corporation J Hurst The Legitimacy of the Business Corporation in the Law of

Corporation j hurst the legitimacy of the business

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corporation.” J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, pp. 15–16 (1970) (reprint 2004). Corporations were cre- ated, supervised, and conceptualized as quasi-public enti- ties, “designed to serve a social function for the state.” Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was “as- sumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature be- cause their purposes had to be made consistent with pub- lic welfare.” R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982). The individualized charter mode of incorporation re- flected the “cloud of disfavor under which corporations labored” in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee , 288 U. S. 517, 548–549 (1933) (Brandeis, J., dissenting) (discussing fears of the “evils” of business corporations); L. Friedman, A History of American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly recurs in debates over corpora- tions. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Thomas Jeffer- son famously fretted that corporations would subvert the Republic. 54 General incorporation statutes, and wide- spread acceptance of business corporations as socially useful actors, did not emerge until the 1800’s. See Hans- mann & Kraakman, The End of History for Corporate Law, 89 Geo. L. J. 439, 440 (2001) (hereinafter Hansmann & Kraakman) (“[A]ll general business corporation statutes appear to date from well after 1800”). —————— 54 See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816), in 12 The Works of Thomas Jefferson 42, 44 (P. Ford ed. 1905) (“I hope we shall . . . crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country”).
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37 Cite as: 558 U. S. ____ (2010) Opinion of S TEVENS , J. The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individ- ual Americans that they had in mind. 55 While individuals might join together to exercise their speech rights, busi- ness corporations, at least, were plainly not seen as facili- tating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,” given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.” Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trus- tees of Dartmouth College v. Woodward , 4 Wheat. 518, 636 —————— 55 In normal usage then, as now, the term “speech” referred to oral communications by individuals.
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