Adam Winkler, UCLA law professor and author of “We the Corporations.”

Corporate personhood, the idea that corporations enjoy the same constitutional rights as people, is experiencing a heyday. The topic has been thrust into public dialogue following the U.S. Supreme Court's 2010 and 2014 rulings in Citizens United and Hobby Lobby, respectively, which hinged quite a bit on the idea of extending individual rights guaranteed in the Constitution to corporations. In its wake, protests like Occupy Wall Street that erupted spurred demands for an amendment that would abolish corporate personhood.

While the idea of corporate personhood is enjoying its time in the spotlight, it's actually an idea rooted in America's founding, aided by more than 200 years of Supreme Court judicial review.

University of California Los Angeles law professor and author Adam Winkler walks through a detailed account of that history in his latest book, “We the Corporations,” demonstrating how some of those individual liberties Americans value the most were breathed into life by corporations seeking to protect their interests by shielding themselves from government regulations.

“[C]orporations have often been constitutional innovators,” Winkler said during our chat. “[S]ome of the constitutional rights we hold most dear today were first given life in the courts in cases brought by corporations.” They include cases brought by newspaper corporations “striking down laws for violating the First Amendment.” Other cases brought by business corporations fighting regulation were “some of the earliest cases on the Fourth and Fifth Amendments rights against unreasonable searches and seizures and rights against self-incrimination.”

This interview has been edited for clarity and length.

The National Law Journal: What compelled you to write this book and what was the most surprising thing you learned while conducting your research for it?

Adam Winkler: I was spurred to write the book by Citizens United and Hobby Lobby. These two controversial cases that said corporations had the same rights as people. I wanted to look into the history of that idea. And the most remarkable thing I found in researching “We the Corporations” is that corporations have been fighting to secure the individual rights guaranteed by the Constitution since America's earliest days. The first Supreme Court case on whether corporations had rights under the Constitution was decided in 1809 [Bank of the United States v. Deveaux]. To put that in some perspective, the first Supreme Court case on the rights of African-Americans was not decided until 1857; the first Supreme Court case on the rights of women was not decided until 1873. Corporations have compiled an eye-popping 200 years of success in the Supreme Court, claiming an ever-larger share of constitutional rights.

NLJ: You mention in the book that judicial review is known for vindicating civil rights for minorities, but you say it has an even longer history establishing corporate rights for businesses. Can you talk about judicial review's role in expanding corporate rights?

AW: Judicial review is the most important power of the Supreme Court. It authorizes the court to strike down laws that violate the Constitution. The court has most famously used this power to declare an end to racial segregation in Brown v. Board of Education; or to extend to women the right to choose abortion in Roe v. Wade. But in fact the court has used the power of judicial review to expansively protect corporations for far longer. When corporations have found themselves subject to unwanted taxes and regulations, they have invited the court to exercise that power of judicial review to overturn those regulations.

NLJ: In one of those earliest cases in Dartmouth College v. Woodward, former U.S. Supreme Court Chief Justice John Marshall's opinion emphasizes public versus private: The government did not create corporations, people did. And they did so to pursue private purposes, not public ones. What's your take on that?

AW: Before the Dartmouth College case, it was unclear whether a corporation was a private entity, as we understand them now, or a public entity created by the government. You needed a special charter from the government to create a corporation. So it wasn't clear whether government was a public entity or a private entity. The Dartmouth College case answered that question by saying that corporations are private entities, that like individuals can have constitutional rights, rather than a public agency, which would not have rights.

NLJ: Does a middle ground exist between proponents of corporate personhood and those who believe Citizens United and Hobby Lobby went too far?

AW: Absolutely. It doesn't have to be that corporations have all rights or no rights. And in fact, for most of American history corporate constitutional rights were not very controversial. In part because the court only extended property rights to corporations. In recent years, with cases like Citizens United and Hobby Lobby, the Supreme Court is expanding what we might think as liberty rights, rights associated with personal conscience and political freedom, to corporations. And this is much more controversial.

NLJ: Are there any current cases you're watching that intersect with the issue of extending liberty rights to corporations?

AW: Corporate rights are involved in one of the biggest cases before the Supreme Court this term, over whether a baker can refuse to provide a wedding cake to a same-sex couple. While the case has engendered spirited public debate about the balance between freedom of speech and religion on the one hand and LGBT rights on the other, the case also deals with corporate rights. The lawsuit was brought not just in the name of the baker as an individual, but also in the name of his corporation: Masterpiece Cakeshop Ltd. And one of the people whose First Amendments are said to be burdened by the law is that bakery corporation. If the Supreme Court rules in favor of the baker, it will be giving corporations more expansive rights to discriminate on the basis of sexual orientation or same-sex marriage.

NLJ: Do you think we'll see more cases that seek to extend liberty rights to corporations?

AW: We are seeing an increasing number of lawsuits claiming expansive rights for corporations. We've seen in recent years corporations fighting living wage ordinances as a violation of their rights. We've seen corporations challenge labeling laws on things like genetically modified organisms and cigarette warnings, and we are likely to see such more cases in the future. The Supreme Court has given its endorsement to broad and expansive corporate rights, which encourages more corporations to seek expansive rulings protecting their interests.

At the same time, we're also seeing a bit of a backlash. The Citizens United ruling has triggered a substantial movement to amend the Constitution to end corporate rights. Sixteen states and hundreds of municipalities have called for Congress to enact a 28th Amendment to the Constitution that would declare that corporations are not people.

NLJ: To what degree would they be walking back corporate rights if they successfully enacted an amendment?

AW: While I'm sympathetic to those who want to amend the Constitution to end constitutional rights for corporations, I think such an amendment would be a mistake. Corporations need some of the rights protected by the Constitution. Corporations need a right of property so that the government doesn't take their assets without paying just compensation. Corporations need a right of due process, otherwise the government could simply declare a corporation guilty of a crime without a trial. And clearly media corporations, like The New York Times and Fox News, need a First Amendment right to freedom of the press. The problem with the constitutional amendment that's been floated is that it would deny all corporations all of these rights, and that just goes too far.

NLJ: What is the takeaway for practicing lawyers or for lawyers who take on these types of cases?

AW: The first and most important thing is to recognize how commonplace it is for corporations to seek constitutional rights. That we need to recognize the phenomenon before we can really understand its implications and potential reforms. For lawyers who are arguing for corporate rights, my book would suggest that their best avenue is not to claim that corporations are people, but rather to pierce the corporate veil and to look to the rights of the members, and that lawyers arguing in this space should not argue that corporations are people so much that they should argue that corporations are collections of people, associations entitled to all the rights that any association of people should have. And on the other side, those who are fighting against corporate constitutional rights might invoke corporate personhood as a way to limit constitutional rights.

So part of the takeaway is that our usual understanding of how corporations gain rights is wrong. And that a better understanding of how corporations gain these rights will help lawyers in the future both seeking expansive constitutional rights and seeking to limit constitutional rights for corporations.