A CORPORATE CIVILIZATION

In the wake of the recovery of Justinian's Digest and the Roman law of corporations in the 11^th century, Europe was gradually reorganized as a civilization of corporations—a dense web of monasteries, bishoprics, confraternities, universities, towns, communes, and guilds that governed the associational life of an energized Europe (Davis Reference Davis1905). Making use of a legal form unknown or unavailable elsewhere, these corporations filled, and then overflowed, the organizational niche occupied by clan networks in other civilizations, after Christianity undermined clan ties in the West (Goody Reference Goody1983; Greif Reference Greif2006). Ever since, the corporate form has been the distinctive way in the West of constituting, organizing, and augmenting collective power, with profound and enduring consequences for the structure and trajectory of Europe, and eventually the world, not only by paving the way for the modern business corporation, but by giving a distinct form to other key European institutions, including the Catholic Church and the European state, which were for long themselves modeled as corporations (Gierke Reference Gierke1900; Kantorowicz Reference Kantorowicz1997; Tierney Reference Tierney1955; Reference Tierney1982).

Over the past century, the impact of the corporate form on the business firm has garnered the lion's share of scholarly attention. In contrast, the impact of the corporate form on the European and American state is today barely recognized.Footnote ¹ Yet it has been deep and enduring, and largely accounts for what is distinctive about the state forms generated in the West.

The Digest, medieval Europe's central legal text, declares that corporations (in Latin, universitates) exist “on the model of the state” (ad exemplum rei publicae) (Reference Justinian, Watson, Mommsen and Krueger1985, 3.4.1). Europeans, short on juridical models for their nascent states, turned this around and, to a surprising degree, modeled their states on the corporation. However, unlike today's business corporations—wherein one group of individuals, the shareholders, elects a board that exercises authority over another group of individuals, the employees—medieval corporations were typically member corporations (universities, towns, guilds, and cathedral chapters), whose members elected a rector, or mayor, or guild master, or bishop, to exercise government over themselves (although sometimes over others as well). Operating (in Hobbes’ tinted words) as “many lesser Common-wealths in the bowels of a greater, like wormes in the entrayles of a naturall man” (Reference Hobbes1991, chap. 29), they carried into the bosom of Europe's monarchies principles and practices of republicanism and mixed constitutionalism, including popular sovereignty, equal membership, simple majoritarian election, political representation, political consent, written constitutions, and the notion of the “ruler contract,” the heart of social contract theory.

It was borrowings from these corporate principles and practices that ultimately produced, in the Anglo-American line of development especially, the liberal democratic state—a state with juridical personhood (Runciman Reference Runciman2000), a representative assembly (Post Reference Post1943), an elected executive (Tierney Reference Tierney1982), and liberal constitutionalism, with a written constitution and judicial review (Bilder Reference Bilder2006; Lutz Reference Lutz1998). The focus of the present article is on the corporate genesis of the last of these—modern, American-style constitutionalism, with a popularly authorized written constitution enforced through judicial review.

THE U.S. CONSTITUTION IS NOT A SOCIAL CONTRACT

In the common view, “[T]he Constitution was—is—a social compact,” or “social contract” (Henkin Reference Henkin1987, 265, 267; see also Graber Reference Graber2013, 26; Mueller Reference Mueller2016). In the view of Keith Whittington, the Constitution is “an actual contract” and, in the view of Randy Barnett, should at the least be interpreted through “contract law theory” (quoted in Graber Reference Graber2013, 26). Yet the more closely one looks, the less persuasive the contract metaphor becomes.Footnote ²

The social contract theorists of the 17^th and 18^th centuries, of which Locke is an exemplar, generally describe the origin of government as a two-step process (Gierke Reference Gierke1939).Footnote ³ The first step—the work of the social contract proper—is to constitute a civil society, or people, from out of individuals in the “state of nature” by binding them together as a corporate body with the capacity to legislate and act as a unit in at least basic ways, under majority rule of all members (without the mediation of representative bodies) (Locke Reference Locke1988, 332). Crucially—and every social contract theorist insists on this—this subordination to the will of the majority requires “the consent of every individual” (331). Many American founders subscribed to this view of how legally competent peoples are forged (Wilson Reference Wilson2007, I.635–6), although others held them forged also through lengthy shared history or through alliance in sanguineous warfare (Federalist, No. 2).Footnote ⁴ Regardless, the Americans of 1787 did not consider themselves to be in the state of nature. They were well past this stage, already addressing the world as a “People” in the Constitution's Preamble, already living under government, and they never considered it necessary to secure the unanimous consent of all individuals to put the Constitution into force.

The second step in the origin of government, included in most social contract theories, is the ruler contract, in which a corporate people uses its capacity for collective legal action to contract with, or commission, a natural person (or ruling family, or group) to provide standing government, with legislative, judicial, and executive powers (Locke Reference Locke1988, 354–66). But this, as James Wilson emphasized in his famed law lectures of 1791, does not describe the American founding either, since the people of the ratifying states were not contracting with any person or persons, but establishing a set of authoritative offices (Wilson Reference Wilson2007, I.712, 727)—an act wholly alien to social contract theory.Footnote ⁵ Indeed, were the Constitution a ruler contract, a new one would be needed at every change of office holder. Since American offices are not hereditary, the people could not simply contract with a family line.

In sum, the Constitution is neither a contract among individuals to form a people, nor a contract between a people and a ruler. Social contract theory simply does not capture the true lineage, or structure, or purpose, of the American Constitution.Footnote ⁶

Instead, the Constitution should be seen as a popularly issued corporate charter—an innovative but logical step in the tradition of sovereigns delegating governing authority by corporate charter. To spell this out a little more fully: in the mode of constitutionalism that the Americans pioneered—which, in basic form and function, has become the norm worldwide (Billias Reference Billias2009)—a sovereign (the people) promulgates a charter (a written constitution) that establishes a government with juridical personhood (the right to own property, contract, and appear in court in its own name) and with enumerated and limited powers. These limits are enforced, not by the sovereign directly, but by the sovereign's judiciary; however, the sovereign reserves the right to amend the charter should the sovereign reconsider the purposes, powers, or procedures of the government it created. Substitute “king” or “Parliament” for “people,” and this description of the formation and operation of modern constitutional government is indistinguishable from a description of the formation and operation of an 18^th century corporation.

The corporation and the modern constitutional state embody a common governance technology—a technology that began with the corporation and passed over to the state, and at the heart of which is the delegation of authority by written charter. This connection is less surprising than may first appear once it is recalled that the earliest and most influential American colonies, Virginia and Massachusetts, began as literal corporations: the Virginia Company and Massachusetts Bay Company. To catalyze modern, American-style constitutional government, only their chartering sovereign had to be changed (although more was changed than this).

This corporate pedigree of American-style constitutionalism is commonly missed, likely because our understanding of the corporation has changed. The first step in elucidating it, therefore, is to recover the 18^th century understanding of the corporation from subsequent liberal and libertarian reinterpretations of it as a private association—for example, as a glorified private partnership (Friedman Reference Friedman1970, 17) or, more generically, as a “nexus of contracts” (Jensen and Meckling Reference Jensen and Meckling1976; for critique, Ciepley Reference Ciepley2013; Robé Reference Robé2011; Stout Reference Stout2012). After this, the essay examines the three key components of American constitutionalism—popular sovereignty, a written constitution, and judicial review—and shows the debt of each to corporate practice. It then shows how Federalists synthesized the three into a new corporate mode of constitutionalism, which they used to frame a government uniting seeming irreconcilables—at once energetic and limited, republican and mixed, popular and antipopulist—yielding a corporate solution to the problem of arbitrary rule.

THE CORPORATION AS FRANCHISE GOVERNMENT

From the early modern period through the Enlightenment, corporations were seen not as private associations but as creations of the sovereign, with governmental powers. As defined in a late 16^th century Tudor tract, a corporation is a “unitinge of a Societie . . . into one bodie by the Prince or Soueraigne, havinge aucthoritie to make lawes and ordinances.” (quoted in Bilder Reference Bilder2006, 518). Two centuries later, the definition held. As presented by William Blackstone, the towering English legal commentator, widely read in America, and by James Wilson, a leading American legal commentator, leading participant in the Constitutional Convention, and future Supreme Court justice, a corporation is:

A body politic. . . “Corporations aggregate,” or member corporations, “consist of many persons united together” into an “artificial person,” or “body politic” (in contrast to a natural body), with a legal existence and rights separate from the individual persons composing it (Blackstone Reference Blackstone1893, I.294; Wilson Reference Wilson2007, II.1035).

Created by the sovereign. . . The creation of such bodies politic, argues Blackstone, belongs to the royal prerogative. “None but the king can make a corporation.” The king may grant the power to others, including to Parliament or even private persons, but “it is really the king that erects” (Blackstone Reference Blackstone1893, I.297). The king creates these bodies for specific, approved purposes, such as advancing religion, learning, or commerce, and to this end endows them with special rights (powers and immunities) (I.293), some of which the members of the corporation exercise individually (such as immunity from tolls) and others of which they exercise corporately (such as the legislative rights of the corporation, discussed next). The king's creation is done by declaration, in a royal charter or act of Parliament (I.296–7). A corporation can in turn be dissolved by the sovereign (the King-in-Parliament), even without cause (I.302–3). The only difference in America, is that the royal prerogative of creating corporations, and of reforming or dissolving them, was understood to have devolved at independence to the legislatures of the several American states (Wilson Reference Wilson2007, II.1036).

Exercising governmental authority. . . Incident to its creation, a corporation is vested by the sovereign with a variety of capacities, or powers, two of which give it the form and function of a government.

1. (1) Like a state, a corporation owns property, contracts, and pleads in court in its own name—that is, as a juridical person separate from all natural persons (Blackstone Reference Blackstone1893, I.297; Wilson Reference Wilson2007, I.636). The Digest singles out this corporate capacity as modeled on the state (Reference Justinian, Watson, Mommsen and Krueger1985 3.4.1).

2. (2) “Another and a most important power,” Wilson notes of corporations, “is the power of making by-laws. This, indeed, is the principal reason for erecting many of the bodies corporate.” The law of the land is too general to comprehend the specific activities and circumstances of corporate groups. “For this reason, they are invested with authority to make regulations for the management of their own interests and affairs” (Wilson Reference Wilson2007, II.1036). That is to say, the members as a body make supplemental laws for the conduct of the members as individuals (for example, setting standards of workmanship) (Blackstone Reference Blackstone1893, I.297–8), although they are also binding on nonmembers within the corporation's jurisdiction. Blackstone likens them to “municipal laws of this little republic” (I.293). The important point, with which Blackstone leads off his discussion of the corporation, is that these by-laws are legally enforceable, having the sanction of the sovereign. This distinguishes a corporation from “a mere voluntary assembly,” which cannot frame rules “which would have any binding force, for want of a coercive power to create a sufficient obligation” (I.293). A corporation, in other words, exercises legislative, judicial, and executive powers over its members (and sometimes nonmembers), by sovereign grant. This makes it, in Mary Sarah Bilder's lapidary phrase, “a particular type of delegated jurisdiction within the ‘King's exclusive prerogative’” (Reference Bilder2006, 516). This is aptly put; but it will pay to expand upon the special type of delegation involved, since it will reappear in the American constitutional system.

Delegated in special fashion by the sovereign. . . The sovereign's delegation of jurisdictional authority to an incorporated group is comparable to the medieval king's delegation of lordship over a fief to a vassal. Indeed, the early American corporate colonies, such as that at Massachusetts Bay, were expressly chartered as corporate fiefs (Charter of Massachusetts Bay 1629, 1). In the case of a corporation, jurisdictional authority is delegated to an artificial person, and to the members or officers who act in its name, rather than to a natural person. Nonetheless, acting as a mesne lord or as a corporation is equally classified by Blackstone as a “franchise,” that is, “a branch of the king's prerogative, subsisting in the hands of a subject” through “the king's grant.” Like lordships, corporations are part of the overall system of government established by the king (I.324; see also I.180–1). What is special about the delegation of a jurisdiction, whether to a natural or artificial person, is that it does not create a principal-agent relationship—whereby the sovereign, as principal, would exercise ultimate operational control—which is the usual type of delegation. Instead, ultimate control within the jurisdiction rests with the delegate (see also Blackstone on corporate counties, I.92). The jurisdiction as a whole may be rescinded by the delegator; individual decisions within it are not to be. In other words, a corporation is legally dependent, but operationally independent; a creature of the sovereign's constituting power (or “constituent power”), but not under the sovereign's command. This follows from franchising, and the government that it establishes might be termed a “franchise government” (Ciepley Reference Ciepley2013, 140, 151–2).

Limited by the law of the sovereign. .. The government of a corporation, although invested with authority by the sovereign, is not itself sovereign, but is limited in two main ways. First, a by-law “must not be contrary to the overruling laws of the state” (Wilson Reference Wilson2007, II.1036), else it is “void” (Blackstone Reference Blackstone1893, I.298)—a rule both commentators cite as being as old as the Twelve Tables of Rome (449 B.C.). Second, every corporation, having been established for specific purposes, has a duty to “fulfil the purposes for which it was formed” (Wilson Reference Wilson2007, II.1037; see also Blackstone Reference Blackstone1893, I.303) and to abide by any other restrictions noted in the charter of its creation (Blackstone Reference Blackstone1893, I.293). In other words, the members and officers of a corporation, rather than being agents of the sovereign, are instead fiduciaries to the corporate purposes authorized by the sovereign. Both limitations were enforced by the English and American courts (Bilder Reference Bilder2006, 518–35; Blackstone Reference Blackstone1893, I.302–3; Wilson Reference Wilson2007, II.1037).

And structured by the sovereign. What was the structure, the “constitutio,” of these corporate governments? “[W]hile there were hundreds of individual variations,” notes Brian Tierney, “medieval universitates [i.e., corporations] fell into two major groups,” which, allowing for “some slight oversimplification,” may be called “the Roman law model and the canon law model” (Reference Tierney1982, 26). Roman law was interpreted as prescribing majority rule among the corporate members, making the Roman corporation a simple democracy. Or, the members might elect a head, with executive and judicial functions, but this person was to implement the will of the members and remained accountable to them (Black Reference Black2003, 24–5; Tierney Reference Tierney1982, 26). These were Blackstone's “little republics.” All authority lay with the assembled members. This was the legal construction (to which medieval practice was not always faithful) that jurists placed upon guilds, towns, and lay universities (Black Reference Black2003, 24–5, 49–51).

The Roman corporation, however, was too democratic for the hierarchical Church to use, so canon lawyers adapted it, generating two new types, only one of which concerns us here—the canon law member corporation (of which the cathedral chapter of bishop and cathedral priests was the most important example).Footnote ⁷ The important underlying development is that the governmental structure of the corporation was no longer organized at the discretion of the members, but was mandated by the Church, giving it a “constitutional” status. In particular, Church canon law mandated that a corporation have a head (if a monastery, an abbot; if a cathedral chapter, a bishop; and so forth), with specified powers. Without a head, it could not legally act (except in limited ways during a vacancy). This head was elected by the members, as with a Roman corporation. However, election was for life, meaning the head was not accountable to the members. The head had discretion over quotidian matters; however, on the most important matters, the head and a majority of the members (although occasionally two-thirds) had to concur (Berman Reference Berman1997, 219; Moulin Reference Moulin1958; Tierney Reference Tierney1955, 106–31; Reference Tierney1982, 26–7). It was a “mixed government,” with authority shared between head and members.

Both of these corporate governance forms are mentioned by Blackstone (Reference Blackstone1893, I.294–5). But it is important to note that, as kings asserted more control over the incorporation process in the early modern period by requiring a royal charter, corporations moved beyond these stereotyped governance structures. By the early modern period, the structure of a corporation's government was, in its fundamentals, prescribed by the sovereign rather than by Roman and canon law. Charters mandating a board structure became common. But highly customized structures and procedures were also possible, as with the Alexandrine governance structure of the Dutch East India Company, chartered by the Dutch States-General (Steensgaard Reference Steensgaard and Aymard1982, 239–44). There was in principle no limit to the governmental intricacy that might be mandated in a charter issued by a sovereign.

In sum, the corporation in the late 18^th century was seen as a body politic, chartered by a sovereign, with a limited-purpose government under some degree of member control, exercising limited, delegated powers under the watchful eye of the courts. It is not hard to imagine that the corporation, so understood, might become a model for a liberal constitutional republic.

THE CORPORATION AS CONSTITUTIONAL MODEL IN EUROPE

Americans were far from the first to find constitutional inspiration in the workings of corporations. Beginning in the high Middle Ages, both the Roman and canon law corporations, with their legally defined governance structures and procedures, became important constitutional models for government in general, including at the highest levels, with even the largest of collectivities coming to be styled corporations. The Church was a corporation (Tierney Reference Tierney1955, 132–53); the empire was a corporation (Gierke Reference Gierke1900, 39–40); the kingdom was a corporation (Maitland Reference Maitland, Runciman and Ryan2003, 34); and the republic was a corporation (Canning Reference Canning1980). This was putting Digest 3.4.1 into reverse, modeling the state on the corporation. That this should be possible is no wonder. The prototype of all corporations, the municipality of Rome (Duff Reference Duff1938, 62), was also the Roman state (civitas). The forms of state and corporation—bodies politic with separate property and with jurisdictional authority—were cogenerated, and commingled again in the European Middle Ages.Footnote ⁸

The Roman law corporation, with its member majoritarianism, modeled republican government. It legally rationalized the republican governments of some of the Italian city-states (Canning Reference Canning1980), and inspired the view of the radical conciliarists during the Great Schism, that the pope is but a magistrate deposable at will by the Council, which represents the whole Church membership (Gierke Reference Gierke1900, 51–6; Tierney Reference Tierney1982, 59). It also acquired an important place in resistance theory, generating the theory of popular sovereignty and the ruler contract, as we will see in the next section. This was used to place a republican construction, first upon the Holy Roman Emperor's relationship to the people (Gierke Reference Gierke1900, 39–46; Skinner Reference Skinner2002, 14–7), and eventually upon the king's relationship to his people (Skinner Reference Skinner1978, 135–358).

The canon law corporation, meanwhile, became (alongside Aristotle's Politics) an important model for mixed government. It was applied to relations between the pope and cardinals (Gierke Reference Gierke1900, 67) and also applied, by moderate conciliarists, to relations between pope and council (Gierke Reference Gierke1900, 53–4; Tierney Reference Tierney1955, 3–5, 91). Taking note, the German imperial electors sought to apply it to their relations with the Holy Roman Emperor (Gierke Reference Gierke1900, 67). More importantly, it was applied in the kingdoms of Europe, especially England. Throughout the Middle Ages, a strong analogy was drawn between king and bishop, the temporal and spiritual princes of Christendom (Kantorowicz Reference Kantorowicz1997, 227–8), and partly on the back of this, the constitutional rules for relations between bishop and cathedral priests powerfully shaped constitutional rules for relations between king and Parliament (Post Reference Post1946; Tierney Reference Tierney1982, 24).

Neither of these, however, served as the constitutional model for American government, which is neither a simple republic nor a mixed government, but something new—a chartered republic, combining elements of the first two, but in a new form, through a fundamentally new type of constitutionalism. The constitutions of simple republics and mixed governments mimic the internal relations of member corporations, Roman and canon. Such governments wield the authority of the whole—that is, the authority of all members, or of the members and head—which is to say, they are sovereign. American-style constitutionalism instead derives from the external relations between sovereign and corporation. The sovereign people stands outside the government and withholds its full sovereignty from the government, granting it only a limited jurisdiction, via a charter. This reduces the government to a corporate government in a more literal, or at least a more 18^th century, sense—legally limited in purpose and powers, under judicial review. At the same time, its charter may be used to specify a structure of government far more elaborate than the stereotyped relations of “head and members” offered by Roman and canon law.

In recounting the multipronged corporate genesis of this new constitutionalism, I examine first the corporate origin of the concept of popular sovereignty, to which modern constitutionalism appeals to authorize and legitimate the governmental system as a whole.

THE CORPORATE ORIGINS OF INALIENABLE POPULAR SOVEREIGNTY

While the notion of inalienable popular sovereignty is often considered a 17^th century development,Footnote ⁹ or even an American innovation, students of medieval history have known since the seminal work of Gierke that the concept fully and clearly emerges in Europe in the wake of the 11^th century reception of Roman law, in a debate over the authority of the emperor. The shared premise in this debate was the imperial claim, promulgated in the Roman law books, that the emperor's authority rests on the Roman people's conferral (conferat) to him of their right of self-government (their ius, imperium, and potestas), in what was known as the lex regia (“royal statute”) (Digest 1.4.1; Institutes 1.2.6; Codex 1.17.1.7). Already from the 12^th century, medieval jurists universally accepted the lex regia as the basis of the Holy Roman Emperor's authority (Gierke Reference Gierke1900, 39). Any contradiction with the Pauline doctrine of authorization by God was resolved with the notion that the people are God's chosen instrument (Gierke Reference Gierke1900, 39, 48).

On its face, the lex regia seemed to imply that the people's conferral of authority to the emperor was a permanent alienation, and that all authority now lay in his hands. That was surely the understanding of the Roman emperors.

It was a development of great moment for Western constitutionalism that Johannes Bassianus (d. 1190s) and his very able and influential student Azo of Bologna (c. 1150–1230) laid the foundation for a republican interpretation of the lex regia by reading it through the lens of Roman corporate law. The Roman people did not alienate their authority. Rather, they acted as a member corporation, with members corporately delegating their right of self-government to the emperor (Gierke Reference Gierke1900, 39; Ryan Reference Ryan and Johnston2015, 426; Skinner Reference Skinner2002, 14–7). The dramatic implication that subsequent commentators would draw (Ryan Reference Ryan and Johnston2015, 425–6) is that the lex regia is a revocable delegation rather than a permanent alienation, for, following Roman law on the delegation of powers to corporate officers, “what is once transferred may be taken back” (quoted in Pennington Reference Pennington and Burns1988, 432).Footnote ¹⁰ The empire becomes a glorified Roman corporation, and the emperor but a rector of the people, with a conditional authority assigned to him as a matter of administrative convenience; the people retain the right to depose the emperor should he neglect or abuse his office. As Gierke notes, “When the matter was regarded from this point of view, there could be no deep-set difference between a Monarch and a Republican Magistrate” (Reference Gierke1900, 46).

The corporate reinterpretation of the lex regia thus opened a new and important chapter in the history of Western political theory. It established an obligation of the ruler to the ruled that was not just moral and religious, but legal, and it did this by transforming the lex regia, from an alienation that is over and done with, to a conditional delegation in the form of an ongoing quasi-contractual obligation. In other words, it marks the beginning of the doctrine of inalienable popular sovereignty (Gierke Reference Gierke1939, 143), as well as the beginning of ruler contract theory, which motivated the development of, and long lay at the heart of, social contract theory (98–9).

It is not widely appreciated how heavily popular sovereignty and the ruler contract lean on corporate theory for their plausibility. It is by virtue of their incorporation that the people have an original and inalienable jurisdiction, or sovereignty (Tierney Reference Tierney1982, 58); that they have the legal capacity to contract or delegate as a unit (Gierke Reference Gierke1939, 95); that majority consent, and not necessarily unanimity, can be sufficient to bind the whole (Gierke Reference Gierke1900, 40); and that their contract with the ruler binds succeeding generations (because a corporation, like Neurath's boat, remains legally the same even as its individual components are replaced) (Kantorowicz Reference Kantorowicz1997, 282, 294–5; Gierke Reference Gierke1939, 95). All of these aspects of the ruler contract become conundrums for social contract theory once it is separated from the corporate theory that gave it birth. The modern concept of a sovereign people is a naturalized corporation.

In sum, when imbibed straight, Roman law could easily go to the heads of the monarchs of Europe, spiritual and temporal, suggesting to each that he was an absolute sovereign whose pleasure “has the force of law” (Digest 1.4.1). However, percolated through the corporate concept, it provided the constitutional underpinnings of a populist republicanism, with the people as sovereign.

This view of the people as a Roman corporation, although enjoying periods of official favor (Canning Reference Canning1980; Tierney Reference Tierney1982, 66–71), was kept alive primarily as a component of resistance theory (Skinner Reference Skinner1978, 239–348, especially 254–6, 320). In the 1640s it came into the hands of English Parliamentarians justifying resistance to Charles I (Skinner Reference Skinner2005). And two generations later, during the Exclusion Crisis, John Locke revived it, giving it a canonical place in Anglophone political theory.

“When any number of Men have so consented to make one Community or Government,” Locke writes, “they are thereby presently incorporated, and make one Body Politick, wherein the Majority have a Right to act and conclude the rest” (Locke Reference Locke1988, 331, emphasis in original). Neither the Romans nor the medieval Europeans had attempted to explain how a people becomes a body politic—it was a legal given. Locke's notion that a body politic might be formed through private contract or consent traces back to the voluntarism of the dissenting Protestant churches (Höpfl and Thompson Reference Höpfl and Thompson1979). Regardless, the people (or “community,” or “commonwealth,” or “state”) thereby created is nothing other than a pitch perfect rendering of a Roman corporation. Only as a corporate body does the community have the legal capacity to delegate authority to a ruler—for example, to a king and his successors. And it delegates on the usual corporate terms. That is, the king's authority is both limited and fiduciary, with the corporate community the judge of whether the trust has been violated, whereupon “power devolves into the hands of those that gave it” (367).

The Americans would not follow the constitutional imaginary running from Azo to Locke and social contract theory and delegate authority to a specific person. They would instead delegate authority to a constellation of offices via a charter. But they did very much accept from this tradition the notion of the community as a corporate people with legal capacity. “In free states,” noted James Wilson, “the people form an artificial person or body politick, the highest and noblest that can be known. . . . To this moral person, we assign, by way of eminence, the dignified appellation of state. . . . [I]t is its right, and . . . generally, it is its duty, to form a constitution, to institute civil government, and to establish laws” (Reference Wilson2007, II.831; on its majoritarianism, I.640). If social contract theory has relevance to American constitutionalism, this is it: not that the Constitution is a social contract, but that, in the view of some, it presupposed a social contract that (at some unspecified point in time) had incorporated the people (635–6). But others thought other instrumentalities had done this (Federalist, No. 2). What was important for the founders was not how the people had been incorporated, but that it could be taken as such. From there, corporate theory did the real work. It gave sense to the founders’ notion of a legally competent people, with inalienable sovereignty, concluded by the majority, binding future members of the people—the first of the three corporate pillars supporting the practice of modern constitutionalism.

THE CORPORATE ORIGINS OF THE MODERN WRITTEN CONSTITUTION

The corporate origin of written constitutions in America is hardly a matter for dispute. The earliest American colonies, pioneers in the use of written constitutions, were pioneers because they were corporations—the Virginia Company, the Massachusetts Bay Company, and their offshoots (Lutz Reference Lutz1998). Unlike bare bills of rights or contractual agreements with rulers, such as the Magna Carta, a corporate charter establishes a government—its offices, powers, procedures, and authorized purposes—in written constitutional articles. That is why the colonists of Massachusetts Bay could, without changing a word, repurpose their company charter as a colonial constitution (Morgan Reference Morgan2006, 78–81). Their corporate charter, not their social covenant, gave their constitutionalism its form.

Importantly, these corporate charters bequeathed much more to the modern political constitution than mere written form. For what they put into writing was not some close likeness of a constitution as then understood. Rather, these corporate charters created the modern understanding of what a constitution is and does.

Unlike the constitutionalism of antiquity, which concerned the proper ordering of all the institutions of social life—political offices, but also the economy, family, religion, and military—and which aimed at virtue and the creation of the best life;Footnote ¹¹ and unlike medieval constitutionalism, which concerned the duty of the ruler to secure the consent of the various social orders in matters that “touch all” (Post Reference Post1946); and unlike the 18^th century British constitution, which comprehended the entire system of custom, ordinary law, and government institutions (Wilson Reference Wilson2007, I.719–20, excerpting Paley and Blackstone); a modern constitution, much more narrowly, founds a government. As put by McIllwain in his classic study of modern constitutionalism, “The constitution is ‘antecedent’ to the government, . . . defines the authority which the people commits to its government, and in doing so thereby limits it” (cited in Graber Reference Graber2013, 24–5). It typically has very little to say about how to fashion virtuous citizen members. Rather, it determines the offices of government, how they are filled, what their incumbents may do, and what procedures these incumbents must follow for their actions and enactments to carry legal force. Additionally, in contrast to the ruler contract of social contract theory, it is not the man, but the office, that carries the authority, and the office has its authority from the constitution (which in turn has its authority from a sovereign, the people). Such a constitution presumes the rule of law and is itself a legal text, the law of the sovereign. It is the fundamental law within a hierarchy of laws, and gives the actions and enactments of government their legal authority (Wilson Reference Wilson2007, I.712).

These traits of the modern political constitution are all simply carryovers from the corporate charters out of which it grew. Indeed, the terms “charter” and “constitution” were used interchangeably by Americans well into the 19^th century (Lieber Reference Lieber1830, 547) and certainly were so used by the authors of The Federalist. Madison, for example, refers to the federal constitutional document as the “constitution” (Nos. 20, 41), but also as a “constitutional charter,” and to the powers of government as “chartered authorities” (No. 49). Therefore, more accurate than saying that the American colonists “repurposed” their corporate charters as political constitutions, would be to say, that the colonies were governed on the authority of, and by the provisions of, their charters, and from this grew the American and modern understanding of what a constitution is and does.

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

To pen restrictions on government is one thing. But how exactly are they to be enforced? Empowering the courts to void legislation contrary to the written constitution—what we now call “judicial review,” or “constitutional review,” though better known as “repugnancy review” prior to the 20^th century (Bilder Reference Bilder2006, 563)—is today a defining feature of liberal constitutionalism; but it was hardly a self-evident proposition. It certainly did not follow from the mere writing out of constitutions. Even less did it follow from bare belief that rulers are bound by higher law (Corwin Reference Corwin1955; for critique, McDowell Reference McDowell1993; Wood Reference Wood1969, 292). Never did one of America's corporate colonies establish a constitutional court charged with upholding the colony's written charter and other constitutional agreements against the ordinary acts of its General Court (its supreme legislative body). In the usual arrangement, the General Court was both the general legislature and the highest court and was left to limit itself by the colony's fundamental documents, however it interpreted them (Morgan Reference Morgan2006, 86). It did not thwart itself by voiding its own legislation as unconstitutional.

This raises a difficulty for one thesis on the corporate origins of judicial review—that it followed directly from the equation of constitutions with corporate charters. Acts of a corporation falling outside the bounds set by its charter are struck down by the courts as ultra vires, “beyond powers” of the corporation. One can understand the temptation to see in this the model for constitutional review. “Just as corporate officials lacked lawful authority to go beyond the scope of their corporate charter,” writes Akhil Amar, “so conduct by government officials that transgressed substantive ‘constitutional’ limitations was null and void” (Reference Amar1987, 1434). But again, if this equation were sufficient to launch judicial review, it should have already appeared in the New England colonies, whose constitutions were literal corporate charters.

The reason it did not is inadvertently brought to the surface when Amar compares the source of limitation on corporate officers and government officials. “Like corporate officers, government officials were merely agents of principals who had prescribed limits on the agents’ power in the founding charter” (1434). The problem is, this does not describe the position of corporate officers. The charter that limited them was an act of the king or Parliament (or today, of a legislature, or secretary of state, or some other sovereign or authorized representative of the sovereign), not an act of the members or shareholders (their supposed “principals”; for critique, Ciepley Reference Ciepley2013; Robé Reference Robé2011; Stout Reference Stout2012). In striking down a corporate act as ultra vires of its charter, courts were merely upholding a piece of state legislation (the charter) against an action that transgressed it, as is completely normal. They were not upholding a members’ charter against officer legislation, which is the kind of analog that would be called for to model judicial review. Likely because of this disanalogy, the equation of constitution and charter was not sufficient to birth judicial review.

As Mary Sarah Bilder argues, judicial review has its roots in a different kind of restriction on corporations. As we have seen, a long-standing principle of corporate law is that corporations can impose rules (by-laws and ordinances) within their jurisdiction, so long as the rules are not contrary, or “repugnant,” to the law of the land. And significantly, the first British colonies in America—The Virginia Company, the Massachusetts Bay Company, and the offshoots of the latter, Connecticut and Rhode Island—were all settlement corporations, operating under charters containing express repugnancy clauses (Bilder Reference Bilder2006, 536–7). This repugnancy standard was retained, by analogy, for all new American colonies even after the Crown brought to a close its frustrating experiment with corporate colonies and moved on to proprietary colonies and royal colonies, and was operable on all the American colonies at the outset of the War of Independence (538). A delegated authority could not contradict the law of the delegating authority.

Importantly, this repugnancy standard was more than a paper restriction. From the 15^th century, the Crown introduced, and into the 17^th century gradually ratcheted up, its oversight of corporate by-laws, setting up judicial bodies for this purpose (518–23). The system of review was also applied to colonial legislation—the by-laws of the colonies—with colonial courts dutifully joining in the review, but with final review authority lying with Britain's Privy Council, the “third branch of colonial government.” All told, it reviewed over 8500 colonial acts for repugnancy to English law (538).

It is this colonial practice of repugnancy review that Bilder argues was fairly seamlessly transformed into the practice we now know as judicial review. With independence, many colonies drew up new constitutional charters for themselves. These new states carried forward the corporate idea that their governments were limited by charter. The break with Britain, however, precipitated a change in chartering sovereign from the Crown to the people. Many state courts, accustomed to reviewing colonial legislation for repugnancy to the sovereign's law, continued the practice. But this now meant reviewing for repugnancy to the law of the sovereign people, viz., their written constitution (542–5).

The theory that government has only a limited commission from the people was not new (even if it was novel for this commission to take the form of a popular charter). But as Jefferson complained, this theory had offered no means of checking legislative encroachment short of “ris[ing] in rebellion” (Wood Reference Wood1969, 343)—Locke's infamous “appeal to heaven.” Now, having passed through years of corporate subordination, Americans had a well-developed institutional means of holding their delegated governments to their limited commission. Corporate colonial governments subject to repugnancy review became state governments subject to constitutional review. The analogy, therefore, that birthed judicial review, was not that constitutions are to governments as charters are to corporations, but that constitutions are to governments as general laws of the sovereign are to corporations. In effect, the new constitutions acquired a dual valence, functioning both as the sovereign people's charter and as its general law (a natural conflation, since a charter at this time simply was a piece of legislation).

Bilder, reacting against scholarship that traces the origin of judicial review to theoretical innovations, emphasizes continuity of practice alone as the origin of judicial review (Reference Bilder2006, 504, 508, 509). But it seems better characterized as a conjunction of three elements, a triple corporate legacy: the metaphysical legacy of a corporate, sovereign people, the material legacy of written charters, or constitutions, that establish a government; and the procedural legacy of courts striking down the legislation of corporate governments when repugnant to the law of that government's authorizing sovereign. The combined result: courts striking down legislation that is repugnant to the written constitution of a people.

These new state practices were reproduced by the federal constitution. In contrast to the view made famous by Crosskey (Reference Crosskey1953, 1000), that the Founders never intended to establish judicial review, it was done almost as a matter of course. To quote only the most authoritative participant at the Constitutional Convention, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void” (Records 1966, II.93 (Madison)). The historical record also shows that judicial review was presumed at the state ratifying conventions (Bilder Reference Bilder2006, 550), as well as in the debates leading up to these, as in Hamilton's famous Federalist No. 78: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid. . . . [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

With ratification of the federal constitution, judicial review of a subordinate government's law for repugnancy to the law of its superior became a practice common to the following: state courts reviewing the ordinances of their corporations (including their towns) for repugnancy to state law; state courts reviewing town and state legislation for repugnancy to their state constitutions; state and federal courts reviewing town and state legislation for repugnancy to federal law; state and federal courts reviewing town and state legislation for repugnancy to the federal constitution; and federal courts reviewing federal legislation for repugnancy to the federal constitution. This unprecedented hierarchical system is a legacy of the corporation—a mode of delegated government that served as a general model for a system of subordinate governments, each level subject to the law, both ordinary and constitutional, of the next higher level, through a judicially enforced repugnancy standard.

BINDING THE PEOPLE: A CORPORATE SOLUTION TO SECURING LIBERTY UNDER POPULAR SOVEREIGNTY

In its inception, the corporate conception of the people served to counter monarchical sovereignty. But it did so only to raise the problem of popular sovereignty. This made it a double-edged sword for Federalists. It was highly useful against imperial Britain. However, the difficulties with life under the Articles of Confederation as identified by Federalists did not stem from an oppressive monarch or magistracy, but rather from popular state legislatures and the “people out of doors”—activist citizens who, through the use of extra-official political committees, conventions, mobbing, and the instructing of representatives, aimed at draining the legislative power of the state assemblies into the immediate hands of the people (Wood Reference Wood1969, 319–28, 362–89), with inconstant and often unhappy results . . . especially for creditors! (403–13; Federalist, nos. 10, 63).Footnote ²⁴ This only confirmed the lesson Federalists drew from Greek and Italian history, that the people too could be passionate, arbitrary, even tyrannical—a “capricious retail tyranny” in the words of one observer (Wood Reference Wood1969, 327). For Federalists, the corporate conception of the people, with its implication of inalienable popular sovereignty, seemed not the constitutional solution, but their very constitutional problem. The people too needed to be restrained, not just their government. But how could this be done without betraying the republican ideals of the revolution? Indeed, how could one bind a sovereign, “absolute . . . and uncontrollable,” at all?

As nominalist theologians had concluded centuries earlier—in defending God's absolute sovereignty while denying his arbitrariness—the only way for a sovereign to be bound that did not derogate from his sovereignty, was for him freely to bind himself. As propounded by the theologians, God, in his absolute power (Dei potestas absoluta), could have created the world however he wished and could overturn it at any moment; but by his ordaining power (Dei potestas ordinata), he created the world we have and bound himself to it (Oakley Reference Oakley1984, chaps. 2–4).

Analogously, the Federalist response to the problem of sovereignty was to ask the American people freely to “ordain and establish” (by populi potestas ordinata, so to speak) an order that limited not only the government, but also the people's capacity (its potestas absoluta) directly to intervene in it. And the institutional mechanism that would effect this? Once again, it was the corporate practice of delegating jurisdictional authority via a charter.

The corporate mode of delegating is noteworthy not only for creating charter-limited governments, but also for excluding the chartering sovereign from any role in these governments. Indeed, these are two sides of the same coin. If the sovereign were not excluded, the government would not be limited. The sovereign serves as a constituting power only, authorizing the government but thereafter serving neither as a principal nor a managing power within it. The same would now apply to the corporate people upon issuing the national charter. In the words of the Federalist, “The true distinction between [ancient republics] and the American governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter” (No. 63, emphasis in original). And being excluded in their collective capacity, meant being excluded in their sovereign capacity. Broken into atoms, the citizenry (the people as a collection of individuals) would certainly play a role in government as assigned to it by the Constitution—including the vital republican role of electing, directly or indirectly, all federal officers. But strictly speaking, this was not an act of the sovereign people, for these are the polls of groups of citizens, not of the people as a corporate whole. Not even in presidential elections does the people vote as a body, but votes in fragments through the states and the electoral college. In other words, the electorate is not to be confused with the sovereign people, and those elected cannot claim sovereignty from it.Footnote ²⁵ The elected exercise only the circumscribed authority with which their office is endowed by the sovereign people's charter.

In sum, the corporate people does not participate in government, whether through popular assembly (as in antiquity and in some New England towns), direct action (such as ad hoc conventions and mobbing), or through “virtual” representation (as in Britain). Rather, it is limited to a constituting (“constituent”) role, the “original fountain of all legitimate authority” (Federalist, No. 22; see also No. 49) but not itself a governing power.Footnote ²⁶ Like any other chartering sovereign, the corporate people is left only the device of charter amendment to redirect the course of the government it ordained. At all other times it is, to use Hobbes’ clever conceit, a “sleeping sovereign” (Tuck Reference Tuck2016, 89–90). The Federalists thus tamed the sovereignty of the corporate people by having the people delegate via a corporate charter rather than rule directly or delegate directly to persons by contract, trust, or agency (as did the Italian city-republics of the 12^th and 13^th centuries; Skinner Reference Skinner1978, I.3–4). It was a new mode of republicanism—charter republicanism (that is, constitutional republicanism), as opposed to ruler contract republicanism.

Again, the point of excluding the people was not to block popular influence on the government (which would be pervasive), but to better secure members of the polity from arbitrary government, including from transient popular majorities (Federalist, No. 63). Excluding the people in their corporate capacity made available two additional means to this end.

CONSTITUTIONAL STATES AS CORPORATIONS

At a minimum, we can say that Federalists transferred the theory and practice of corporate government to the proposed federal government. But for key members of the founding generation, this was not based on a mere analogy. They came to identify the United States, or the government of the United States, as a literal corporation.

On one definition prevalent in the founding era, any body politic with the attributes of a juridical person (owning property, entering into contracts, and subject to legal suit) was a corporation. Given the focus of the courts on legal standing, this was the definition that dominated at the bar, and it meant that even supreme or sovereign governments were to be considered corporations. Justices including John Marshall, William Cushing, James Iredell, James Wilson, and many others, propounded this view from the Bench, that “all states whatever are corporations, or bodies politic” (Chisholm v. Georgia (1793), 468 (Cushing)), and the United States itself, a “great corporation” (United States v. Maurice (1823), 11 (Marshall)). It matters not whether the power of a body politic “be restricted or transcendent,” wrote U.S. Supreme Court Justice James Iredell. “[N]ot only each State singly, but even the United States, may without impropriety be termed ‘corporations,’” and thus subject to legal suit (Chisholm v. Georgia (1793), 447). Similarly, defending the legal competence of the federal government to enter into binding contracts, Marshall wrote, “‘The United States of America’ is the true name of that grand corporation which the American people have formed, and the charter will, I trust, long remain in full force and vigour” (Dixon et al. v. United States (1811), 4). This identification of state and corporation, and of constitution and charter, explains why no new body of interpretive principles had to be developed by the justices to engage in constitutional review, as if confronting a new form of legal document, for the existing principles for interpreting corporate charters were ready at hand. Principles such as “strict construction” and “implied powers” migrated seamlessly from corporate litigation to constitutional litigation (Davis Reference Davis1905, II.207).

On another definition more common among political theorists interested in the structure of power, the American governments were corporate governments, but as such were to be distinguished from sovereign governments precisely in that they acted under legal limits imposed by a sovereign. (Those subscribing to the first definition recognized the relevance of this distinction and referred to these latter as “subordinate” or “inferior” corporations.)Footnote ³⁰ In other words, all legally limited governments were classifiable as corporations, including those of companies, churches, universities, towns, the states, and even the federal government, legally limited by the people.

This was the view espoused by Hamilton, for example, in his written opinion to George Washington defending the authority of the federal government to charter corporations and to charter the Bank of the United States in particular. Quoting Madison's contrary opinion, Hamilton observes that, on Madison's own account, the Constitution authorizes “the institution of a government” in the western territories, and this, Hamilton is quick to point out, means “the creation of a body politic, or corporation of the highest nature” (Hamilton Reference Hamilton1791).

Hamilton could be confident that his identification of constitutional governments and corporations would have purchase with the President and cabinet, for the same identification had been made by Madison and others during the Philadelphia Convention. Madison, for example, intervened several times to correct loose talk about the states as “sovereign.” In his notes, Madison recorded himself as observing that “[t]here was a gradation . . . from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty,” and that, with regard to the states under the Articles of Confederation, “their laws in relation to the paramount law of the Confederacy were analogous to that of bye laws to the supreme law, within a State” (Records 1966, I.464). In other words, they were in the position of inferior corporations within a state.Footnote ³¹ His point was seconded by others, that “the States are now subordinate corporations . . . not sovereigns” (Records 1966, I.331 (Wilson); see also I.323 (Hamilton); idem (King); II.363 (Mason)).Footnote ³² By extension, once the principle was established that the national government has only a limited commission from the sovereign people, it too fit the definition.

James Wilson made exactly this point in his widely circulated State House Yard Speech of 1787 in favor of ratification:

Wilson's point with respect to the states is that they would indeed be corporations under the new constitution, but not chartered corporations of the federal government as feared (which would have made them subject to Congressional dissolution). Rather, as his Supreme Court colleague James Iredell would write for the Court, a state is a “corporation” that “derives its authority from the same pure and sacred source . . .: the voluntary and deliberate choice of the people” (Chisholm v. Georgia (1793), 448). His point with respect to the constitutional system as a whole is precisely that being here argued, that the Constitution is an “act of incorporation”—that is, a popularly enacted corporate charter establishing a limited corporate government, canalized into national and state governments.

That constitutional governments are literal corporations remained learned opinion for at least two more generations. An especially comprehensive corporate vision was articulated by Francis Lieber, the founding father of American political science, who explained in his popular Encyclopedia Americana of 1830 that “[a] corporation is a political or civil institution, comprehending one or more persons, by whom it is conducted according to the laws of its constitution. . . . Its acts. . .are considered those of the body,. . .not those of the member or members composing the corporation.” “All the American governments are corporations created by charters, viz. their constitutions.” Indeed, “[t]he whole political system is made up of a concatenation of various corporations, political, civil, religious, social and economical,” with the “nation itself. . . the great corporation, comprehending all others” (547).

In short, whichever definition one subscribed to—and here I add that, in the view of this author, the two in combination provide a definition that is unimpeachable—all American governments qualified as literal corporations, for all were juridical persons, and all were legally limited. Of course it was not the everyday practice of Americans to refer to their governments as corporations. But the corporate connection was recognized by the historically informed, the legally expert, and the theoretically astute—people like the framers, once they had been pushed to clarify the inner logic of the system they had created.

This was not the end of the story for American constitutionalism. The corporate logic of the American constitutional system was never accepted by Antifederalists, and was subsequently challenged, in different ways, by Jacksonian Democrats, Nullifiers, Secessionists, and Progressives, to name but a few. As Jason Frank notes, “The [Federalist] attempt to overcome the people by appeal to the people . . . authorized an ongoing history of constituent moments, of effective claims to speak in the people's name that nonetheless break from the rules established by their authority” (Frank Reference Frank2010, 31). Nonetheless, the system remains largely intact, even as its corporate roots have been forgotten. It includes: the delegation of a limited jurisdiction by a sovereign to a subordinate government via a charter, with prescribed offices, powers, procedures, and purposes outside of which the government's actions and enactments lack legal force; the sovereign's retention of all rights and powers not delegated by the charter; the ordaining of this government as a separate legal entity, or “juridical person,” that owns property and enters contracts in its own name; the sovereign's removal from participation in this government, while reserving a right to amend or rescind its charter; the placement of authority in the office, not in the officeholder; the officeholder serving, not as a direct agent of the sovereign, but as a dual fiduciary, to the electorate and to the purposes and procedures established by the sovereign's charter; the requirement that the government's enactments not be repugnant to the law of the sovereign (establishing a hierarchy of laws); and the enforcement of this repugnancy restriction by courts established by the sovereign rather than by the sovereign directly. All of this simply recapitulates the corporate form of delegated authority. If the “sovereign” is a king or legislature, the above describes a corporation; if it is “the people,” it describes modern constitutionalism. Its formal theoretical structure includes, first, the formation of a corporate people (whether through a social contract or some other means), followed, not by a classic ruler contract, but by the chartering of a subordinate corporate government.

In sum, corporate government and modern constitutional government employ the same governance technology, which the latter borrowed from the former. They are both “franchise governments” established by charter. What is more, the authority of each is franchised by (that is, delegated in special fashion by) the same ultimate sovereign. There is this difference only—one is chartered by the people directly, the other indirectly, being chartered by one of the governments chartered by the people. Modern governance is corporate from top to bottom.

We are wont to attribute our modernity to “the rise of individualism”—religious, legal, political, and economic. This is not so much wrong, as one-sided. It is not individuation, but organization, that generates capacity for action, or power. And when we consider leading markers of the rise of Europe—including the growth of towns, universities, religious orders, trading companies, and the European state—what we find is not individualism per se, but individuals organized, and organized in corporate and quasi-corporate forms. The ascent of modern constitutionalism, followed by the ascent of the modern business corporation (on the back of the unprecedented protection which the former has provided it), only intensifies this trend. The institutional matrix of our modernity turns out to be quite “medieval.” Liberal and neoliberal concepts of individual self-interest, individual responsibility, private ownership, contract, (human) principals and agents, and a sharp public/private distinction, are simply inadequate for grasping our corporate reality, and must at a minimum be supplemented with corporate concepts: franchised (delegated) jurisdictions, chartered governments, judicially enforced hierarchies of law, “immortal” juridical persons, fiduciary duty to these juridical persons and their purposes, juridical persons as owners and liable parties, and the limited liability of the natural persons who control them.

Finally, to return to the question posed in the title of this article, is the U.S. government a corporation? If by this we mean a separate property-owning entity, then certainly (Runciman Reference Runciman2000). But on the more exacting definition of a corporation as a legally limited government, a more qualified answer is called for. On the one hand, the U.S. government and its people is not subordinate to any other government. This is the mark of a sovereign state and differentiates the U.S. government and its people from an ordinary corporation.Footnote ³³ However, while the government is sovereign with respect to other governments (i.e., is not legally limited by them), it is not sovereign domestically, for it is subordinate to, and limited by, a sovereign people (a constituting power rather than a governmental power). And limitation by a sovereign is the mark of a corporation. We seem driven to the conclusion that the U.S. government is a sovereign state with respect to other states, but is a corporation with respect to the people. And the same is true of the many other governments founded on that American contribution to constitutionalism, the people's charter.