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Frontmatter -- Contents -- Acknowledgments -- Introduction -- I. State-Building before the Totalitarian Encounter -- 1. An Exceptional Beginning -- 2. Social Science, Progressivism, and the State -- II. Totalitarianism and the Economy: The Renaissance of Free Enterprise -- 3. A Unique Economic Path -- 4. The Quest for a Cooperative Commonwealth: NRA and AAA -- 5. Two Roads to the Development State: TVA and NRPB -- 6. Totalitarianism and the Scuttling of the Development State -- 7. The Retreat from Cooperation to Fiscal Compensation -- 8. Totalitarianism and the National Security State -- III. Totalitarianism and Democratic Politics: The Rise of Interest Group Pluralism -- 9. Democracy and the "Values" Question -- 10. Envisioning Interest Group Pluralism -- 11. Interest Group Pluralism Institutionalized -- IV. Totalitarianism and the Court: From Higher Law to Neutrality -- 12. Totalitarianism and the Rediscovery of Civil Liberties -- 13. The Rise and Fall of Judicial Review before World War II -- 14. The Neutrality Ideal Comes to Court -- 15. Neutrality and the Due Process Revolution -- 16. Neutrality, Civil Liberty, and the Culture Wars -- Conclusion: The Dysfunctions of Antitotalitarian Liberalism -- Notes -- Index

There is an unexamined paradox in the history of government in the West. The so-called absolutist monarchs of Europe overwhelmingly chartered republican corporations—e.g., towns, universities, and guilds whose members elected their leaders. Indeed, modern constitutional democracy is patterned after them. Yet, modern democracies themselves have overwhelmingly chartered authoritarian corporations—e.g., universities and business corporations whose subjects have no vote. After this Great Inversion, corporations, which once distributed power and wealth, now concentrate them, straining constitutional democracy. Against this backdrop, this article analyzes the major types of relation maintained between states and corporations: constitutive (states charter corporations), mimetic (states and corporations recurrently copy one another's organizational features), and instrumental (each leans on the other, and sometimes captures it, to better advance its own purposes). The article then examines the special challenges that corporate economies pose to constitutional democracy and considers whether a partial reversal of the Great Inversion could reduce them.

Abstract
In honor of Lynn Stout's efforts to better suit the business corporation for the pursuit of long-term, publicly-beneficial purposes, the present essay reviews critically the historical process by which the corporation's tie to public purposes—a precondition of the earliest grants of corporate powers to business enterprisers—was slowly severed. And it explores a form of corporate control, once widespread in the U.S. and easily revivable, that could partially restore corporate emphasis on public benefits—the foundation-controlled corporation.

AbstractThat stockholders "own" the corporation and are its "members," are assumptions deeply embedded in Anglo-American treatments of the business corporation. They are also principal supports of the policy of "shareholder primacy" and, in the United States, of the corporate claim to constitutional rights. This article critiques these assumptions, while also explaining why they took hold. Among several reasons for this, the primary explanation is to be found in the peculiar parentage of England's first major business corporation, the English East India Company (EIC). The EIC did not begin its life as a true business corporation, but as a cross between a guild (a form of member corporation) and a joint stock company (a form of partnership). In the transition to a unified business corporation, its stockholders inherited the monikers of "member" and "owner" from their guild and partner forebears. This mis-description set the legal mold for all subsequent Anglo-American treatments of stockholders.

Abstract
Historically, a corporation was regarded as an artificial creation of law
possessing only what rights and powers its constituting charter confers upon it.
This "concession" or "grant" theory has been
eclipsed, especially in the United States, by the view that the corporation is a
mere association of natural persons, and that its rights are those of its
"members" and "owners," the shareholders, who, as
persons and citizens, bring even constitutional rights to the corporation. This
associational view rests on a triple confusion. First, it confuses the
corporation (the rights-bearing corporate entity) with the corporate firm, which
is associational, leaving the impression that the corporation can be reduced to
natural persons. This underwrites the second confusion, that the business
corporation is a member corporation, with the shareholders as members, when in
fact it is a property corporation without members. The histories of the Dutch
and English East India Companies are drawn on to explain the origins of this
second confusion. Third, it confuses the member corporation with a partnership,
when it imagines that the rights of the corporation are simply those of its
individual shareholders. Instead, as maintained by the grant theory, a
corporation should only receive such rights as are conferred on it by charter or
statute on the basis of policy considerations.

The U.S. Constitution is best understood not as a "social contract," but as a popularly issued corporate charter. The earliest American colonies were literal corporations of the Crown and, like all corporations, were ruled by limited governments established by their charters. From this, Americans derived their understanding of what a constitution is—the written charter of a sovereign that ordains and limits a government. The key Federalist innovation was to substitute the People for the King as the chartering sovereign. This effectively transferred the "governance technology" of the corporation to the civil government—including the practice of delegating authority via a written charter, charter amendment, and judicial review. Federalists used these corporate practices to frame a government that united seeming irreconcilables—a government energetic yet limited, republican yet mixed, popular yet antipopulist—yielding a corporate solution to the problem of arbitrary rule. Leading founders considered this new government a literal chartered corporation of the People.