Winkler’s chief contribution is to show how corporations have been some of the most important innovators in American law, shaping it for good and often ill ... Winkler frames this history provocatively, as an ongoing 'civil rights' movement for corporations, which 'have pursued a longstanding, strategic effort to establish and expand' their rights in American constitutional law. He proves his thesis by recounting two dozen critical moments when corporations pushed the limits of existing law and mostly won new rights ... Winkler’s book provides a masterful retrospective map at a time when people are feeling bewildered and enraged by growing corporate power. In essence, he offers an important answer to the question 'How did we get here?'
Winkler’s deeply engaging legal history, authoritative but accessible to non-lawyers, takes readers inside courtrooms, judges’ chambers and corporate offices as he reconstructs 200 years of case law. The book offers new takes on familiar stories ... This meticulous, educational and thoroughly enjoyable retelling of our nation’s past leads to Winkler’s argument: Citizens United, however wrongly reasoned, was not an aberration in American law. Rather, it marked the culmination of a 200-year campaign, waged by well-funded corporate elites, to bend the law in their favor ... We the Corporations leaves no doubt: America has been pro-corporate and elitist from the beginning.
We the Corporations is a must-read for anyone interested in the corporate rights debate. As Winkler notes, Citizens United is one of the Supreme Court’s most controversial decisions. Yet most people who criticize (or praise) the Court’s decision don’t understand the backdrop on which it was based. Winkler advances an important and powerful point: corporations held most of the same rights as natural persons long before Citizens United. Winkler’s account also leaves us with some important issues that warrant further consideration ... Winkler’s thought-provoking tale leaves readers to reflect on what, if anything, should be done about the corporate rights movement ... it will make you think critically about one of the most consequential yet understudied civil rights movements.
Is a corporation an artificial 'person' with rights and duties independent of its members? Or is it a collection of people associating with one another? And, in turn, what constitutional rights protect it? As UCLA law professor Adam Winkler details in We the Corporations, the controversy is as old as the republic itself ... Throughout his narrative, Mr. Winkler describes corporations as 'constitutional first movers.' It is a generous sentiment but not entirely accurate. Often the true first mover was a government asserting coercive power; the corporations who defensively asserted constitutional rights were 'second movers,' or perhaps 'first responders.' It is possible that the court’s decision in Citizens United, bolstered by Hobby Lobby’s successful challenge, on religious-liberty grounds, to ObamaCare’s contraception mandate, has cemented the status of corporations as 'persons' enjoying broad constitutional liberty. If so, those now denouncing the court for such pro-corporate decisions might find themselves happily adapting to the new normal. Mr. Winkler’s book teaches that the history of corporate rights is replete with ironies.
Winkler’s greatest strength as a writer is his capacity to convey detailed legal arguments in surprisingly pleasurable prose—no small accomplishment. But at some points, as though carried away by the sheer fun of legal argument, he seems to suggest that the best way to counter the expansion of corporate rights would simply be to take corporations at their word and treat them as people. That would not mean saying they can do as they please ... This emphasis runs counter to the rest of the book, which is otherwise so good at making the argument that the legal rights that are associated with the corporate form reflect something about social power ... Throughout the book, the reader is reminded that the law is neither steady nor fixed, but that it is created over time. What really matters—more than the specific doctrine of 'corporate personhood'—is the people who stand behind the corporation, who have waged a long campaign to use the legal form to augment their political power and their economic might.
Beginning with the close relationship between corporate governance and the development of democracy in colonial America, he explores how each period in American history saw new battles over corporate constitutional rights and why the courts have generally favored their expansion, and he closes with a discussion of the current legal landscape. Along the way, he presents a wide range of vividly drawn historical figures, bringing their philosophies, tactics, debates, and shenanigans to life while allowing readers to assess the ethics and implications of their work.
...Winkler offers a balanced guide to a controversial constitutional issue, and succeeds in showing that the issue is far more nuanced than advocates on either side care to admit ... Winkler is critical of the proposition that corporations should receive constitutional protections because they are associations of individuals who enjoy the same ... He is less clear, however, on what basis he thinks the courts should decide the latter question ... Perhaps the most important lesson of Winkler’s book is that we should have seen Citizens United coming. It did not spring, fully formed, from the head of Justice Anthony Kennedy, much less Zeus; it has deep roots in our nation’s constitutional and economic history. And its premises are not self-evidently wrong ... Winkler’s careful history will help us do a better job of getting it right about what Citizens United got wrong.
He somewhat overstuffs the book with facts and backstory, some of which are only tangential to his project, but all are worthy of attention. Winkler employs an evocative, fast-paced storytelling style, making for an entertaining and enlightening book that will likely complicate the views of partisans on both sides of the issue.
Untruths and half-truths abound in the author’s...discussion of arguments advanced before—and increasingly accepted by—American courts ... Maddening for those who care about matters constitutional and an important document in the ongoing struggle to undo Citizens United.