Corporations Have Always Had More Rights Than You | EXPLAINER
Sources
Read the Delaware ruling: https://aboutblaw.com/blQg
These Truths by Jill Lepore https://bookshop.org/a/83711/9780393357424
Hals, Tom. “Delaware Court Upholds Voting by Companies in Small Town’s Election.” Government. Reuters, May 26, 2026. https://www.reuters.com/legal/government/delaware-court-upholds-voting-by-companies-small-towns-election-2026-05-26/.
LII / Legal Information Institute. “Legal Fiction.” Accessed May 29, 2026. https://www.law.cornell.edu/wex/legal_fiction.
Moore. “Addressing Questions Surrounding Hawaii’s Bold Move To Undo Citizens United.” Center for American Progress, April 29, 2026. https://www.americanprogress.org/article/addressing-questions-surrounding-hawaiis-bold-move-to-undo-citizens-united/.
Payne, Russell. “A Battle over Dark Money Is Brewing in Hawaii and Montana.” Salon.Com, May 28, 2026. https://www.salon.com/2026/05/28/a-battle-over-dark-money-is-brewing-in-hawaii-and-montana/?utm_source=website&utm_medium=social&utm_campaign=ogshare&utm_content=og.
Reed, Brad. “‘Big News’: Hawaii Targets Citizens United With Law Clarifying Corporations Are Not People.” Common Dreams, May 15, 2026. https://www.commondreams.org/news/citizens-united-law-hawaii.
“SB2471.” Accessed May 29, 2026. https://www.capitol.hawaii.gov/sessions/session2026/bills/SB2471_.HTM.
Scherer, Michael. “Hawaii vs. Citizens United.” The Atlantic, May 14, 2026. https://www.theatlantic.com/politics/2026/05/hawaii-corporations-political-money/687159/.
Torres-Spelliscy, Ciara. “The History of Corporate Personhood.” Brennan Center for Justice. Accessed May 29, 2026. https://www.brennancenter.org/our-work/analysis-opinion/history-corporate-personhood.
Wilkins, Brett. “‘Logical Conclusion’ of Citizens United as Delaware Judge Lets Corporations Vote in Local Elections.” Common Dreams. Accessed May 29, 2026. https://www.commondreams.org/news/corporations-can-vote-in-delaware.
Transcript
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Hi it’s Friday, May 29th, 2026, you’re tuned in to Why, America? I’m your lawyer friend, Leeja Miller. On Tuesday, a state court in Delaware ruled that corporations have voting rights and there’s nothing you can do about it. Despite the fact that the ruling impacted a tiny town of 400 people called Fenwick Island, the ruling made international headlines because it doesn’t take a great legal mind to see how absolutely fucking ridiculous it is that a business entity should have rights on par, equal to the rights of actual human beings. This case offers a clear example of how legal reasoning and precedent butts up against basic common sense and morality in ways that are hard to stomach. What happens when the word of the law doesn’t feel like justice at all? Today we’re breaking down that ruling, plus legal personhood for business entities and why the fuck it feels that for all intents and purposes businesses have MORE civil rights than living breathing human beings.
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Tuesday’s ruling was handed down by the Superior Court of the State of Delaware. It was a case brought by the American Civil Liberties Union of Delaware against the town of Fenwick Island, population 400. And while 400 human people live there, a total of about 12% of the town’s eligible voters are non-human business entities that call Fenwick “home” because they own property there. A key point here that gets lost in the headlines is that business entities have been allowed to vote in Delaware just like humans for a while, this isn’t a new law that was created with this ruling or just started being practiced. And this is notable because Delaware is home to about twice as many business entities than there are humans because of favorable business laws there.
Back in 2008, Fenwick Island’s charter was amended to allow individuals to cast votes on behalf of trusts, LLCs, partnerships, and corporations, so long as the business entities own property in Fenwick. The Fenwick charter says, in regards to non-residents of Fenwick, “every property owner, whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote, shall have one vote. … These provisions shall be construed in accordance with the principle of one person/entity, one vote.” Further, the charter requires that the person casting the vote on behalf of the business entity must have power of attorney, must be 18, and must be a citizen of the United States. So, just so we’re clear, that means everyone who has property gets one vote AND everyone who has power of attorney for a business entity that owns property there gets one vote. If you own two properties, you only get one vote, but if you as an individual own a property there AND you have power of attorney for a business entity that owns property there, you get two votes, technically. Because one of your votes counts as a separate vote for the separate legal business entity. That in itself should alert you to how disingenuous it is to claim that business entities innocently are just being given the same one person, one vote rights as everyone else. The very nature of the setup means that some people have more power than others, because only non-residents with the money to start a business in Fenwick that owns property get to have that extra business vote. But we’ll get into the “legal fiction” of corporate personhood in a second.
The ACLU of Delaware challenged the charter on the grounds that it violates the Elections Clause of the Delaware Constitution by way of vote dilution. Meaning the votes of human beings are being diluted by the votes of business entities. Now just so we’re all clear on the basics of how our legal system functions: Because this is a state issue based on a state law, we’re looking at the state’s constitution. That being said, federal pre-emption means that a state constitution cannot violate the federal constitution. It can be different than the federal constitution, but it cannot restrict rights and freedoms that are guaranteed under the federal constitution.
The Delaware Constitution’s election clause says, in its entirety, “All elections shall be free and equal.” So then the question becomes what does “free” mean and what does “equal” mean. The judge pretty quickly does away with any contention that the elections in Fenwick aren’t “free” because case law has established that “free” elections simply mean open without encumbrance, no one is being hindered from access to voting. “Fair” on the other hand gets a bit more discussion in this 20-page decision. But here, too, the judge concludes that nothing supports an argument that these votes aren’t “fair.” He says that “Plaintiff does not argue that Defendant gives entity property owners any special treatment in voting, that voting in Fenwick on behalf of entity property owners involves racial discrimination or malapportionment of voting districts, or that natural persons’ votes are not equal in influence, count less than, or are not as effective as every other ballot.” Therefore, the judge concludes, the elections are also fair and, therefore, fully comply with the Delaware constitution’s requirement that elections be free and fair.
The judge goes on to address the ACLU’s argument related to the definition of “personhood” and that artificial business entities aren’t persons by any general understanding of what a person is. However, as the judge notes, under the law of Delaware, they are still technically people. The judge cites to a legal treatise that says that the term “person” at common law, meaning judge made law, usually understood to be the old timey law brought over from ye olde England by our forefathers, includes both natural and artificial persons, including corporations, saying quote “The general tendency and policy of legislatures and courts has been to treat corporations, as far as their inherent nature will permit, on the same footing as individuals.” So under the Delaware Charter, the Delaware Constitution, and commonly understood laws and norms about “personhood,” the votes of business entities are protected. But what about the US Constitution?
The ruling addresses the idea of “equal protection” which is extended to state laws under the 14th Amendment of the US Constitution. There, too, the judge decides that the ACLU hasn’t sufficiently claimed that the human population of Fenwick’s constitutional rights have been violated, saying that there’s no claims of discrimination, that natural person voters are a minority, that some votes count more than others, or that there’s any discriminatory intent in the Fenwick charter that prevents humans from voting, so there’s nothing in the equal protection clause or its jurisprudence to preclude the ability of business entities to vote in Fenwick’s elections. And the judge concludes there’s no legal authority that supports the ACLU’s claims, and any issues of policy, what the law SHOULD say, should be left to legislative bodies, not the courts, and therefore the lawsuit is dismissed.
And here’s the thing, as unjust as this ruling seems, I don’t think it’s the incorrect legal conclusion to draw, based on existing laws. Judges, especially not low level state court judges, are not here to make and write laws. They simply interpret the laws. That CAN lead to sweeping legal changes, but at least in theory it is the role of the legislature to actually write the laws and set legal policy, because they are most answerable to the people. So it shouldn’t be a judge’s role to say hey let’s question hundreds of years of jurisprudence, that is legal precedent and case law, because this doesn’t FEEL right. It should be the legislature that says hey just as like a policy this feels wrong and we don’t think that business entities should have all the rights that human beings have, that feels wrong. But that would require our lawmakers to, I don’t know, NOT be beholden to business interests and the interest of capital accumulation, and that is something that has never once been true in the history of the existence of this country. Our lawmakers have ALWAYS been beholden to capital above all else.
Many are pointing to Citizens United, the 2010 Supreme Court case that said corporations have free speech rights and “free speech” includes spending money on influencing elections and therefore curbs on spending money on elections infringes on private company’s free speech rights, many people are pointing to that ruling and saying this idea that businesses can vote is the logical conclusion of Citizens United. The problem is that Citizens United was decided in 2010. The Fenwick charter was changed to allow businesses to vote in 2008. And businesses have had civil rights for literally centuries. This is not a bug it’s a feature.
It was established as a “legal fiction” back in the 1700s that corporations and other business entities have personhood. A “legal fiction” is something that a court of law accepts as fact that isn’t exactly true but allows for laws to function properly. So, for example, a business needs to have a certain amount of quote unquote “personhood” because we want to be able to sue them in court, but it also means they’re able to own property, enter into contracts, etc., just like a human being. In order for businesses to function under the law as written, they have been given “personhood” to exist as an entity similar to that of an actual human person who, similarly, can sue and be sued and own property and enter into contracts, etc. So for those of you keeping track at home that means that non human business entities have had MORE rights than women and people of color for most of the history of the United States. Women couldn’t enter into contracts or own property LONG after business entities could.
Okay but for a long time that non-human business personhood was limited to things like holding property and entering into contracts. Then the Civil War happened, and the 14th Amendment was written, which states that no state shall deprive any PERSON of life, liberty, or property without due process of law, nor deny to any PERSON the equal protection of the laws.” And even though that amendment was passed in the aftermath of a bloody civil war in order to protect the rights of formerly enslaved people, and others, it has been abused LITERALLY ever since it was written by businesses.
As I’ve mentioned in past videos I am currently reading These Truths, the 2018 book by Jill Lepore YES I’m still reading it ok it’s literally a thousand pages long, I highly recommend it. Let me read you a rather interesting passage from this book–it’s long but I promise it explains a lot about the current state of this country:
“In 1877, railroad workers protesting wage cuts went on strike in cities across the country. President Hayes sent in federal troops to end the strikes, marking the first use of the power of the federal government to support business against labor. The strikes continued, with little success in improving working conditions. Between 1881 and 1894, there was, on average, one major railroad strike a week. Labor was, generally and literally, crushed: in a single year, of some 700,000 men working on the railroads, more than 20,000 were injured on the job and nearly 2,000 killed.
The lasting legacy of this battle came in the courts. When state legislatures tried to tax the railroads, as California did, federal judges eagerly entertained arguments that such taxes were unconstitutional–even going so far as accepting the argument that such laws violated the rights of corporations as “persons.” In 1882, Roscoe Conkling represented the Southern Pacific Railroad Company’s challenge to a California tax rule. He told the US Supreme Court, “I come now to say that the Southern Pacific Railroad Company and its creditors and stockholders are among the ‘persons’ protected by the Fourteenth Amendment.”
Conkling, aside from having been a senator and a presidential candidate, had twice been nominated to serve on the US Supreme Court (he’d declined, unwilling to bear the loss of his income as a corporate attorney). In offering an argument about the meaning and original intention of the word “person” in the Fourteenth Amendment, Conkling enjoyed a singular authority: he’d served on the Joint Committee on Reconstruction that had drafted the amendment and by 1882 was the lone member of that committee still living. With no one alive to contradict him, Conkling assured the court that the committee had specifically rejected the word “citizen” in favor of “person” in order to include corporations. (A legal fiction that corporations are “artificial persons” dates to the 18th century.) It’s true that “the rights and wrongs of the freedmen were the chief spur and incentive” of the amendment, Conkling allowed, but corporations had been on the minds of its drafters, too. A New York newspaper, reporting that day’s oral arguments, headlined its story “Civil Rights of Corporations.”
Much evidence suggests, however, that Conkling was lying. The record of the deliberations of the Joint Committee on Reconstruction does not support his argument regarding the committee’s original intentions, nor is it plausible that between 1866 and 1882, the framers of the Fourteenth Amendment had kept mysteriously hidden their secret intention to guarantee equal protection and due process to corporations. But in 1886, when another railroad case, Santa Clara County v. Southern Pacific Railroad, reached the Supreme Court, the court’s official recorder implied that the court had accepted the doctrine that “corporations are persons within the meaning of the Fourteenth Amendment.” After that, the Fourteenth Amendment, written and ratified to guarantee freed slaves equal protection and due process of law, became the chief means by which corporations freed themselves from government regulation. In 1937, Supreme Court Justice Hugo Black would observe, with grim dismay, that, over the court of fifty years, “only one half of one percent of the Fourteenth Amendment cases that came before the court had anything to do with African Americans or former slaves, while over half of the cases were about protecting the rights of corporations.” Rights guaranteed to the people were proffered, instead, to corporations.”
End quote.
The Brennan Center wrote an article back in 2014 that crystalizes the connection to today. Quote “Dissenting in Wheeling Steel Corp. in 1949 Justice William O. Douglas and Justice Hugo Black noted that the corporate personhood issue was not such an open and shut case: “[In Santa Clara] [t]here was no history, logic, or reason given to support that view. … [T]he purpose of the [14th] Amendment was to protect human rights-primarily the rights of a race which had just won its freedom.” Justices Douglas and Black thought the question of corporate personhood should be decided by the people, not the Supreme Court. But they could not convince their fellow Justices.
In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. The Court relied on Santa Clara’s reading when it stated that “[i]t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” Again Rehnquist could not convince his brethren.
In Citizens United, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation,” they cited Bellotti. Thus it’s only a hop, skip and a jump from Santa Clara to Citizens United.” End quote.
The reality is that the decision in Delaware to uphold corporations’ right to vote is the logical conclusion of centuries of laws that were written by powerful, wealthy, land owning white men in order to keep their power. That is the basis and foundation of the laws in this country, brought here by white men from England, based on laws written to benefit landed white men there. We have spent hundreds of years tweaking those laws, attempting to expand them to include protections and rights for more people besides just landed white men, but at its core, the foundation of all laws in this country is based on protecting the rights of wealthy white men, period full stop. And this is ancient history but it is also impacting us every day, including in that Delaware case, in Citizens United and its progeny. It’s also abundantly clear that it is being perpetuated in the legal field as well. Upper class service providers, the lawyers and accountants of the world, their principal role is to protect the wealth of the upper classes. That is what you are taught in law school and that is what you are tested on to get your law license. You have to know about family law to protect the property of the people getting divorced, typically the man is the one with the assets of course, you have to know about “secured transactions” in order to understand about business loans, you have to know about property law in order to understand how to transfer property between rich people effectively, you have to know about criminal law in order to understand and respect the power of the state to take away your rights, you have to know about estate planning which is something that mainly benefits wealthy people because you don’t have much estate planning to do if you don’t have money and property that needs to be handled after you die, ALL of it is to benefit wealthy white men, all of it was written by wealthy white men, ALL of it usually originates from a deeply racist, sexist legal history that has had to be rewritten as people of color and women have had to fight to be included in legal protections and even when they have won those protections, like in the case of the 14th amendment, you have wealthy white men figuring out how to exploit those, too.
And that fight, to try to claw back rights from rich white men, continues. Earlier this month, Hawaii passed a law, SB 2471, limiting the scope of “personhood” for artificial entities in the state. The law says, quote “The legislature finds that all political power in the State of Hawaii is inherent in the people, and that the creation of a corporation or other artificial legal entity is a privilege granted by the State, not a natural right. … the State possesses plenary authority to determine the powers and capacities of the artificial persons it creates. This Act exercises that authority to restate and limit the powers that the State grants to corporations … the purpose of this Act is to reaffirm that artificial persons created under Hawaii law possess only those powers that are necessary or convenient to carry out lawful business and charitable or organizational purposes, and that those powers do not include the power to spend money or contribute anything of value to influence elections or ballot measures.” Basically, Hawaii is taking back its power from the federal government and saying hey actually the states have the power to control what companies can and cannot do, you don’t register and do business in the federal government, you register and do business in the state, the state has ultimate say over what corporations are allowed to do, and according to legal scholars this doesn’t violate Citizens United because there is no case that actually addresses whether a state MUST grant political spending power, Citizens United struck down a FEDERAL regulation that barred a corporation from spending on elections, it didn’t address whether a state MUST grant political spending power in the first place. The Center for American Progress notes, however, quote “The bill does not get rid of super PACs. But it does stop the one-two punch of dark-money groups giving to super PACs, which is what has been hiding the source of huge sums of money for the past 16 years.
The bill stops corporations—no matter where they’re from—from spending in Hawaii’s politics. This includes the dark-money groups that hide the people, corporations, and special interests that give to them. So super PACs would still be able to spend in Hawaii’s politics, but they could only spend money they’ve received from human beings. Any “outside forces” spending in Hawaii’s politics would be human—with their names disclosed.” So basically, this law is sidestepping the question of free speech altogether by saying hey look these business entities are created by state law, full stop, and therefore whatever rights and privileges are given to them by the charter in the state that created them precedes any rights granted to them under the US constitution. So if the state doesn’t give them the right to spend money on elections, then they explicitly never had that right to begin with, they weren’t endowed by their creator with that right. It’s a novel legal concept but it's picking up steam as more and more people realize that Citizens United isn’t going away and that the constitutional amendment necessary to make it go away is all but impossible in a country that’s so divided it can’t agree on anything, let alone get a super majority on board. The Hawaii law is based on a model law developed by Tom Moore at the Center for American Progress. The same or similar law has been introduced in 15 different states this year, but Hawaii was the only one that managed to pass it–so far. Activists in Montana are collecting signatures to try to get the issue as a ballot initiative in November and are only about 1000 signatures away from meeting the requirements. Hawaii’s Attorney General did not support the passage of the law because she’s certain it will be challenged in court, at great expense to the state. But in Montana, the Supreme Court there has already heard a challenge to the law and found in favor of upholding it, saying it wasn’t an infringement of rights, because the law only speaks to powers and not rights and does not expressly revoke any constitutional rights. If more states pass this law or Hawaii’s law is challenged in court, it may make its way up to the Supreme Court, which we can’t really trust to do anything particularly progressive, so it’s an uphill battle. The law also only addresses a small sliver of campaign spending and doesn’t override the centuries of law that has been, generally without fail, more protective of the rights of businesses than of the rights of most human beings. The recent ruling in Delaware upholding the rights of businesses to vote is not an anomaly, it is a longstanding feature of a broken system.
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And if you liked this episode, you’ll like my episode from Tuesday about the hunger strike currently happening at Delaney Hall detention center in New Jersey.
