Our constitutional order contains an “anti-power-accumulation principle.” This principle has three components: first, power must be formally and functionally exercised exclusively by the intended actor–be it the state or federal government, one of the branches within those respective governments, or the people, whether as individuals or acting through a formal or informal association, such as a corporation; second, there must be specific limits on the exercise of any such power; and, third, those limits must be enforced to ensure the proper allocation and distribution of power. A failure to enforce this principle infringes the sovereignty of the states and the people–an unconstitutional as well as anti-constitutional outcome.^[1]

This essay examines the origins of this principle and argues that the accumulation of power by corporations and agencies in the modern era requires the rediscovery and application of the principle’s provisions.

Origin and Meaning of the Anti-Power-Concentration Principle

In Seila Law v. CFPB, Justice Kagan accused the majority of deploying an “anti-power-concentration principle” to declare the agency’s single-director structure unconstitutional.^[2] She then quipped, without citation, that “[i]f you’ve never heard of a statute being struck down on that ground, you’re not alone.”^[3] Had Justice Kagan looked deeper into the Court’s case law as well as the letter and spirit of the Constitution, she would have reached a different conclusion. 

Not only have courts and legislators long applied an “anti-power-concentration principle” to limit the undue accumulation of power in public and private hands but also that the Framers relied on that principle in designing, interpreting, and expounding up the Constitution as well as state constitutions. As early as 1792, the Supreme Court denied attempts by Congress to add to the powers of another branch at risk of upending the initial and specific allocation of powers.^[4]

This denial aligned with the intentions of the Framers as manifested by declarations and actions at both the state and federal level. James Madison, a staunch proponent of the Constitution as proposed and ratified, nevertheless lent some support to its amendment given the fact that “all power is subject to abuse.^[5] In other words, so great was Madison’s fear of concentrations of power that he was willing to consider arguably premature constitutional amendments so long as they led to greater security against government abuse of power.^[6]

State officials, also highly skeptical of unchecked or undue power, went so far as to constitutionalize bright lines distinguishing the powers of the respective branches. One representative provision sets forth that “[t]he powers of the Government are divided into three separate departments; the Legislative, the Executive, including the Administrative, and the Judicial[.]”^[7] What’s more, the provision prohibits any person “charged with official duties under one of those departments” from “exercis[ing] any of the functions of another,” unless the constitution expressly states otherwise.^[8]

Fear of concentrations of power extended to the private sector as well. In 1816, Thomas Jefferson called on Americans to “crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of their country.”^[9] Similarly, John Adams, concerned with “the designs of intriguing aristocratic minorities,”^[10] advocated for more robust checks on the ability of elites to undercut the authority and legitimacy of the government.^[11]

The centrality of this principle is further illustrated by members of the Founding Generation attempting to rein in the potential of churches to usurp the people’s power and chip away at the sovereignty of the government. The New York State Legislature, for example, meticulously guarded the state’s sovereignty–an approach worthy of further review given that other states later emulated New York’s regulation of churches.^[12] The legislature forced all churches, including the most wealthy and prominent denominations, to have their charters renewed or granted.^[13] For some, this was far from a perfunctory process but rather involved the legislature passing legislation granting such a charter.^[14] Though the legislature eventually streamlined this process by allowing churches to register with the courts rather than the legislature, such registration required churches to assent to numerous conditions.^[15] For instance, the state regulated membership qualifications for voting and imposed restrictions on how property would be managed.^[16] Moreover, states that followed New York’s approach went so far as to require that churches adopt governance mechanisms that comported with the republican principles of the time.^[17]

These diligent efforts to identify and limit concentrations of power, however, only addressed individuals and institutions that the Founding Generation had caused to fear. It follows that they did not fully anticipate nor adequately respond to the power wielded by contemporary corporations and agencies. 

Unanticipated Rivals to State and Federal Power

The signers of the Declaration of Independence could count the number of “distinctly American” corporations on one hand plus a thumb.^[18] Just six such corporations existed prior to 1776.^[19] This number did not explode prior to the ratification of the Constitution.^[20] The Framers had no need to regard existing corporations as threats to the sovereignty of the people nor control by the government. Still, they recognized the power of incorporation as a significant one that, if abused, could create a system of private entities with influence that rivaled that held by the states and federal government.^[21] So they agreed to deny that power to the federal government^[22]–perhaps expecting that states would more seriously guard against corporations seizing powers intended to be exercised solely by the people and their representatives.^[23]

Even when the number of corporations did expand, members of the Founding Generation had no cause to alter or reinforce constitutional safeguards against corporate accumulation and abuse of power. Corporations in the late 1700s and early 1800s, operated as agencies of the government that performed social functions and did not engage in profiteering nor highly speculative activities.^[24] The “democratic character” of corporations actually served to extend and support the government–fulfilling economic needs and aligning with the republican spirit of the times.^[25] And, to the extent that corporations did attempt to exceed their explicit charters, state governments in many cases succeeded in reining them in.^[26]

This explains the relative absence of limits on corporate influence in the Constitution. Yet, it does not justify an interpretation of the Constitution that tolerates let alone sustains corporate infringement of individual rights and encroachment on governmental powers. The “anti-power-concentration principle” that pervades the letter and the spirit of the Constitution reveals such an interpretation as woefully unaligned with the expectations and intentions of the Framers.^[27]

A similar story can be told about the absence of robust constitutional checks on the administrative state, its subsequent proliferation, and its current exercise of unanticipated and, in many cases, unconstrained exercise of power.^[28] Cases like INS v. Chadha,^[29] in which the Court claimed to stand on firm constitutional ground by striking down a legislative check on agencies, could have turned out differently had this principle been rediscovered at an earlier time and consistently incorporated into the court’s jurisprudence. More specifically, the Chadha Court should have, minimally, upheld legislative vetoes of administrative use of legislative powers–this would have further the anti-power-concentration principle by virtue of diffusing and limiting power.  

The Case for Recognizing the Principle

From the earlier review of efforts by state and federal actors to identify and prevent the concentration of power, can it be doubted that the powers exercised by modern corporations and agencies run afoul of this principle? My answer is affirmatively and unequivocally, “No.” In fact, the preservation of constitutional order requires such an answer. Restoration of this principle is critical to preserving liberty in an age of massive corporations and huge agencies having retained significant resources and substantial influence over our political system as well as our individual lives.^[30]

A handful of corporations exercise near complete control over key aspects of our day-to-day lives.^[31] Most Americans have little to no choice over their broadband provider.^[32] A cabal of search engines dominate the market and clandestinely steer the public toward certain content.^[33] Across the board, consumer product choice has been slashed in recent years.^[34] Though this decrease has obvious economic impacts, scholars have increasingly argued that limited choice also causes democratic harm.^[35]

Despite their substantial resources, influence, and infringement on liberty, contemporary corporations “have virtually no inherent limits on behavior and present virtually no risk of liability for their investors.” Whereas for many in the Founding Generation, “corporations looked less like creatures of the states than rivals for their power,”^[36] today, a “common illusion that corporations are primarily private entities with prerogatives beyond citizen control” has become “accepted fact.”^[37]

Similarly, the administrative state has evaded meaningful oversight following its explosion in the mid-twentieth century. Since at least Gray v. Powell, there has been a widely held “belief that the Court in this field has been guided by purely discretionary factors–or, more bluntly, by the arbitrary whims and caprices of the majority of the justices.”^[38] Surely the Founding Generation would have expected more robust checks on agencies responsible for thousands of regulations per year.^[39]

The Framers would not and did not tolerate corporations and agencies exercising so much unchecked power in light of their incongruity with our constitutional order.^[40] It follows that perpetuation of the status quo threatens to undermine that order as the serial failure to adhere to the “anti-power-concentration principle” chips away at the checks, balances, and stability at the core of the Constitution.

The window to recognize and act on the principle is closing. The pending introduction of AI agents capable of taking action to solve problems presented by users suggests that a handful of particularly powerful AI labs may soon have the means to infringe individual autonomy.^[41] A robust definition of the principle and sustained application of the principle by legal actors can diminish the odds of that unacceptable outcome.

Kevin Frazier is an Assistant Professor of Law at the St. Thomas University Benjamin L. Crump College of Law.

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^[1] The term “anti-constitutional” has received little scholarly attention. See Katherine Shaw, Impeachable Speech, 70 Emory L.J. 1, 49 (2020) (“[T]he term ‘anticonstitutional’ does not appear frequently in the literature . . . .”). Professor Bruce Ledewitz characterizes anti-constitutional actions as those that “constitute[] a rejection of the constitutional value as the courts understand it. Bruce Ledewitz, No Balancing for Anti-Constitutional Government Conduct, 2023 U. Ill. L. Rev. 80 (May 25, 2023), https://illinoislawreview.org/online/no-balancing-for-anti-constitutional-government-conduct/. He cites the Supreme Court’s ruling in United States v. O’Brien, 391 U.S. 367 (1968), as an example of an anti-constitutional action being struck down. This paper does not aim to significantly deepen the understanding of this important concept, but nevertheless adopts Ledewitz’s definition and applies it to a new context. 

^[2] 140 S. Ct. 2183, 2243 (Kagan, J., dissenting). 

^[3] Id.

^[4] Hayburn’s Case, 2 U.S. 409 (1792); see Opinion for the Circuit Court for New York (Chief Justice Jay and Justice Cushing of the Supreme Court and District Judge Duane), reprinted at 2 U.S. 409, 410 n.2 (“That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.”).

^[5] James Madison, Speech Introducing Proposed Constitutional Amendments, OLL (last accessed Mar. 24, 2024), https://oll.libertyfund.org/pages/1789-madison-speech-introducing-proposed-amendments-to-the-constitution; see The Federalist No. 48 (“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”).

^[6] Madison, supra note 5; see The Federalist No. 48 (“The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”).

^[7] Ind. Const. art. III, § 1 .

Though this provision is in Indiana’s current constitution it is nonetheless valid for analysis in this context given that such provisions have generally not changed since the Founding and that Indiana’s provision is “representative” of those provisions. G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions, 59 NYU Ann. Sur. of Am. L. 329, 337, 337 n.4 (2003).

^[8] Ind. Const. art. III, § 1 .

^[9] See Liz Kennedy, Corporate Capture Threatens Democratic Government, Center for American Progress (Mar. 29, 2017), https://www.americanprogress.org/article/corporate-capture-threatens-democratic-government/.

^[10] Luke Mayville, Fear of the Few: John Adams and the Power Elite, 47 Polity 5, 7 (2015) (quoting Adams).

^[11] Id. 

^[12] Kellen Funk, Church Corporations and the Conflict of Laws in Antebellum America, 32 J. of L. and Rel. 263, 268 (2017).

^[13] Id. at 266-67.

^[14] Id. at 266.

^[15] Id. at 267. 

^[16] Id. at 268.

^[17] Mark deWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History at 44-47 (1965).

^[18] Simeon E. Baldwin, American Business Corporations Before 1789, in I Ann. Rep. Of The Am. Hist. Ass’n 255 (1903) via Douglas Amer, Development of the American Law of Corporations to 1832, 55 SMU L. Rev. 23, 45 (2002).

^[19] Id.

^[20] See Amer, supra note 18, at 45 (citing Butler, who argued that the multiplication of corporations could not occur unless and until the formation of a reliable and robust central government).

^[21] Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860, at 69-79 (1948).

^[22] Steven G. Calabresi & Larissa Price, Monopolies and the Constitution: A History of Crony Capitalism, Northwestern Faculty Working Papers (2012), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1213&context=facultyworkingpapers (discussing debate pertaining to power of incorporation at the constitutional convention).

^[23] See Jefferson’s Opinion on the Constitutionality of a National Bank: 1791, American Battlefield Trust (accessed Mar. 26, 2024), https://www.battlefields.org/learn/primary-sources/jeffersons-opinion-constitutionality-national-bank-1791

^[24] Amer, supra note 18, at 46.

^[25] Id.

^[26] See, e.g., Gregory Ablavsky, Empire States: The Coming Dual Federalism, 128 Yale L.J. 1792, 1818 (2019) (citing Considerations on the Order of Cincinnati, BOS. GAZETTE & COUNTRY J., May 26, 1788, at 1) (recounting how the Massachusetts State Legislature took action against a chartered organization attempting to usurp the State’s powers).

^[27] See Kennedy, supra note 9.

^[28] Bernard Schwartz, Gray v. Powell and the Scope of Review, 54 Mich. L. Rev. 1 (1955) (reflecting on administrative law and quipping, “The life of the law may not be logic, but a legal system that is not logically consistent internally leaves much to be desired.”).

^[29] 462 U.S. 919 (1983).

^[30] See Charlie Cray & Lee Drutman, Corporations and the Public Purpose: Restoring the Balance, 4 Sea. J. Soc. Just. 305, 306 (2005) (“The limited-liability corporation dominates our entire society.”).

^[31] Austan Goolsbee, Big Companies Are Starting to Swallow the World, N.Y. Times (Sept. 30, 2020), https://www.nytimes.com/2020/09/30/business/big-companies-are-starting-to-swallow-the-world.html.

^[32] Nick Ludlum, FCC Shows How Wireless Is Delivering Much-Needed Home Broadband Competition & Closing the Digital Divide, CTIA (Mar. 14, 2024), https://www.ctia.org/news/fcc-shows-how-wireless-is-delivering-much-needed-home-broadband-competition-closing-the-digital-divide.

^[33] See generally Michael Luca et al., Is Google degrading search? Consumer Harm from Universal Search, Harv. Bus. Sch. NOM Unit Working Paper No. 16-035 (2015), https://www.law.berkeley.edu/wp-content/uploads/2015/04/Luca-Wu-Yelp-Is-Google-Degrading-Search-2015.pdf.

^[34] Paul Berger, Covid Slashed Consumer Choices. This Is Why They Aren’t Coming Back., Wall St. J. (Jan. 1, 2024), https://www.wsj.com/articles/covid-slashed-consumer-choices-this-is-why-they-arent-coming-back-1e1c89f3.

^[35] Joseph E. Stiglitz, America Has a Monopoly Problem—and It’s Huge, The Nation (Oct. 23, 2017), https://www.thenation.com/article/archive/america-has-a-monopoly-problem-and-its-huge/.

^[36] Ablavsky, supra note 26, at 1818.

^[37] Cray & Drutman, supra note 30, at 307.

^[38] Schwartz, supra note 28, at 1-2.

^[39] Maeve P. Carey, Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register, CRS 1 (Sept. 3, 2019), https://sgp.fas.org/crs/misc/R43056.pdf.

^[40] Alfred B. Street, The Council of Revision of the State of New York: Its History, A History of the Courts With Which Its Members Were Connected; Biographical Sketches of Its Members; and Its Vetoes 276 (ed. William Gould, 1859) (recounting the observation of the Council of Revision in New York that if the trend of incorporation continued unabated then “the State, instead of becoming a community of free citizens pursuing the public interest, may become a community of corporations . . . composing an aristocracy destructive to the Constitution and independence of the State.”).

^[41] Will Knight, Forget Chatbots. AI Agents Are the Future, Wired (Mar. 14, 2024), https://www.wired.com/story/fast-forward-forget-chatbots-ai-agents-are-the-future/.