“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we. But as the 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 text of the Constitution uses “person” 22 times. Many instances refer to eligibility to run for office such as president. But two places, Article I sections 1 and 9, 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.
While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship. In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom. 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 simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status. For corporations, personhood grants them the right to free speech, and now free exercise of religion under Hobby Lobby. They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
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. Six states have declared a fetus a person and North Dakota voters may do that this November. But declaring a fetus to be a person 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. Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
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 Lee Majors as 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? When human replicants from Blade Runner kill in the future, will they be persons liable for crimes? Is Data from Star Trek a person? 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. For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.
Note: This was my Constitution Day talk at Hamline.