미국의 기업들은 어떻게 시민권에 준하는 헌법적 기본권을 확보하였나? ― 수정조항 14조와 미국 법인인격권의 탄생 ―

Tirelessly navigating the constraints posed by the early United States’ decentralized system of defining rights, American business corporations soon focused their efforts on attaining constitutional protection from state government’s regulations. Corporations ultimately succeeded in this bid by exploiting the constitutional transformation spurred by the Civil War. The Fourteenth Amendment, in particular, established national citizenship mainly to protect the rights of freed slaves, but ended up serving the interests of big corporations rather than African Americans. During the late nineteenth century, the supreme court established two important doctrines that together vastly expanded federal protection of corporate rights, one enshrining freedom of contract as a constitutional right protected by the Fourteenth Amendment’s due process clause, and the other confirming that corporations are persons under the amendment’s protection of rights. Accounting for this paradoxical development ultimately leads to a reappraisal of the nineteenth-century U.S. constitutional system itself. Over the nineteenth century, American society became increasingly reliant on the supreme court’s authority, rather than the democratic processes of legislation or constitutional amendment, in resolving thorny constitutional issues. That tendency afforded private legal actors wide room for strategic maneuver especially when they could adroitly exploit the court-centered system with the help of superior legal expertise, as was the case with big corporations. Born out of this system, corporate personhood in the United States did not simply confer citizenship rights on corporations; in fact corporations, under the doctrine, were given privileged protection as citizens of the federal state, while the vast majority of ordinary citizens including African Americans remained under the authority of state-level police power.