Corporations, Property, Sovereignty: The Colonial Origins of the American Corporation
Recent Supreme Court cases like Citizens United v. FEC and Burwell v. Hobby Lobby have reignited debates about the place and power of corporations in contemporary society. How did the modern corporation begin securing the constitutional and legal protections it enjoys in the U.S.? Much of the extant literature subsumes the historical emergence of the modern corporation under looming accounts of the nineteenth century rise of liberal capitalism. In prevailing understanding, landmark cases like Dartmouth v. Woodward were reflective of a Marshall Court extending the Contract Clause to advance economic freedoms. By contrast, this project examines the settler colonial and revolutionary origins of the modern corporation. Drawing on archival research alongside secondary sources, I examine the landmark case of Dartmouth alongside Fletcher v. Peck, Martin v. Hunter's Lessee, and Johnson v. M’Intosh. I show, through interpretations of American theorists like Thomas Jefferson and Thomas Paine, how the American Revolution inspired four major competing visions regarding the legal status of colonial charters and the continuing dispossession of Native Americans by corporate forms after the American Revolution.
I in turn detail how the vision of Federalists like John Marshall would win out. I argue that this was a vision pre-eminently concerned with ensuring the continuity of colonial charters from the British Empire and centralizing the coordination of westward expansion under the federal government. The extension of the Contract Clause to corporate charters in Dartmouth was one step in the longer attempt by the Marshall Court to pursue their imperial vision against competing claims to property and sovereignty in North America. In the final instance, the Marshall Court would concomitantly extend legal protections to corporate forms even as they curtailed the rights of Native Americans. The account I trace accentuates how reigning histories and theories of the corporation continue to overlook or dismiss their entanglements in settler colonial and revolutionary processes. I ultimately contend that the legal emergence of the modern corporation in the U.S. cannot be fully understood without these broader contexts. Dartmouth was the legal beginning of what I argue is a primary attribute of the modern corporation: insulating property from state accountability or popular movements. By conclusion, I explore how this revisionist account of the legal beginnings of the modern corporation helps us re-theorize the corporate form in the wake of recent cases like Citizens United and Hobby Lobby.