To resolve Fourth Amendment ambiguities, the Supreme Court has increasingly turned to the common law in place at the Founding. The mishandling and destruction of colonists’ personal property by British soldiers acting pursuant to general warrants and writs of assistance helped to spur the Revolutionary War. This Note’s second contribution applies Founding-era evidence to consent search doctrine. By drawing on colonial records, this Note offers an originalist argument for restraining consent searches.

Introduction

Just before daybreak on March 31, 2011, ten law enforcement officials arrived at the Chicago apartment where Jai Crutcher and Christopher Colbert, brothers by adoption, lived with their families.¹ 1.Colbert v. City of Chicago, 851 F.3d 649, 652 (7th Cir. 2017); id. at 661 (Hamilton, J., concurring in part and dissenting in part).Show More The officers told Crutcher they were there to conduct a parole check, and Crutcher consented to the search.² 2.Id. at 652 & n.1 (majority opinion) (“The terms of Crutcher’s release required him to ‘refrain from possessing a firearm or other dangerous weapon,’ ‘consent to a search of [his] person, property, or residence under [his] control,’ and ‘comply with any additional conditions the Prisoner Review Board has or may set as a condition of [his] parole or mandatory supervised release including, but not limited to: ELECTRONIC MONITORING FOR DURATION.’” (alterations in original)).Show More As the police moved through the house, their search quickly turned destructive. In testimony that Judge David Hamilton of the U.S. Court of Appeals for the Seventh Circuit called “disturbing,” the brothers described “the fright of their children as officers broke holes in the walls, cut open a couch, [and] tore doors off of cabinets.”³ 3.Id. at 661 (Hamilton, J., dissenting in part). Both the majority and dissenting opinions recounted the facts in the light most favorable to the plaintiffs because the case was on appeal from a grant of summary judgment for the defendants. Id. at 654 (majority opinion); id. at 661 (Hamilton, J., dissenting in part). Therefore, the account of property damage recited here came from the plaintiffs’ perspective. In the officers’ depositions, they “claimed they did not remember many of the events of March 31, 2011.” Id. at 662.Show More In total, the officers damaged, dismantled, or destroyed: a weight bench, clothing, the basement door, the stairs, bedroom dressers, an electronic tablet, a stereo, a television, photographs of Crutcher’s grandmother, wall insulation, a kitchen countertop, and shelf hinges.⁴ 4.Id. at 661, n.1 (Hamilton, J., dissenting in part); id. at 652–53 (majority opinion).Show More The officers tracked dog feces through the house during their search.⁵ 5.Id. at 652 (majority opinion).Show More One officer allegedly “unholstered his firearm and threatened to shoot Crutcher’s six-week-old puppy before leaving the dog outside, where it was lost.”⁶ 6.Id. at 661 (Hamilton, J., dissenting in part).Show More Crutcher and Colbert subsequently brought a § 1983 civil rights suit against the City of Chicago and four individual officers for violating their Fourth Amendment rights.⁷ 7.Id. at 653–54, 656 (majority opinion).Show More The district court dismissed the complaint, the Seventh Circuit affirmed, and the brothers were left to foot the bill.⁸ 8.Id. at 654, 661. Most courts have held that harms like these do not violate the Takings Clause or related provisions of state constitutions, making this Note’s proposal all the more important. See Lech v. Jackson, 791 Fed. App’x. 711, 719 (10th Cir. 2019); see also Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 394–95 (2018) (describing several instances in which the government compensated property owners for police-inflicted damage).Show More

Whether, or how, property damage should affect the reasonableness of a consent search has divided the lower courts. In some jurisdictions, property damage has no effect on the legality of a consent search or potential remedies. In other jurisdictions, when police damage property, a search that began with the owner’s permission becomes per se unreasonable. In still others, officers may damage property so long as they do not render it unusable. Drawing on Founding-era evidence and the common law, this Note argues that mishandling and destroying property during consent searches would have been anathema to the Constitution’s Framers. This Note is the first to use the Fourth Amendment’s history to answer whether consent searches are constitutional when they involve property damage. Academics and advocates have frequently attacked the lax “voluntariness” requirement of consent searches, and they rightly note that many individuals agree to invasive searches without knowing they have the right to refuse.⁹ 9.See, e.g., James C. McGlinchy, Note, “Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches, 104 Va. L. Rev. 301, 303 (2018); Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 237, 245 (2007); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1661–62 (2012).Show More But the scope of consent searches is just as important and is more likely to be taken up by the Supreme Court.¹⁰ 10.While the Supreme Court has explicitly rejected a requirement that consent be given knowingly or intelligently, the Court has said relatively little about the scope of consent searches. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In addition, Justices on the Court today often find government overreach when private property is concerned. See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (holding that a California regulation giving union organizers access to farm workers constitutes a per se physical taking); Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (concluding that a federal eviction moratorium intruded on property owners’ right to exclude).Show More

Part I introduces consent searches, explaining their significance and situating them in Fourth Amendment doctrine. Part II describes how different circuits have addressed the question of property damage during consent searches and dissects their underlying reasoning. Part III uses Founding-era evidence to advocate limitations on consent searches. Part III also offers a workable test—one in accord with the primacy of property rights during the Founding—for identifying property damage that exceeds the scope of consent searches. Finally, Part IV anticipates and responds to objections.

1. Colbert v. City of Chicago, 851 F.3d 649, 652 (7th Cir. 2017); id. at 661 (Hamilton, J., concurring in part and dissenting in part). ↑
2. Id. at 652 & n.1 (majority opinion) (“The terms of Crutcher’s release required him to ‘refrain from possessing a firearm or other dangerous weapon,’ ‘consent to a search of [his] person, property, or residence under [his] control,’ and ‘comply with any additional conditions the Prisoner Review Board has or may set as a condition of [his] parole or mandatory supervised release including, but not limited to: ELECTRONIC MONITORING FOR DURATION.’” (alterations in original)). ↑
3. Id. at 661 (Hamilton, J., dissenting in part). Both the majority and dissenting opinions recounted the facts in the light most favorable to the plaintiffs because the case was on appeal from a grant of summary judgment for the defendants. Id. at 654 (majority opinion); id. at 661 (Hamilton, J., dissenting in part). Therefore, the account of property damage recited here came from the plaintiffs’ perspective. In the officers’ depositions, they “claimed they did not remember many of the events of March 31, 2011.” Id. at 662. ↑
4. Id. at 661, n.1 (Hamilton, J., dissenting in part); id. at 652–53 (majority opinion). ↑
5. Id. at 652 (majority opinion). ↑
6. Id. at 661 (Hamilton, J., dissenting in part). ↑
7. Id. at 653–54, 656 (majority opinion). ↑
8. Id. at 654, 661. Most courts have held that harms like these do not violate the Takings Clause or related provisions of state constitutions, making this Note’s proposal all the more important. See Lech v. Jackson, 791 Fed. App’x. 711, 719 (10th Cir. 2019); see also Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 394–95 (2018) (describing several instances in which the government compensated property owners for police-inflicted damage). ↑
9. See, e.g., James C. McGlinchy, Note, “Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches, 104 Va. L. Rev. 301, 303 (2018); Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 237, 245 (2007); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1661–62 (2012). ↑

10. While the Supreme Court has explicitly rejected a requirement that consent be given knowingly or intelligently, the Court has said relatively little about the scope of consent searches. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In addition, Justices on the Court today often find government overreach when private property is concerned. See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (holding that a California regulation giving union organizers access to farm workers constitutes a per se physical taking); Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (concluding that a federal eviction moratorium intruded on property owners’ right to exclude). ↑

The post Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches first appeared on Virginia Law Review.

This Note tests that historical claim, and in doing so, offers two main contributions. First, it concludes that as a historical matter, Justice Gorsuch tells only part of the story. Although early vagueness doctrine in the late 1800s had strong streaks of nondelegation, vagueness doctrine of the post-New Deal era did not. The latter vagueness instead turned toward protecting individual rights and preventing racial discrimination by state and local governments. Here, nondelegation concerns were absent.

But the Roberts Court has rebooted the early vagueness doctrine that did indeed incorporate nondelegation. Modern vagueness cases thus resemble early vagueness cases. In these cases, absent are questions of individual rights, replaced by a focus on the separation of powers. In effect, there are two vagueness doctrines, one focused on individual rights and another centered around the separation of powers. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

“[O]nce we lift the veil of the void-for-vagueness doctrine, the revelations can be far reaching.”¹ 1.Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights, 62 Stan. L. Rev. 1361, 1387 (2010).Show More

Introduction

Suppose Congress enacts a statute that reads as follows: “Any person engaging in morally blameworthy conduct or lacking good moral character shall be punished as provided by this Code.” Is this statute unconstitutional? If so, why? Is it because of the void-for-vagueness doctrine, under which vague criminal laws violate the Constitution’s due process protections? Or is it because of the nondelegation doctrine, under which Congress cannot delegate its Article I legislative power to the executive and judicial branches through unintelligible statutes?

Or is it both?

In three recent U.S. Supreme Court cases, decided within a year of each other, these two relatively dormant doctrines—vagueness and nondelegation—simultaneously reemerged. In United States v. Davis² 2.139 S. Ct. 2319, 2336 (2019).Show More and Sessions v. Dimaya,³ 3.138 S. Ct. 1204, 1223 (2018).Show More the Court struck down provisions in the federal criminal code as void for vagueness, while in Gundy v. United States, the Court addressed a nondelegation challenge to Congress’s delegation of authority to the Attorney General.⁴ 4.139 S. Ct. 2116, 2122 (2019).Show More

At first glance, vagueness and nondelegation appear more different than alike. The Court has located the nondelegation doctrine in the Constitution’s “Vesting Clauses”—the Article I, Article II, and Article III provisions which vest the legislative, executive, and judicial powers in their respective branches—while vagueness doctrine has its roots in fair notice concerns and the Due Process Clauses. Vagueness’s most prominent application has been in cases involving state and local vagrancy offenses and status crimes, while the nondelegation doctrine has been employed in largely conservative-libertarian projects aimed to rein in the ever-expanding administrative and regulatory state.

Despite these differences, the two doctrines share an intuitive connection: when legislatures draft vague statutes, they delegate lawmaking authority to other branches of government. The Court gave expression to this link in Dimaya, Davis, and Gundy, describing the two doctrines using starkly similar vocabulary and shedding light on their interrelatedness. In Dimaya, Justice Kagan referred to vagueness as the “corollary” of the separation of powers that undergirds the nondelegation doctrine.⁵ 5.Dimaya, 138 S. Ct. at 1212.Show More In his Dimaya dissent, Justice Thomas noted that the “Court’s precedents have occasionally described the vagueness doctrine in terms of nondelegation.”⁶ 6.Id.at 1248 (Thomas, J., dissenting).Show More Most notably, in Gundy, Justice Gorsuch argued that “most any challenge to a legislative delegation can be reframed as a vagueness complaint,” and that the Court’s “void-for-vagueness cases became much more common soon after the Court began relaxing its approach to legislative delegations.”⁷ 7.Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting).Show More That is, as the Court backed away from using the nondelegation doctrine to police Congress’s delegation of its legislative power in the second half of the twentieth century, the Court began using vagueness to do the work that nondelegation would have done otherwise.

This Note picks up on the thread that Justice Gorsuch started in Gundy and explores the relationship between vagueness and nondelegation. In so doing, this Note offers two main contributions.

First, it concludes that as a historical matter, Justice Gorsuch’s claim about vagueness replacing nondelegation tells only part of the story. The Note looks to pre- and post-New Deal doctrinal development of both vagueness and nondelegation to conclude that while the doctrines have some overlap, Justice Gorsuch overstated their connection. The Court’s vagueness cases from the late 1800s, the early days of the doctrine, did indeed police legislative delegations. But the cases that came after 1937 did not. The Court instead began using vagueness to protect individual rights like free speech. It also wielded vagueness to protect racial minorities from invidious discrimination by state and local police. In these post-New Deal vagueness cases, federal nondelegation concerns were largely absent. This version of vagueness did not replace the nondelegation doctrine, which the Court largely discarded.

Still, the Roberts Court picked up where the early vagueness cases left off; nondelegation again entered the realm of vagueness. In modern vagueness cases, concerns of individual rights and free speech are absent. Also absent are issues of invidious racial discrimination. These cases instead emphasize the proper constitutional role of Congress, the executive, and the judiciary within the federal separation of powers. To the extent that the Court and Justice Gorsuch see an overlap between vagueness and nondelegation, it is this line of cases that they see.

In effect, there are two vagueness doctrines. One comprises the majority of the Court’s vagueness cases after the New Deal era, including the landmark case Papachristou v. City of Jacksonville. The second has its origins in the earliest vagueness cases. And although this latter doctrine subsided after 1937, the Court has revived it in recent cases like Dimaya and Davis.

This Note categorizes the Court’s vagueness cases into (1) Rights-Based Vagueness and (2) Structure-Based Vagueness. Although both categories of cases involve due process concerns, they diverge from there. Cases like Papachristou, and their emphasis on individual rights and equal protection, comprise Rights-Based Vagueness. In contrast, Structure-Based Vagueness is the vagueness that the Court employs in Dimaya, Davis, and Gundy. In these latter cases, the Court emphasizes nondelegation and the separation of powers. To the extent that vagueness and nondelegation converge, it is in the context of Structure-Based Vagueness. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

Recognizing Structure-Based Vagueness for what it is has important implications. Identifying this category adds analytical clarity to the literature on the intersection of vagueness and nondelegation, which to this point has remained cursory and underdeveloped. It further offers insight into how a vagueness doctrine that was previously wielded to address racial discrimination by local police has transformed into a vagueness doctrine that seemingly only has purchase in challenges to federal malum prohibitum crimes. This Note thus adds to the realist literature that views vagueness doctrine as a doctrinal makeweight, which can be reshaped to serve broader and unrelated judicial values and priorities.

Identifying Structure-Based Vagueness has practical consequences too. Structure-Based Vagueness offers common ground to criminal justice reformers and immigrant rights advocates on the one hand, and conservative-libertarians interested in curbing the power of the federal government on the other. By employing the rhetoric of separation of powers in their vagueness arguments, criminal justice reformers and immigrant rights advocates can win meaningful progressive victories from a Court enamored with nondelegation. Moreover, Structure-Based Vagueness offers a limiting principle to opponents of a more aggressive nondelegation doctrine. By tying Structure-Based Vagueness and its nondelegation component to their underlying rationales, skeptics of the nondelegation doctrine can cabin its application to only criminal and penal laws, reducing the potentially harmful impact that a more rigid doctrine would have on environmental, labor, and other economic regulations.

This Note proceeds in four Parts. Part I provides a brief summary of the vagueness and nondelegation doctrines and canvasses literature that addresses their intersection. It then summarizes the Court’s decisions in Dimaya, Davis, and Gundy and draws out Justice Gorsuch’s specific claim about the relationship between vagueness and nondelegation. Part II inspects the historical trajectory of both doctrines, beginning just before the Lochner era and ending with today’s Roberts Court. It uses this history to challenge Justice Gorsuch’s claim. Part III then categorizes vagueness into its two conceptions—Rights-Based Vagueness and Structure-Based Vagueness. Part IV explores the theory behind Structure-Based Vagueness and identifies future applications. A brief conclusion follows.

1. Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights,
   

   62

   Stan. L. Rev.

   1361, 1387 (2010).

   ↑

2. 139 S. Ct. 2319, 2336 (2019). ↑
3. 138 S. Ct. 1204, 1223 (2018). ↑
4. 139 S. Ct. 2116, 2122 (2019). ↑
5. Dimaya, 138 S. Ct. at 1212. ↑
6. Id. at 1248 (Thomas, J., dissenting). ↑

7. Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting). ↑

The post Vagueness and Nondelegation first appeared on Virginia Law Review.

This Article reveals that central to the argument in favor of corporate constitutional personhood was a direct analogy between corporate shareholders and racial minorities. This Article thus highlights the intersection of corporate personhood and race, a connection that has rarely, if ever, been explored. Corporate lawyers’ expansive interpretation of equal protection ultimately triumphed in the Supreme Court with the twin cases of Yick Wo v. Hopkins, a bedrock of modern civil rights doctrine, and Santa Clara v. Southern Pacific Railroad, a case credited with extending equal protection rights to corporations. This is the first Article to juxtapose these two seminal cases and to expose the deep and long-standing connections between them. In so doing, this Article uncovers a neglected history of the link between corporations and race, as well as a lost history of the Fourteenth Amendment.

Introduction

“Like Frankenstein’s baby, there was no end to its growing, and no limit to its voracity. And, like that wonderful child, it started in to devour its author.”

– Records of the California Constitutional Convention (1878)

“The Fourteenth Amendment . . . stands in the constitution as a perpetual shield against all unequal and partial legislation by the states, and the injustice which follows from it, whether directed against the most humble or the most powerful; against the despised laborer from China, or the envied master of millions.”

– The Railroad Tax Cases (9th Cir. 1882)

Since the controversial cases of Citizens United v. Federal Election Commission¹ 1.558 U.S. 310 (2010).Show More and Burwell v. Hobby Lobby,² 2.573 U.S. 682 (2014).Show More which recognized the political speech and religious freedom rights of corporations,³ 3.In Citizens United, the Supreme Court struck down a federal law, 2 U.S.C. § 441b (2006), that banned direct corporate spending on political campaigns. 558 U.S. at 372. Citizens United was part of a long line of cases in which the Court had recognized the First Amendment rights of corporations, including: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (freedom of association); NAACP v. Button, 371 U.S. 415, 428–29 (1963) (freedom of expression and association); New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964) (freedom of speech and the press); and First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (campaign expenditures as political speech). Hobby Lobby concluded that corporations were “persons” under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1, and held that Health and Human Services regulations requiring employers to provide insurance that covered contraceptives unconstitutionally burdened closely held corporations’ exercise of religion. 573 U.S. at 736.Show More respectively, activist groups have been lobbying for a constitutional amendment to eliminate corporate constitutional personhood.⁴ 4.See Move to Amend, https://www.movetoamend.org/ [https://perma.cc/RH9L-2FZT] (last visited Aug. 19, 2020); United for the People, http://united4thepeople.org/ [https://perma.cc/XS9X-LZNR] (last visited Aug. 19, 2020).Show More Granting corporations constitutional rights, they argue, gives powerful mega-corporations even greater means to avoid regulation and manipulate elections, thus threatening “the democratic promise of America.”⁵ 5.United for the People, supra note 4; Move to Amend, supra note 4. See Joanna M. Meyer, The Real Error in Citizens United, 69 Wash. & Lee L. Rev. 2171, 2198 (2012).Show More In 2019, Rep. Pramila Jayapal (D-WA) introduced a bill to provide that “the rights extended by the Constitution are the rights of natural persons only” and that corporations “shall have no rights under this Constitution.”⁶ 6.H.R.J. Res. 48, 116th Cong. (2019) (proposing an amendment to the Constitution of the United States providing that the rights extended by the Constitution are the rights of natural persons only). Other bills introduced in both the House and the Senate have targeted specific constitutional rights, such as one “waiving the application of the first article of amendment to the political speech of corporations.” H.R.J. Res. 39, 116th Cong. (2019). See United for the People, http://united4thepeople.org/amendments/ (last visited Oct. 31, 2021) [https://perma.cc/QGU7-883U], for an up-to-date list of proposed amendments relating to corporate constitutional rights.Show More Supporters of this amendment showcase buttons and bumper stickers that proclaim: “Corporations are not People!”⁷ 7.See Move to Amend, https://move-to-amend.myshopify.com/collections/frontpage [https://perma.cc/8JVP-CYAD] (last visited Dec. 28, 2021).Show More

Corporate constitutional rights have been debated since the early years of the American Republic.⁸ 8.For early cases debating the constitutional rights of corporations, see Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 63–64 (1809); Hope Insurance Co. of Providence v. Boardman, 9 U.S. (5 Cranch) 57, 58 (1809); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46–47 (1815); Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, 556 (1819); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Peters) 420, 421 (1837); and Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 43 U.S. (2 Howard) 497, 499 (1844). See also Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights, at xxi (2018) (describing how the country’s most powerful corporations have persistently tried to use the Constitution to evade unwanted government regulations); Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1680 (2015) (explaining how the Supreme Court was tasked with determining the applicability of constitutional provisions to corporations in an 1809 case involving the first Bank of the United States).Show More Missing from histories of corporate personhood, however, is the central role that race played in the development of corporate constitutional rights.⁹ 9.Legal historians of corporate personhood have discussed corporate Fourteenth Amendment cases in some detail but have neglected the role that race played in the development of these cases. For representative writings on corporate personhood and constitutional rights, see Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173, 174 (1985); Blair & Pollman, supra note 8, at 1677; Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 Wis. L. Rev. 999, 1033–34; Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441, 1443 (1987); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640–41 (1988); David K. Millon, Theories of the Corporation, 1990 Duke L.J. 201, 205–07; Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629, 1630; Margaret M. Blair, Corporate Personhood and the Corporate Persona, 2013 U. Ill. L. Rev. 785, 796–97; Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment. 309, 310–12 (2015); Tamara R. Piety, Why Personhood Matters, 30 Const. Comment. 361, 362–63 (2015); Turkuler Isiksel, Corporations as Rights-Bearers, J. Pol. (forthcoming) (manuscript at 1–2) (on file with the author).Show More This Article uncovers this link by highlighting the strategy of a group of corporate lawyers and Ninth Circuit¹⁰ 10.At the time, the Circuit Court for the District of California, where the cases discussed in this Article arose, was located in the federal circuit encompassing California and Oregon. This court exercised both original and appellate jurisdiction and was staffed by one Supreme Court Justice (Stephen Field), one circuit court judge (Lorenzo Sawyer), and one district court judge (Ogden Hoffman), any two of which could hear a case. Christian G. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851–1891, at 29–30 (1991). To avoid confusion, this Article follows contemporary scholarship that refers to these cases as occurring in the Ninth Circuit. Id. at 29; Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism 573 (1968); Winkler, supra note 8, at 153–54. However, this should not be confused with the modern-day U.S. Court of Appeals for the Ninth Circuit, which was not created until the federal appellate system was redesigned in 1891. Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753, 1826 (2003).Show More judges to expand the Fourteenth Amendment using cases involving both corporations and race. As this Article reveals, modern ideas about corporate personhood are predicated on a historical analogy between corporate shareholders and racial minorities.¹¹ 11.A growing area of scholarship explores the connections between corporations and race. See, e.g., Cheryl L. Wade, Attempting to Discuss Race in Business and Corporate Law Courses and Seminars, 77 St. John’s L. Rev. 901 (2003); Alfred Dennis Mathewson, Race in Ordinary Course: Utilizing the Racial Background in Antitrust and Corporate Law Courses, 23 St. John’s J. Legal Comment. 667, 685 (2008); Cheryl L. Wade, Introduction to Symposium on People of Color, Women, and the Public Corporation: The Sophistication of Discrimination, 79 St. John’s L. Rev. 887, 890 (2005); Thomas W. Joo, Corporate Hierarchy and Racial Justice, 79 St. John’s L. Rev. 955 (2005); Thomas W. Joo, Race, Corporate Law, and Shareholder Value, 54 J. Legal Ed. 351 (2004); Juliet E.K. Walker, White Corporate America: The New Arbiter of Race? in Constructing Corporate America: History, Politics, Culture, 246, 253, 260 (Kenneth Lipartito & David B. Sicilia eds., 2007).Show More Yet racial analogies not only helped corporations gain constitutional rights; corporations themselves created constitutional guarantees that ultimately protected racial minorities. This neglected history shows that corporations have been crucial players in shaping rights guarantees—particularly an expansive interpretation of equal protection under the Fourteenth Amendment—that apply to individuals as well. In revealing these complex interconnections, this Article exposes the multifaceted legacy of litigation over corporate personhood in the development of modern equal protection jurisprudence.

This Article juxtaposes two seminal cases, decided on the same day in 1886 and brought by the same lawyers: Santa Clara County v. Southern Pacific Railroad,¹² 12.118 U.S. 394 (1886).Show More credited with establishing corporate Fourteenth Amendment rights,¹³ 13.See Horwitz, supra note 9, at 173; Blair & Pollman, supra note 8, at 1694–95; Avi-Yonah, supra note 9, at 1033–34.Show More and Yick Wo v. Hopkins,¹⁴ 14.118 U.S. 356 (1886).Show More a touchstone of modern civil rights jurisprudence.¹⁵ 15.See 2 Encyclopedia of American Civil Rights and Liberties 482, 1055 (Kara E. Stooksbury, John M. Scheb, II & Otis H Stephens, Jr. eds., rev. and expanded ed. 2017); Peter Irons, Jim Crow’s Children: The Broken Promise of the Brown Decision 53 (2004); see also infra notes 327–35 (noting early civil rights cases citing Yick Wo).Show More This Article uncovers the conjoined history of these two Fourteenth Amendment cases, one involving a corporation and the other a Chinese immigrant, and their antecedents.¹⁶ 16.Scholars have studied the connection between Fourteenth Amendment claims of Chinese immigrants and the Supreme Court’s desire to protect economic rights. See Thomas Wuil Joo, New “Conspiracy Theory” of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354–55 (1995); Thomas W. Joo, Yick Wo Re-Revisited: Nonblack Nonwhites and Fourteenth Amendment History, 2008 U. Ill. L. Rev. 1427, 1428; Charles McClain, Jr., In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America 83 (1994); Graham, supra note 10, at 15; Daniel W. Levy, Classical Lawyers and the Southern Pacific Railroad, 9 W. Legal Hist. 177, 211, 216 (1996); Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age 209 (1997); Winkler, supra note 8, at 153. However, no prior scholarship has specifically examined the intersection of Fourteenth Amendment claims by corporations and by Chinese immigrants.Show More Drawing on little-known archival sources, it traces how the same coterie of corporate lawyers simultaneously brought Fourteenth Amendment cases involving Chinese and corporate litigants before the sympathetic Ninth Circuit in order to strategically craft a broad interpretation of the Equal Protection Clause that applied to all “persons,” natural and artificial alike.¹⁷ 17.See In re Ah Fong, 1 F. Cas. 213, 213 (C.C.D. Cal. 1874) (No. 102); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 252 (C.C.D. Cal. 1879) (No. 6,546); In re Ah Chong, 2 F. 733, 737 (C.C.D. Cal. 1880); In re Tiburcio Parrott, 1 F. 481, 482 (C.C.D. Cal. 1880); The Railroad Tax Cases, 13 F. 722, 727 (C.C.D. Cal. 1882); In re Quong Woo, 13 F. 229, 233 (C.C.D. Cal. 1882); County of Santa Clara v. S. Pac. R.R. Co., 18 F. 385, 386, 397 (C.C.D. Cal. 1883), aff’d, 118 U.S. 394 (1886); In re Yick Wo, 9 P. 139, 139 (Cal. 1885), rev’d sub nom. Yick Wo v. Hopkins, 118 U.S. 356 (1886); In re Wo Lee, 26 F. 471, 475 (C.C.D. Cal. 1886).Show More Although in the Slaughter-House Cases the Supreme Court had suggested that it would read the Fourteenth Amendment narrowly,¹⁸ 18.Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80–81 (1873).Show More in Yick Wo and Santa Clara the Court changed course and adopted the Ninth Circuit’s expansive interpretation of equal protection, a doctrinal shift with lasting effects today.

This is not a story of unintended consequences. By expanding the scope of the Equal Protection Clause to include Chinese immigrants, corporate lawyers were able to use the Chinese cases to draw a through-line from African Americans—the original beneficiaries of the Fourteenth Amendment—to Chinese immigrants, to corporate shareholders.¹⁹ 19.The social and political connections of Chinese “coolies” with railroad and mining corporations in the context of Greater Reconstruction debates over the meaning of “free labor” and “equality” are explored in Evelyn Atkinson, Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment, 10 J. Civ. War Era 54 (2020).Show More This comparison was made possible because corporate lawyers and federal judges intentionally portrayed the corporation as simply an aggregate of rights-bearing shareholders who did not forsake their constitutional rights when they joined the corporation. In this framing, shareholders were members of a persecuted group, the same as racial minorities.

This view of the corporation as solely an aggregate of rights-bearing shareholders was at odds with an older common law vision of the corporation as both an aggregate of individuals and a separate legal person with special rights and duties distinct from those of “natural” persons.²⁰ 20.See John Dewey, The Historic Background of Corporate Legal Personality, 35 Yale L.J. 655, 656 (1926); 3 The Collected Papers of Frederic William Maitland 307 (H. A. L. Fisher ed., 1911).Show More In Part I below, this Article exposes a contour of common law corporate personhood that has not previously been noted: incorporation was a status in which corporate legal persons existed in a hierarchical relationship with the public, akin to master-servant or parent-child.²¹ 21.See discussion infra Part I.Show More The common law view of the corporation as a “child” or “servant” of the public justified more stringent state regulation of corporations than of individuals: the state was the benevolent parent, overseeing its corporate child to ensure the corporation acted in the public interest.²² 22.William Novak discusses the extensive power of state legislatures to regulate in the “public interest” in William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 19–20 (1996).Show More

Yet as Part II discusses, throughout the nineteenth century, corporate lawyers challenged this view, arguing that corporations were not “children” who owed a special duty of obedience to the parental state but private, profit-making entities whose interests were unrelated or even potentially opposed to those of the public. In this view, the corporation was a naturally arising market phenomenon, akin to any other private market actor, with no special obligation to the public welfare.²³ 23.This has been called the “natural” or “real entity” theory of the corporation, that corporations are naturally emerging market entities controlled by their managers. See Avi-Yonah, supra note 9, at 1000–01; Blair, supra note 9, at 805; Pollman, supra note 9, at 1642; Arthur W. Machen, Jr., Corporate Personality, 24 Harv. L. Rev 253, 262 (1911).Show More In support of this argument, corporate lawyers reframed the corporation not as a group of individuals authorized to act as one “artificial,” “legal person” for certain purposes, but as solely an aggregation of constitutional-rights-bearing shareholders.²⁴ 24.This is called the “aggregate” or “associational” theory. See Horwitz, supra note 9, at 182; Mark, supra note 9, at 1462; Hovenkamp, supra note 9, at 1597–98; Pollman, supra note 9, at 1662. Morton Horwitz argues that the aggregate theory was short-lived because of the increasing separation of management and control and that the “entity” theory replaced the aggregate theory in the early twentieth century. Horwitz, supra note 9, at 182. However, Citizens United, Hobby Lobby, and other recent cases have invoked an aggregate view of the corporation to justify extending freedom of speech and religion to corporations. See Citizens United v. FEC, 558 U.S. 310, 356 (2010) (“Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (attributing the religious beliefs of the shareholders of a closely held corporation to the corporate entity itself). But see Avi-Yonah, supra note 9, at 1040 (arguing that “both the majority and the dissent [of Citizens United] adopted the real entity view of the corporation”). Actually, the Court tacked back and forth between different conceptions of corporate personality.Show More By framing the corporation simply as a collection of private, rights-bearing individuals, corporate lawyers were able to argue that the rights and duties of corporations were simply the rights and duties of the natural persons who composed them, and no more.²⁵ 25.See infra Part I.Show More

This debate over whether the corporation was a state creation granted legal personhood in certain contexts for the purpose of furthering the public interest, or simply a group of private, rights-bearing individuals pursuing their own economic gain, was central to the cases involving corporate Fourteenth Amendment rights. While Morton Horwitz, Gregory Mark, and others have shown that key to the Ninth Circuit’s reasoning in Santa Clara was a view of the corporation as an aggregate of shareholders,²⁶ 26.Horwitz, supra note 9, at 223; Mark, supra note 9, at 1464.Show More they have not examined the equally viable, alternative vision of the corporation as a “child of the state” presented by opposing counsel and reflected in public opinion. More importantly, they have overlooked the racial analogy underlying the precedents to Santa Clara on which the doctrine of corporate constitutional personhood was built.²⁷ 27.Mark and Horwitz have explained the reliance on the aggregate theory of corporate personhood as primarily rooted in property protection. Mark, supra note 9, at 1464; Horwitz, supra note 9, at 177.Show More This Article reveals the background and reasoning behind this significant judicial reframing of corporate personhood: the aggregate theory of the corporation allowed corporate lawyers and judges to analogize shareholders to racial minorities as similarly persecuted groups targeted by discriminatory legislation.

This analogy, of course, disregarded the immense power discrepancy between corporate shareholders and persecuted racial groups. By holding that the Equal Protection Clause applied to “the despised laborer from China” as much as the “envied master of millions,”²⁸ 28.The Railroad Tax Cases, 13 F. 722, 741 (C.C.D. Cal. 1882).Show More the Ninth Circuit endorsed an interpretation of the Amendment as treating all persons alike, regardless of their social and economic power. This reasoning bolstered a “formal equality” interpretation of the Fourteenth Amendment, in contrast to claims that the Amendment embodied a commitment to “substantive equality” or anti-subordination—part of a trend towards limiting the Amendment’s ability to address long-standing inequalities that continues today.²⁹ 29.“Substantive equality,” or “anti-subordination,” consists not only in eliminating discrimination but also in “alter[ing] the circumstances that are identified as giving rise to equality questions in the first place.” Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 11 (2011) [hereinafter MacKinnon, Substantive Equality]; see also Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 Ohio St. L.J. 1089, 1090 (2008) (contrasting a “formal equality” with an “anti-subordination” perspective); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1336 (1988) (contrasting “equality as a process” with “equality as a result”). For an extensive analysis of “formal” versus “substantive” concepts of equality, see generally Catharine A. MacKinnon, Sex Equality (2007) [hereinafter MacKinnon, Sex Equality].Show More

This is not a case of manipulation by corporate lawyers of disempowered minority litigants. Chinese litigants were willing partners in the strategy to join forces with corporations to expand the Fourteenth Amendment. As this Article reveals, the economic and social connections between industrial corporate magnates and the elite Chinese mercantile and political community were long-standing. Both relied financially on the continued immigration of Chinese laborers, and both had long been represented by the same corporate lawyers. They were also both the target of discriminatory regulations that aimed to simultaneously curb corporate power and stem Chinese immigration. The Fourteenth Amendment provided a valuable tool for corporate lawyers to advocate on behalf of both sets of clients. By eliding the difference between Chinese immigrants and shareholders in these interrelated lines of cases, corporate lawyers cemented an interpretation of equal protection that culminated in the success of the twin cases of Santa Clara and Yick Wo.

For years, scholars have pondered Chief Justice Morrison Waite’s famously blithe comment at the outset of oral argument in Santa Clara that the Justices did not wish to hear argument on whether the Fourteenth Amendment applied to corporations, as they were “all of [the] opinion that it does.”³⁰ 30.Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 396 (1886); see, e.g., Howard Jay Graham, The Waite Court and the Fourteenth Amendment, 17 Vand. L. Rev. 525, 530 (1964) (“Nowhere in the United States Reports are there to be found words more momentous or more baffling than these.”); Horwitz, supra note 9, at 173 (“[The decision] has always been puzzling and controversial”); Pollman, supra note 9, at 1644 n.92 (“[T]he unusual circumstances of this case have evoked skepticism and debate.”).Show More Gregory Mark has pointed out that Waite expressly avoided addressing the constitutional question and argued that his statement indicated that the Court merely intended to accept the argument that the corporate property in this case was protected as property of the shareholders.³¹ 31.Mark, supra note 9, at 1464.Show More Elizabeth Pollman has also explained Waite’s statement as concerned with protecting the shareholders’ property interests.³² 32.Pollman, supra note 9, at 1644–45.Show More Howard Graham, dismissing the claim as “dictum,” went so far as to contend that “the recording of this statement was a fluke––the Court reporter’s after-thought!”³³ 33.Graham, supra note 30, at 530.Show More Adam Winkler has likewise claimed that Waite never intended his quote to become part of the opinion, but that it was intentionally misrepresented in the case report by a perfidious court reporter.³⁴ 34.Winkler, supra note 8, at 153.Show More

J. Willard Hurst even posited that, given late nineteenth-century law’s general embrace of economic activity, extending the Fourteenth Amendment to corporations “provoked no significant contemporary controversy.”³⁵ 35.James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, at 68 (1970).Show More

This Article offers a novel interpretation of this puzzle. By reading Santa Clara in light of Yick Wo and the preceding line of corporate and Chinese Fourteenth Amendment cases, this Article illuminates the context of equal protection jurisprudence surrounding Waite’s enigmatic statement—specifically, the interplay between corporate personhood and race. As this Article reveals, the definition of equal protection that the Court adopted in Yick Wo had been developed in Ninth Circuit corporate and Chinese Fourteenth Amendment cases throughout the preceding decade and was central to the arguments of counsel in both Yick Wo and Santa Clara. By the time the Waite Court heard Santa Clara, the link between racial minorities and corporate shareholders had become well established in equal protection jurisprudence.³⁶ 36.Elizabeth Pollman notes the precedential effect of the Ninth Circuit’s equal protection jurisprudence but does not explore the explicit connections to race. Pollman, supra note 9, at 1644.Show More Although the Court announced its expanded interpretation of equal protection in Yick Wo rather than Santa Clara, its reasoning had long been applied equally to corporate litigants. This Article suggests that one reason why the Court declined to hear arguments on whether the Fourteenth Amendment protected corporations was because the combined precedent of Chinese and corporate cases had already established that it did.

The success of corporations at claiming constitutional rights has produced a forked legacy. Critics of Citizens United and Hobby Lobby have contended that corporate personhood has been used to trump the rights of individuals³⁷ 37.As Justice Ruth Bader Ginsburg argued in Hobby Lobby, the majority prioritized religious rights of employers over the reproductive rights of female employees. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 740 (2014) (Ginsburg, J., dissenting); see also Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, 26 Yale J.L. & Feminism 217 (2014).Show More and to subvert the democratic process.³⁸ 38.One outcome of Citizens United has arguably been to permit dark-money groups to sway elections. See Heather K. Gerken, The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903, 905 (2014); Danny Emmer, Shedding Light on “Dark Money”: The Heightened Risk of Foreign Influence Post-Citizens United, 20 Sw. J. Int’l L. 381, 382 (2014).Show More In contrast, supporters of the decisions have argued that corporations are collections of shareholders who do not lose their fundamental rights simply because they do business as a corporation.³⁹ 39.Citizens United v. FEC, 558 U.S. 310, 339–40 (2010); Hobby Lobby, 573 U.S. at 706–07; see, e.g., Richard A. Epstein, The Defeat of the Contraceptive Mandate in Hobby Lobby: Right Results, Wrong Reasons, 2014 Cato Sup. Ct. Rev. 35, 45; Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154, 162–63 (2014).Show More Yet even those who oppose corporate constitutional personhood must acknowledge the discomfiting reality that corporate rights litigation has been, and continues to be, an important means of expanding rights protections for natural persons. Today, corporations play an important role in protecting civil rights in other contexts, such as by bringing claims for racial discrimination on behalf of their members under the 1866 Civil Rights Act.⁴⁰ 40.42 U.S.C. § 1981(a). Because corporations are typically the contracting party in these cases, not the natural persons against which the actual discrimination is directed, under common law principles of contract law the corporation is the only “person” that has standing to sue. See infra note 342.Corporate litigation has also laid the groundwork for individual claims regarding religious freedom. Hobby Lobby has been invoked by smaller corporations, nonprofits, individuals, and partnerships claiming freedom of religion rights in similar contexts. See, e.g., Brief for Petitioners at 38 n.6, Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111); Reply Brief for Petitioners in Nos. 14-1418, 14-1453 & 14-1505, at 7–8, Zubik v. Burwell, 578 U.S. 403 (2016) (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191); Brief for Petitioners in Nos. 15-35, 15-105, 15-119 & 15-191, at 2, Zubik, 578 U.S. 403 (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191). The wealth and institutional knowledge of large corporations like Hobby Lobby and their lawyers make them ideally suited to pursue impact litigation that establishes precedent for non-corporate claims of religious freedom violations.Show More This does not mean we should rehabilitate constitutional-rights-bearing corporate persons; but we must admit that a blanket condemnation of corporate personhood ignores the important historical legacy of corporate rights litigation and the continued interconnection—even interdependency—of corporations and racial minorities.

The Article proceeds in three Parts. Part I addresses the common law vision of the corporation as both an aggregate of individuals and a “child of the state” with rights and duties different from those of natural persons and traces the continued viability of this vision throughout the period in which Santa Clara was decided. Part II concerns corporate challenges to this traditional view in Fourteenth Amendment litigation, examining the strategy of corporate lawyers’ and Ninth Circuit judges’ reliance on the aggregate theory of corporate personhood to analogize Chinese immigrants to corporate shareholders in order to support a broad reading of the Equal Protection Clause. Part III examines the background of Santa Clara and reveals how the meaning of equal protection established by the Chinese and corporate Fourteenth Amendment cases informed the Court’s ultimate rulings in Santa Clara and Yick Wo, laying the groundwork for modern equal protection doctrine today.

1. * Postdoctoral Teaching Fellow, University of Chicago. Ph.D, University of Chicago; J.D., Harvard Law School. Many thanks to Amy Dru Stanley, Laura Weinrib, Alison LaCroix, Jonathan Levy, Ajay Mehrotra, Christopher Schmidt, Naomi Lamoreaux, Gregory Mark, Adam Winkler, Paul Kens, Nikolas Bowie, Naama Maor, Lael Weinberger, and the American Bar Foundation Doctoral Fellows Workshop (2018–2020) for their comments and insights. Thank you also to the editors of the Virginia Law Review for their deep engagement with this text, as well as their technical prowess. ↑
2. 558 U.S. 310 (2010). ↑
3. 573 U.S. 682 (2014). ↑
4. In Citizens United, the Supreme Court struck down a federal law, 2 U.S.C. § 441b (2006), that banned direct corporate spending on political campaigns. 558 U.S. at 372. Citizens United was part of a long line of cases in which the Court had recognized the First Amendment rights of corporations, including: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (freedom of association); NAACP v. Button, 371 U.S. 415, 428–29 (1963) (freedom of expression and association); New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964) (freedom of speech and the press); and First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (campaign expenditures as political speech). Hobby Lobby concluded that corporations were “persons” under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1, and held that Health and Human Services regulations requiring employers to provide insurance that covered contraceptives unconstitutionally burdened closely held corporations’ exercise of religion. 573 U.S. at 736. ↑
5. See Move to Amend, https://www.movetoamend.org/ [https://perma.cc/RH9L-2FZT] (last visited Aug. 19, 2020); United for the People, http://united4thepeople.org/ [https://perma.cc/XS9X-LZNR] (last visited Aug. 19, 2020). ↑
6. United for the People, supra note 4; Move to Amend, supra note 4. See Joanna M. Meyer, The Real Error in Citizens United, 69 Wash. & Lee L. Rev. 2171, 2198 (2012). ↑
7. H.R.J. Res. 48, 116th Cong. (2019) (proposing an amendment to the Constitution of the United States providing that the rights extended by the Constitution are the rights of natural persons only). Other bills introduced in both the House and the Senate have targeted specific constitutional rights, such as one “waiving the application of the first article of amendment to the political speech of corporations.” H.R.J. Res. 39, 116th Cong. (2019). See United for the People, http://united4thepeople.org/amendments/ (last visited Oct. 31, 2021) [https://perma.cc/QGU7-883U], for an up-to-date list of proposed amendments relating to corporate constitutional rights. ↑
8.  See Move to Amend, https://move-to-amend.myshopify.com/collections/frontpage [https://perma.cc/8JVP-CYAD] (last visited Dec. 28, 2021). ↑
9. For early cases debating the constitutional rights of corporations, see Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 63–64 (1809); Hope Insurance Co. of Providence v. Boardman, 9 U.S. (5 Cranch) 57, 58 (1809); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46–47 (1815); Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, 556 (1819); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Peters) 420, 421 (1837); and Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 43 U.S. (2 Howard) 497, 499 (1844). See also Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights, at xxi (2018) (describing how the country’s most powerful corporations have persistently tried to use the Constitution to evade unwanted government regulations); Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1680 (2015) (explaining how the Supreme Court was tasked with determining the applicability of constitutional provisions to corporations in an 1809 case involving the first Bank of the United States). ↑
10.  Legal historians of corporate personhood have discussed corporate Fourteenth Amendment cases in some detail but have neglected the role that race played in the development of these cases. For representative writings on corporate personhood and constitutional rights, see Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173, 174 (1985); Blair & Pollman, supra note 8, at 1677; Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 Wis. L. Rev. 999, 1033–34; Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441, 1443 (1987); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640–41 (1988); David K. Millon, Theories of the Corporation, 1990 Duke L.J. 201, 205–07; Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629, 1630; Margaret M. Blair, Corporate Personhood and the Corporate Persona, 2013 U. Ill. L. Rev. 785, 796–97; Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment. 309, 310–12 (2015); Tamara R. Piety, Why Personhood Matters, 30 Const. Comment. 361, 362–63 (2015); Turkuler Isiksel, Corporations as Rights-Bearers, J. Pol. (forthcoming) (manuscript at 1–2) (on file with the author). ↑
11. At the time, the Circuit Court for the District of California, where the cases discussed in this Article arose, was located in the federal circuit encompassing California and Oregon. This court exercised both original and appellate jurisdiction and was staffed by one Supreme Court Justice (Stephen Field), one circuit court judge (Lorenzo Sawyer), and one district court judge (Ogden Hoffman), any two of which could hear a case. Christian G. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851–1891, at 29–30 (1991). To avoid confusion, this Article follows contemporary scholarship that refers to these cases as occurring in the Ninth Circuit. Id. at 29; Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism 573 (1968); Winkler, supra note 8, at 153–54. However, this should not be confused with the modern-day U.S. Court of Appeals for the Ninth Circuit, which was not created until the federal appellate system was redesigned in 1891. Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753, 1826 (2003). ↑
12. A growing area of scholarship explores the connections between corporations and race. See, e.g., Cheryl L. Wade, Attempting to Discuss Race in Business and Corporate Law Courses and Seminars, 77 St. John’s L. Rev. 901 (2003); Alfred Dennis Mathewson, Race in Ordinary Course: Utilizing the Racial Background in Antitrust and Corporate Law Courses, 23 St. John’s J. Legal Comment. 667, 685 (2008); Cheryl L. Wade, Introduction to Symposium on People of Color, Women, and the Public Corporation: The Sophistication of Discrimination, 79 St. John’s L. Rev. 887, 890 (2005); Thomas W. Joo, Corporate Hierarchy and Racial Justice, 79 St. John’s L. Rev. 955 (2005); Thomas W. Joo, Race, Corporate Law, and Shareholder Value, 54 J. Legal Ed. 351 (2004); Juliet E.K. Walker, White Corporate America: The New Arbiter of Race? in Constructing Corporate America: History, Politics, Culture, 246, 253, 260 (Kenneth Lipartito & David B. Sicilia eds., 2007). ↑
13. 118 U.S. 394 (1886). ↑
14. See Horwitz, supra note 9, at 173; Blair & Pollman, supra note 8, at 1694–95; Avi-Yonah, supra note 9, at 1033–34. ↑
15. 118 U.S. 356 (1886). ↑
16.  See 2 Encyclopedia of American Civil Rights and Liberties 482, 1055 (Kara E. Stooksbury, John M. Scheb, II & Otis H Stephens, Jr. eds., rev. and expanded ed. 2017); Peter Irons, Jim Crow’s Children: The Broken Promise of the Brown Decision 53 (2004); see also infra notes 327–35 (noting early civil rights cases citing Yick Wo). ↑
17. Scholars have studied the connection between Fourteenth Amendment claims of Chinese immigrants and the Supreme Court’s desire to protect economic rights. See Thomas Wuil Joo, New “Conspiracy Theory” of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354–55 (1995); Thomas W. Joo, Yick Wo Re-Revisited: Nonblack Nonwhites and Fourteenth Amendment History, 2008 U. Ill. L. Rev. 1427, 1428; Charles McClain, Jr., In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America 83 (1994); Graham, supra note 10, at 15; Daniel W. Levy, Classical Lawyers and the Southern Pacific Railroad, 9 W. Legal Hist. 177, 211, 216 (1996); Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age 209 (1997); Winkler, supra note 8, at 153. However, no prior scholarship has specifically examined the intersection of Fourteenth Amendment claims by corporations and by Chinese immigrants. ↑
18. See In re Ah Fong, 1 F. Cas. 213, 213 (C.C.D. Cal. 1874) (No. 102); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 252 (C.C.D. Cal. 1879) (No. 6,546); In re Ah Chong, 2 F. 733, 737 (C.C.D. Cal. 1880); In re Tiburcio Parrott, 1 F. 481, 482 (C.C.D. Cal. 1880); The Railroad Tax Cases, 13 F. 722, 727 (C.C.D. Cal. 1882); In re Quong Woo, 13 F. 229, 233 (C.C.D. Cal. 1882); County of Santa Clara v. S. Pac. R.R. Co., 18 F. 385, 386, 397 (C.C.D. Cal. 1883), aff’d, 118 U.S. 394 (1886); In re Yick Wo, 9 P. 139, 139 (Cal. 1885), rev’d sub nom. Yick Wo v. Hopkins, 118 U.S. 356 (1886); In re Wo Lee, 26 F. 471, 475 (C.C.D. Cal. 1886). ↑
19. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80–81 (1873). ↑
20. The social and political connections of Chinese “coolies” with railroad and mining corporations in the context of Greater Reconstruction debates over the meaning of “free labor” and “equality” are explored in Evelyn Atkinson, Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment, 10 J. Civ. War Era 54 (2020). ↑
21. See John Dewey, The Historic Background of Corporate Legal Personality, 35 Yale L.J. 655, 656 (1926); 3 The Collected Papers of Frederic William Maitland 307 (H. A. L. Fisher ed., 1911). ↑
22. See discussion infra Part I. ↑
23. William Novak discusses the extensive power of state legislatures to regulate in the “public interest” in William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 19–20 (1996). ↑
24. This has been called the “natural” or “real entity” theory of the corporation, that corporations are naturally emerging market entities controlled by their managers. See Avi-Yonah, supra note 9, at 1000–01; Blair, supra note 9, at 805; Pollman, supra note 9, at 1642; Arthur W. Machen, Jr., Corporate Personality, 24 Harv. L. Rev 253, 262 (1911). ↑
25. This is called the “aggregate” or “associational” theory. See Horwitz, supra note 9, at 182; Mark, supra note 9, at 1462; Hovenkamp, supra note 9, at 1597–98; Pollman, supra note 9, at 1662. Morton Horwitz argues that the aggregate theory was short-lived because of the increasing separation of management and control and that the “entity” theory replaced the aggregate theory in the early twentieth century. Horwitz, supra note 9, at 182. However, Citizens United, Hobby Lobby, and other recent cases have invoked an aggregate view of the corporation to justify extending freedom of speech and religion to corporations. See Citizens United v. FEC, 558 U.S. 310, 356 (2010) (“Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (attributing the religious beliefs of the shareholders of a closely held corporation to the corporate entity itself). But see Avi-Yonah, supra note 9, at 1040 (arguing that “both the majority and the dissent [of Citizens United] adopted the real entity view of the corporation”). Actually, the Court tacked back and forth between different conceptions of corporate personality. ↑
26. See infra Part I. ↑
27. Horwitz, supra note 9, at 223; Mark, supra note 9, at 1464. ↑
28. Mark and Horwitz have explained the reliance on the aggregate theory of corporate personhood as primarily rooted in property protection. Mark, supra note 9, at 1464; Horwitz, supra note 9, at 177. ↑
29. The Railroad Tax Cases, 13 F. 722, 741 (C.C.D. Cal. 1882). ↑
30.  “Substantive equality,” or “anti-subordination,” consists not only in eliminating discrimination but also in “alter[ing] the circumstances that are identified as giving rise to equality questions in the first place.” Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 11 (2011) [hereinafter MacKinnon, Substantive Equality]; see also Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 Ohio St. L.J. 1089, 1090 (2008) (contrasting a “formal equality” with an “anti-subordination” perspective); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1336 (1988) (contrasting “equality as a process” with “equality as a result”). For an extensive analysis of “formal” versus “substantive” concepts of equality, see generally Catharine A. MacKinnon, Sex Equality (2007) [hereinafter MacKinnon, Sex Equality]. ↑
31. Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 396 (1886); see, e.g., Howard Jay Graham, The Waite Court and the Fourteenth Amendment, 17 Vand. L. Rev. 525, 530 (1964) (“Nowhere in the United States Reports are there to be found words more momentous or more baffling than these.”); Horwitz, supra note 9, at 173 (“[The decision] has always been puzzling and controversial”); Pollman, supra note 9, at 1644 n.92 (“[T]he unusual circumstances of this case have evoked skepticism and debate.”). ↑
32. Mark, supra note 9, at 1464. ↑
33. Pollman, supra note 9, at 1644–45. ↑
34. Graham, supra note 30, at 530. ↑
35. Winkler, supra note 8, at 153. ↑
36. James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, at 68 (1970). ↑
37. Elizabeth Pollman notes the precedential effect of the Ninth Circuit’s equal protection jurisprudence but does not explore the explicit connections to race. Pollman, supra note 9, at 1644. ↑
38. As Justice Ruth Bader Ginsburg argued in Hobby Lobby, the majority prioritized religious rights of employers over the reproductive rights of female employees. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 740 (2014) (Ginsburg, J., dissenting); see also Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, 26 Yale J.L. & Feminism 217 (2014). ↑
39. One outcome of Citizens United has arguably been to permit dark-money groups to sway elections. See Heather K. Gerken, The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903, 905 (2014); Danny Emmer, Shedding Light on “Dark Money”: The Heightened Risk of Foreign Influence Post-Citizens United, 20 Sw. J. Int’l L. 381, 382 (2014). ↑
40. Citizens United v. FEC, 558 U.S. 310, 339–40 (2010); Hobby Lobby, 573 U.S. at 706–07; see, e.g., Richard A. Epstein, The Defeat of the Contraceptive Mandate in Hobby Lobby: Right Results, Wrong Reasons, 2014 Cato Sup. Ct. Rev. 35, 45; Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154, 162–63 (2014). ↑

41. 42 U.S.C. § 1981(a). Because corporations are typically the contracting party in these cases, not the natural persons against which the actual discrimination is directed, under common law principles of contract law the corporation is the only “person” that has standing to sue. See infra note 342.

    Corporate litigation has also laid the groundwork for individual claims regarding religious freedom. Hobby Lobby has been invoked by smaller corporations, nonprofits, individuals, and partnerships claiming freedom of religion rights in similar contexts. See, e.g., Brief for Petitioners at 38 n.6, Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111); Reply Brief for Petitioners in Nos. 14-1418, 14-1453 & 14-1505, at 7–8, Zubik v. Burwell, 578 U.S. 403 (2016) (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191); Brief for Petitioners in Nos. 15-35, 15-105, 15-119 & 15-191, at 2, Zubik, 578 U.S. 403 (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191). The wealth and institutional knowledge of large corporations like Hobby Lobby and their lawyers make them ideally suited to pursue impact litigation that establishes precedent for non-corporate claims of religious freedom violations. ↑

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Introduction

This Article focuses on a single doctrinal question: what domestic legal process is necessary for the United States to rejoin a treaty from which it has been unilaterally withdrawn by the President? More specifically, may a President seeking to rejoin a treaty do so in reliance of the original resolution of advice and consent passed by the Senate, or must he or she return to the Senate for a second resolution?

This is a question that has received no sustained attention in scholarship or in practice. This itself is a cause for celebration, a reflection of the fact that unilateral treaty withdrawals by Presidents historically have been rare and usually well-founded. It was controversial when President Carter unilaterally withdrew the United States from its mutual defense treaty with Taiwan, but his successor quickly came to recognize the value of normalized relations with mainland China.¹ 1.Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”).Show More

Since coming to office, President Trump has pursued a policy of international disengagement on many fronts. To date, he has focused mainly on rolling back international commitments made by President Obama which the United States had joined not as “treaties” in the constitutional sense of the word, but rather through other constitutional pathways.² 2.E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017).Show More Yet he and his administration have also shown a willingness to terminate treaties—legal instruments that received the advice and consent of two-thirds of the Senate and thus commanded, at least at one point in history, strong bipartisan support.³ 3.Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”).Show More Specifically:

• News reporting early in the Trump administration indicated that it planned to conduct a widespread review of all multi­lateral treaties other than those “directly related to national security, extradition, or international trade” in order to assess “whether the United States should continue to be a party . . . .”⁴ 4.Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order).Show More
• In October 2018, the Trump administration announced the immediate or planned U.S. withdrawal from three treaties: the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes; the Treaty of Amity, Economic Relations, and Consular Rights with Iran; and the Intermediate-Range Nuclear Forces (INF) Treaty with Russia and other former Soviet Republics.⁵ 5.Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019).Show More
• In remarks related to two of these withdrawals, then-National Security Advisor John Bolton signaled that the Trump administration would more generally consider withdrawing from treaties or treaty provisions in which the United States had consented to the jurisdiction of the International Court of Justice.⁶ 6.Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW.Show More
• President Trump has repeatedly expressed doubts about NATO and has indicated some interest in withdrawing from the North Atlantic Treaty which underlies it.⁷ 7.See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions).Show More

As a matter of U.S. domestic law, the executive branch considers itself authorized to withdraw from treaties without receiving explicit approval to do so from Congress or the Senate, at least provided that the withdrawal is consistent with international law. Although his position has never received the explicit blessing of the U.S. Supreme Court, it is now well-grounded in executive branch practice and it has been accepted both by the Restatement (Third) and the recent Restatement (Fourth) of Foreign Relations Law.⁸ 8.Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe).Show More The prospect of landmark treaties being terminated at the whim of President Trump has motivated some scholarly reexamination of this issue.⁹ 9.E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018).Show More But requiring the explicit approval of Congress or two-thirds of the Senate for treaty withdrawal raises its own normative concerns and in any event is an uphill argument in light of past practice. And unless and until such a claim succeeds with the courts (or Congress explicitly legislates to block termination), President Trump and his successors will continue to possess the putative power of treaty withdrawal.

This Article therefore focuses on the issue of rejoining treaties. The more polarized the office of the Presidency becomes—and the more it is held by individuals who act based on caprice rather than expertise—the greater the likelihood there is that one President will withdraw from treaties that a later President will wish to rejoin. Such rejoining would have to be not only feasible at the international level (i.e., consistent with international law and receiving any necessary approval from treaty partners), but also legal as a matter of domestic law.

This Article is not the first piece to consider the issue of the process for rejoining treaties. Back in 1986, for example, shortly after President Reagan withdrew the United States from the general jurisdiction of the International Court of Justice, a student comment on the subject stated without analysis that rejoining “would be contingent on the advice and consent of the Senate.”¹⁰ 10.Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986).Show More More recently and more significantly, a former leading practitioner for the State Department in the climate context, Sue Biniaz, sketched out some thoughts about the legal process for rejoining in a conference thought paper. Raising the possibility that President Trump might withdraw from the U.N. Framework Convention on Climate Change, she floated the idea that “a new Administration [could] take the position that the Senate’s original resolution of advice and consent had not expired and, as such, the President was free to [resubmit] an instrument of ratification.”¹¹ 11.Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point).Show More Yet while the idea of rejoining treaties is not new to this paper, it is a subject that to date has not received sustained scholarly treatment, unlike the issue of treaty withdrawal.

There are three ways by which the President might rejoin a treaty as a matter of domestic law. One obviously lawful way would be to go back to the Senate for another round of advice and consent by a supermajority. But getting treaties through the Senate has always been challenging and is now even harder than it used to be, due both to increased partisanship and to changed procedural norms. Indeed, from 2001 through 2010, the Senate advised and consented to only one treaty where there were any recorded dissenting votes.¹² 12.Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012).Show More To require another round of Senate advice and consent to rejoin treaties would cause such rejoining to range from challenging to effectively impossible.

A second option would be to rejoin the international agreement not as a treaty but rather through some other domestic process. U.S. constitutional practice has developed several domestic pathways distinct from that set out in the Treaty Clause by which the United States can join international agreements.¹³ 13.For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97.Show More Some important agreements are made by the executive branch without specific legislative approval, such as President Obama’s decision to join the United States to the Paris Agreement on climate.¹⁴ 14.See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power).Show More Others, such as most major trade agreements, receive specific approval from Congress.¹⁵ 15.Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements).Show More There is considerable uncertainty about the extent to which the uses of these other pathways are constitutionally permissible. Accordingly, these alternative pathways might be available as a matter of law for some or even all international agreements which the United States initially joined as treaties but later withdrew from based on unilateral presidential action.¹⁶ 16.This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law.Show More Even if lawful, however, rebranding a former treaty as an agreement that could be joined in a manner akin to the Paris Agreement rather than as an Article II treaty would likely raise procedural concerns within the State Department, face congressional pushback, and potentially complicate the agreement’s implementation. Going to Congress for statutory approval prior to rejoining would reduce concerns about legality and implementation. But obtaining such approval would likely prove difficult as a matter of legislative process, particularly if the shift from treaty to congressional-executive agreement triggered resistance from the Senate Foreign Relations Committee.

The third option, whose legality and availability are the focus of this Article, would be to treat the Senate’s pre-existing resolution of advice and consent as still operative. The President could therefore rejoin the international agreement as a treaty, but without having to go again to the Senate for advice and consent. This approach would presumptively put rejoining on equal footing with withdrawing in terms of the domestic legal process. The presumption would be overcome, however, if rejoining would be inconsistent with the language of the original resolution, with any modifications to this resolution made by two-thirds of the Senate, or with an intervening congressional statute. The President’s ability to rejoin the treaty would also be contingent on this being an available option at the international level.

The doctrinal basis for treating original Senate resolutions of advice and consent as still operative rests on these resolutions’ text, on broader constitutional practice, and on structural principles. As a textual matter, while the Senate often puts substantial conditions into its resolutions of advice and consent, it typically does not include language that renders them ineffective for purposes of rejoining. As a matter of constitutional practice, while there is no specific practice on point for the issue of rejoining, two related strands suggest that the original resolutions should be taken to remain operative. First, these resolutions are already understood to remain operative well after the end of the Senate session in which they are passed, as the executive branch often does not ratify treaties until years after the Senate’s advice and consent has been given. Second, with respect to international agreements other than treaties that rely on some form of congressional authorization, the executive branch has used pre-existing authorizations as a basis for rejoining such agreements following withdrawal. In 2003, for example, President George W. Bush rejoined the United States to UNESCO (from which President Reagan had withdrawn the United States) in apparent reliance on the statutory authorization that has justified the initial U.S. entry into UNESCO many years earlier.¹⁷ 17.See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration).Show More Finally, as a structural principle, treating original Senate resolutions of advice and consent as remaining effective prevents the President from being singlehandedly able, through withdrawal, to undo the actions of a coordinate branch. It is one thing for the President to be able to withdraw the United States unilaterally from a treaty—after all, the President has unilateral discretion over whether to ratify the treaty. It is quite another thing for the President thereby to effectively erase a Senate resolution, unless the Senate or Congress expressly authorized this result.

The claim that a President can rely on the initial resolution of advice and consent to rejoin a treaty fits into a broader framework for the distribution of foreign affairs powers. Foreign relations law rests in an uneasy space between contrasts—foreign and domestic, congressional and presidential, flexible and constrained. A long-standing strand of scholarship raises concerns about the rise of presidential power and about the implications of this rise for U.S. international engagement.¹⁸ 18.For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018).Show More The approach advocated for here in some ways both advances presidential power and brings uncertainty to international law. It advances presidential power by advocating an understanding of Senate resolutions that gives the President the power to treat them as ongoing authorizations, and it brings uncertainty by creating a pathway whereby presidents can zig-zag their way through treaties, if they so choose. In other ways, however, the approach advocated for here both serves as a check on presidential power and a mechanism for continuing international engagement on the part of the United States. For a legal framework in which the President can unilaterally withdraw from a treaty but not unilaterally rejoin it would be a legal framework that puts a heavy thumb on the scale against international engagement and that limits rebalancing by a future President. The approach advocated for here, by contrast, relies on a broader, developing alignment between U.S. foreign relations law and U.S. administrative law. In both cases, the executive branch wields considerable power, but in both cases the decisions of one administration can be revisited by another administration and thus are subject to the long-term checks of democracy.

In terms of structure, this Article has three parts. Part I is descriptive, identifying existing law and practice with respect to treaty formation and withdrawal. Part II is the core of the Article. It elaborates on and defends the doctrinal argument sketched above with respect to treaty rejoining. It argues that Senate resolutions of advice and consent can constitutionally authorize rejoining and, as a matter of their interpretation, should presumptively be read to do so. It also discusses limitations stemming from domestic law, international law, and international relations that might prevent rejoining with respect to particular treaties. Finally, it assesses the practical effect of a presidential power to rejoin treaties and emphasizes that this power is much more likely to be workable with respect to multilateral treaties which are open broadly to membership than with respect to bilateral treaties, which cannot be re-established without the consent of the other nation. Part III situates the doctrinal argument made in Part II within a broader theory of the constitutional distribution of foreign affairs powers.

1. * Professor, University of Pennsylvania Law School. I thank Curt Bradley, Sue Biniaz, Arancha Hinojal Oyarbide, and Duncan Hollis for their generous and thoughtful comments on earlier drafts, as well as participants at the Penn Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Biddle Law Library at Penn Law. Finally, I thank the editors of the Virginia Law Review, especially Justin Aimonetti, Nicholas Allen, Nicole Gilson, and Amanda Swanson for their careful editing. All views and any errors are my own. ↑

2. Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”). ↑
3. E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017). ↑
4. Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”). ↑
5. Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order). ↑
6. Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019). ↑
7. Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW. ↑
8. See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions). ↑
9. Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe). ↑
10. E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018). ↑
11. Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986). ↑
12. Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point). ↑
13. Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012). ↑
14. For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97. ↑
15. See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power). ↑
16. Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements). ↑
17. This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law. ↑
18. See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration). ↑
19. For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018). ↑

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