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43 J. Sup. Ct. Hist. 237 (2018)
Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations

handle is hein.journals/jspcth43 and id is 243 raw text is: Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations ADAM WINKLER Introduction Recent decisions by the Supreme Court of the United States in Citizens United v. Federal Election Commission, holding that corporations have a First Amendment right to spend money to influence elections, and Burwell v. Hobby Lobby Stores, Inc., permit- ting corporations to assert religious liberty rights under a federal law, have brought the issue of rights for corporations into the public consciousness. The rise of corporate constitutional rights is usually traced to an 1886 case, Santa Clara County v. Southern Pacific Railroad, which is often cited for establishing that corporations are persons under the Constitution. While the story of the Southern Pacific's case is highly entertaining -involving an illustrious lawyer who deceived the Justices and a misleading headnote that claimed the Court had decided issues it had not-Santa Clara County was hardly the first Supreme Court case to address the constitutional rights of corporations. That honor belongs to another case decided almost eighty years earlier, Bank ofthe United States v. Deveaux, and corporate personhood played little role.' Although still cited from time to time for other issues, Bank of the United States v. Deveaux is one of the neglected landmarks of American constitutional law. The explicit question addressed in the case was whether business corporations had constitutional protections-namely, the right to sue in federal court on grounds of diversity under Article III. While there is little evidence the Framers ever intended the Constitution to apply to business entities, Chief Justice John Marshall's opinion for the Court broadly construed the text to cover corporations. Marshall did not say that corporations were

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