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The Constitution and Corporate Law

By Francis G. X. Pileggi, Esq.

How can these two legal topics be connected when on the surface they seem so disparate? I learned the answer at a seminar I am attending today in Phoenix on the topic of the Second Amendment to the U.S. Constitution. Perhaps this is an unlikely place to find such an answer but at this gathering of scholars and practitioners who are experts in Constitutional Law, based on both the U.S. Constitution and the constitutions of each of the states, I was reminded of a few concepts that permeate and transcend all areas of the law. Extensive source materials were provided today to support the position that many of the most important rights in the U.S. Constitution, such as those in the First and Second Amendment, were considered by the Founders to be inherent human rights that were (are) based on "natural law" . Thus, the U.S. Constituion was merely codifying, in many sections, existing rights as opposed to the government granting those rights.

How does this relate to corporate law? I'll try to keep this pithy. Based on these basic natural rights that we (should) enjoy,  a foundation is provided that allows us to fashion our commerce and the laws that govern commerce in a manner that gives private parties the maximum freedom to order their affairs, subject to government regulation (the extent to which is the subject of current debate).

An interesting point made during the seminar today was that there are some otherwise intelligent lawyers and jurists (and others) who are quite passionate about supporting the Bill of Rights in the U.S. Constitution, but some would rather pretend that at least one of those "inconvenient rights" (e.g., the right to self-defense), should not be given the same respect and recognition as, for example, the freedom of speech. There is a lack of intellectual honesty in some of those arguments.

Full post as published by Delaware Corporate and Commercial Litigation Blog on May 15, 2009 (boomark / email).