[EL] Constitutional Personhood: a tale of women, fetuses, corporations, animals, robots, and Martians

[Schultz, David A.]

Hi all:

In my exchange with Brad Smith earlier today the subject line referred to
persons, rocks, and Martians, I believe.  What prompted me to respond was
my Constitution Day talk I gave at Hamline last week.  For those who care,
here is an op-ed version (forthcoming) of it.  I hope I can defend posting
on this listserv since it addresses questions about voting and corporate
personhood in light of Citizens United.  Thank you for your patience.

*Constitutional Personhood: a tale of women, fetuses, corporations,
animals, robots, and Martians*.

    September 17, is Constitution Day–a date commemorating the signing of
the Constitution by its framers.  “We the people” are the first three words
of the Constitution. It should be simple to decide who is part of that
“we.”  But as the recent  Hobby Lobby decision showed when the Supreme
Court ruled that a corporation had religious rights, it is not always clear
who or what the Constitution considers a person or a thing.  One would
think that it is simple–persons have rights, property does not.  The
reality is that throughout American history the constitutional line between
property and personhood has been thin and contentious.
     The Constitution uses “person” 22 times.   Many refer to eligibility
to run for office such as president.  But two places refer to “other
persons” when discussing slaves for the purposes of determining
congressional representation, apportioning taxes and regulating slave
trade.  They and  Indians were to be counted as “three-fifths” of white
male persons when it came to representation. However, in the 1856 Supreme
Court decision Dred Scott v Sandford,  Chief Justice Taney declared that
while slaves were people the Framers did not intend them to be considered
persons with rights.  Using the Fifth Amendment that stated that no owner
shall deprived property without due process of law, slaves were declared
possessions of their owners.
    Slaves and Native-Americans were not the only constitutional outcasts.
As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the
Continental Congress to “remember the ladies” when they met to declare
independence.  Yet in the 1875 Minor v. Happersett decision the Supreme
Court acknowledged women to be persons and citizens yet nonetheless could
be denied the right to vote.  A decade later in County of Santa Clara v.
Southern Pacific Railroad Company the Supreme Court accepted as given that
corporations were persons under the Fifth Amendment. Property had rights,
women not.
    Children are persons and at one time in cases such as Tinker v. Des
Moines the Supreme Court declared that the Constitution protects them.  Yet
minors cannot vote and they face many legal restrictions on their behavior
ranging from due process to smoking and drinking.  Resident aliens are
persons, but enjoy fewer rights than citizens. Undocumented individuals
should enjoy no rights according to some.  And since 9-11, it is not
altogether clear what rights persons detained at Guantanamo Bay deserve.
    The battle over personhood and property continues to perplex American
society and constitutional scholars.  Property is afforded significant
constitutional protection and  challenges to land use, eminent domain, and
regulatory laws often assert ownership rights. The 1973 Roe v. Wade
decision legalizing abortion declared that “person” did not include the
unborn.  Yet the Court did not say that the fetus was property, it was
something in between requiring a balancing of its rights against the
mother.  A fetus is not a person but many states criminalize women who
smoke, drink, or do drugs while pregnant.  Some want the law to declare a
fetus a person–but that still will not resolve what rights it has.
    Consider new frontiers in the battle for personhood.  Animals are
legally property but laws ban cruelty and maltreatment.  Advocates urge
that primates such as bonobos have a sufficient sense of intelligence,
self-awareness, or pain that they are morally indistinguishable from humans
and therefore should have their rights respected.
    Other frontiers sound more science fiction.  While the Supreme Court
declared in its 2013 Molecular Pathology v. Myriad Genetics that human
genes could not be patented, the case highlighted the increasingly fine
line between human or person and artificial.  The 1970s television show The
Six Million Dollar Man featured a human re-engineered with artificial parts
and computers.  Is a future six million dollar man a person?  Consider Hal,
the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal
is turned off is that computercide?  Is Data from Star Trek human?  When
human replicants from Blade Runner kill in the future, will they be persons
liable for crimes?  Finally, assume the proverbial aliens from Mars land on
Earth, will the Constitution consider them persons entitled to rights?
    Hobby Lobby thus demonstrates whether something is a person or property
is only the beginning of  a constitutional debate about rights.  It also
shows how controversial that determination is.


-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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