Citizens United and Tiered Personhood

Atiba R. Ellis, Citizens United and Tiered Personhood, 44 J. Marshall L. Rev. 717 (2011).

Abstract:  Citizens United v. FEC has generated a great deal of popular and scholarly debate about the impact constitutionalized corporate personhood may have on American democracy. Despite the robustness of this debate, few, if any, contributions to it have been made from the perspective of critical legal theory. To fill this gap, this paper attempts to address the Citizens United and American democracy problem by drawing upon critical legal studies and critical race theory to describe the contours of political personhood: the process of allocating and denying constitutional rights to natural persons to enforce a scheme of tiered constitutional personhood in America. This paper then locates Citizens United as the latest case within this long line of political personhood cases in as much as the Citizens United decision granted corporations political personhood in one fell swoop. The paper concludes by suggesting the possibility that Citizens United may be remembered for opening a new period of tiered legal personhood in American democracy where the rights of corporate persons may effectively gain more importance than the rights of natural persons, while at the same time this allocation of privilege may replicate the patterns of white male privilege which lie at the heart of the traditional political personhood cases.

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