jobs and preserve a key strategic supplier. The bail-out was arguably a landmark progenitor for the “too big to fail” doctrine that later helped justify the 2008 Emergency Economic Stabilization Act, which bailed out auto industry corporations along with banks and credit institutions. The precedent set by Lockheed as a defense contractor allowed corporations of large-enough size to be able to claim that their financial well-being was so essential to the health of the nation that they deserved infusions of public capital to continue existing in their current form.

A second, possibly even more consequential form of corporate liability protection has been the legal doctrine of derivative sovereign immunity. The Supreme Court established precedent in Yearsley v. W. A. Ross Construction Co. (1940), a case in which petitioners sought damages for land erosion as a result of a government-contracted construction company building dikes in the Missouri River. The Court ruled that contractors carrying out work “authorized and directed by governmental officers” could not be held liable for “executing [the Government’s] will.” In other words, as long as contractors were acting on governmental authority within the scope of a Congressionally-valid contract, they were legally shielded by sovereign immunity, i.e., the common law doctrine under which the U.S. federal and state governments cannot be sued except under specific circumstances.

The Yearsley case’s understanding of derivative sovereign immunity mostly held over the course of the twentieth century. A 1988 Supreme Court case, Boyle v. United Technologies Corp., complemented Yearsley, ruling that wherever state law conflicted significantly with federal policy in “an area of uniquely federal interest,” the federal contractor could not be held liable under state law. But in the twenty-first century—arguably due to the dramatically increased role and visibility of federal contracting in contemporary American governance—several high-profile court cases tested the legal bounds of sovereign immunity for corporations under government contracts.

Recent decisions in Al Shimari v. CACI (2026), Hencely v. Fluor Corp. (2026), and GEO Group, Inc. v. Menocal (2026) denied blanket, preemptive immunity claims from major U.S. government contractors. Corporations cannot entirely preempt torts liability, even in a war zone, nor can they immediately appeal a district court’s denials of derivative sovereign immunity. However, a decade of protracted litigation against the Army logistics contractor KBR for exposing thousands of U.S. veterans and civilian contractors to toxic smoke from burn pits in Iraq and Afghanistan set another precedent in 2019. In that case, the Court of Appeals and the Supreme Court ultimately ruled that because KBR operated its burn pits under U.S. military direction, the company was shielded by both derivative sovereign immunity and the political question doctrine. On the whole, even with nuancing restrictions, corporate persons retain the right to functionally act as federal sovereigns in order to avoid legal challenges from individual persons, and even from state governments and lower courts.

The expansive nature of the “sovereign shield” presents serious normative ramifications for what legal scholars Kate Sablosky Elengold and Jonathan Glater call the “delicate balance among the executive branch, the legislative branch, states, corporations, and consumers.” Private contractors and the federal executive branch, Elengold and Glater argue, symbiotically empower each other to circumvent torts exposure, legislative oversight, and regulatory regimes. Both parties benefit from outsourcing labor and dodging public transparency imperatives; and “these sly, sideways moves reduce the powers of individuals and states out of sight of public scrutiny or democratic accountability.” Put another way: derivative sovereign immunity allows corporations to fundamentally reorient the practice of political sovereignty in the United States, thus further granting corporate persons with legal technologies of governance beyond what individuals and non-corporate collectivities have been able to access.

The Right to Political Corporeality

The long legal and historical arc of corporate personhood in the United States is of course more textured and complex than this brief essay can address. Similarly, the myriad implications of corporate personhood on the present and future of American politics is beyond my current scope. By way of conclusion, however, I posit that corporate personhood is in part so potent as legal doctrine because it successfully establishes a right to political corporeality—a prerogative to imbue its collective body with rights of action (and sometimes inaction) that exceed the sum of its constituent parts. Corporations are not and have never been the only kind of associational vehicle available to human persons. Yet, as the rights of technology companies to build profitable data centers threatens to supersede the rights of low-income communities’ to clean water, and as the rights of the U.S. defense industry to export profitable weapons technology to Israel continues to supersede the rights of Palestinians to exist—the imperative to organize effective, life-affirming counter-collectives becomes that much more urgent.