B.1(b). Associations & Quasi-Governments

Individual Persons possess Civil Rights. Individual Citizens possess Civil Rights, Civic Rights, and Civic Powers. Associations—whether corporations, unions, nonprofits, churches, PACs, or any other collective entity—possess none of these Rights or Powers in their own name, though the individuals who make up their membership retain all Rights and Powers they hold as Persons or Citizens.

This clause expands on the Personhood clause (Article I. Section 2.A.1). Not only are associations explicitly not persons, this clause emphatically states they do not have rights in the same way that persons do. This firmly shuts the door on the tortured expansions of rights to entities that can’t have the same legal responsibilities or liabilities as people have. Associations don’t have the right of free speech, for example. They don’t have bodily autonomy or the freedom to assemble. The absurdity of that sentence demonstrates why associations can’t have civil or civic rights.

This is to rein in unlimited corporate spending in elections, disguising it as free speech, or the assertion of religious belief to avoid providing legally mandated healthcare to employees. Associations simply don’t have those rights.

At the same time, this clause reaffirms the rights and powers that the persons who make up the membership of associations already have. It is the association that lacks constitutional rights and powers, not the individuals within it.

It is important to note that this clause does not prohibit Congress from granting statutory powers or rights. Congress still has the ability to assign powers or rights to associations, like the ability to sue or be sued, enter into contracts, and so on. These powers and rights don’t rise to the level of constitutional rights and powers, though.

Any association that is capable of materially controlling employment, housing, credit, communications, transportation, data, or any essential market access is deemed quasi governmental. A quasi governmental association must comply with every constitutional limit that binds Government itself.

There are some associations that are so powerful they effectively act like governments. When they can control fundamental parts of everyday people’s lives, associations become quasi-governments. If they have governmental power, they have to be subject to governmental limitations. They can’t censor speech, discriminate based on protected characteristics, violate due process rights, and so on.

Today, CEOs of mighty corporations can unilaterally declare that a person no longer has access to a broad communications platform (think Facebook, X, or TikTok banning their members). They can force customers to accept contract terms with only an opt-in or out methodology (think utility or cellular phone contracts). They are operating as if they are governments, but without any of the restraints or limitations imposed on governments. This clause addresses that gap. If an association is a quasi-government in function, it must be restrained in the same way as a government. This principle hasn’t been stated in these words, but it is at the heart of antitrust law. It isn’t an innovation. It’s a constitutional update to meet modern manifestations of old problems.

It’s important to note that this can be situational. For example, a company may be a quasi-government to its employees during a particularly harsh economic downturn, threatening termination if the employee doesn’t agree to certain conditions. When jobs are scarce, employees can’t realistically walk off the job if the company violates their rights. However, the same company is not a quasi-government in a better labor market because employees can easily find other employment.

This will generate litigation as courts work out the boundaries, but that’s what the courts are for, and that’s how constitutional rights get meaningful protection in practice. The examples of social media platforms and utilities above show this isn’t mere abstraction. These abuses are happening now.

Any single member, shareholder, or employee of an association has standing to sue or defend on that association’s behalf, though employees will require the authorization of their employer to do so.

Even if Congress doesn’t explicitly grant associations statute rights to sue, their members or employees (if authorized) can still do so under Institutional Standing doctrine. (For more detail on the legal standing inherent here, see Institutional Standing in Article IV, Section 4.A.4)

The specificity requiring an employee to have authorization from their employer is a simple safeguard to avoid unnecessary appeals later. Since employees are not technically “members” of the association, they need to have the Institutional Standing delegated to them.