A.1. Personhood

Only human beings are “Persons” under this Charter.

Legal fictions are sometimes necessary to explain or understand certain legal concepts. Still, it stretches common sense that corporations or other legal entities are now “persons” under the law with the same rights as humans.

The concept of corporate personhood has its roots in history, dating back to the 12^th century in English common law. It began the principle that boroughs, guilds, religious institutions, and similar entities could own property, enter contracts, and sue or be sued as legal entities, separate from their individual, human members. It was a simple legal tool for dealing with associations of persons as whole entities, in and of themselves.

Early America had its corporations, too – state charters created corporations for specific public purposes – building roads, bridges, or canals. They had limited scope and duration. They were also closely tied to public benefit. They were intended for the public good, and profit for investors was secondary.

In 1886, the Supreme Court ruled on a tax question in Santa Clara County v. Southern Pacific Railroad. The court did not rule on corporate personhood, but a clerical headnote has been cited as legal precedent ever since. In this headnote, J.C. Bancroft Davis wrote, “Mr. Chief Justice Waite said : The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion it does.”[1] The actual court ruling did not address that question at all. Whether or not Chief Justice Waite said that, a headnote is supposed to be summary only. It isn’t supposed to be cited as precedent. Still, it has been.[2]

Two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, the court said, “The application of the Fourteenth Ammendment of the Constitution…. The inhibition of the amendment that no state shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject…. Under the designation of ‘person’ there is no doubt that a private corporation is included. Such corporations are merely associations of individuals united for a special purpose….”[3] It is sickeningly ironic that an amendment intended for the explicit purpose of protecting freed slaves was used to protect the most powerful in society only a short twenty years after ratification.

In 1978, the Supreme Court held that a Massachusetts law was unconstitutional. The law restricted corporate spending on ballot initiatives to issues materially affecting their business or property. But the Supreme Court recognized that corporations have free speech rights like individual humans do.[4]

In 2010, corporate personhood was expanded, and corporations were explicitly allowed to spend money as a form of speech and, in a new twist, “independent” campaign expenditures, that is, money given not to candidates or parties, are equally protected, all because corporations are “persons” under the law.[5]

Regardless of the long-standing common law precedent, which I concede, the idea of corporations as persons flies in the face of common sense. When was the last time a corporation served on a jury? When was the last time one registered for the Selective Service? When has a corporation ever been incarcerated? What does a corporation’s right to bear arms look like? Can a corporation vote? These questions are nonsense, or they should be. So is the notion of a corporation as a person.

The primary argument in favor of corporate personhood seems to be that they are made up of persons, so they must be persons. My body is made up of cells, but I am not a cell. Taken as a whole, I don’t function like a cell. The argument is obviously illogical.

The people who “make up” corporations also don’t have a voice in these matters. Only the largest shareholders have a meaningful voice in decision-making. The notion that a corporation has a voice because the people who make it up have voices is laughable, at best.

It also defies a layperson’s common-sense understanding of what a person is. Because of the gross disparity of financial resources, the corporation’s voice is much louder than a citizen’s, and can drown it out.

There are popular opinions to the contrary, but there is nothing legally novel here, except that case law is now enshrined in constitutional language. Anyone in the United States and subject to its laws means every human who isn’t somehow immune to U.S. law. And the last sentence clearly codifies established legal doctrine – “persons” is distinct in definition from “citizens,” because it applies to everyone, regardless of citizenship.

The People of the United States are all the Persons in its territory and subject to its laws, as are those Persons in the sovereign territories of recognized Native Nations. The People include both Citizens and Noncitizens alike.

Given this reasoning, I believe that, legally speaking, life has to begin at birth.

This is a difficult needle to thread. Still, the question needs an answer for legal clarity. Moral truth and ethical clarity belong to philosophers and clergy, not to constitutional law. That being the case, I chose to approach this with an eye to when other rights are considered to take effect. If legal life begins at conception, couldn’t a child sue for invasion of privacy for any amniocentesis, DNA testing, or even ultrasound taken while in utero? That’s an apparently ridiculous example, but it logically flows from the premise that life begins at any point before birth. That’s a position, though, that an overwhelming majority would be unwilling to take. Ultrasounds and other procedures are routine prenatal care, and they have spared many fetal lives.

This passage also neither explicitly allows nor disallows abortion. It does explicitly say that bodily autonomy belongs to the mother until birth.

There is no constitutional definition at the federal life of when life begins. Those who are morally opposed to abortion have long said that life begins at conception. Others have said it begins at viability (a very difficult thing to pinpoint, especially with modern medicine). Others say the question is moot, since it becomes a chicken and egg question – did the DNA make the human, or did the human make the DNA?

This clause will predictably excite critics. The claim will be that it is a novel interpretation of when life begins, and that it explicitly affirms abortion. Neither claim is wholly true or wholly false.

While moral and ethical views on the origins of life differ, this Charter is concerned solely with legal definitions and enforceable Rights. Before birth, no individual can claim or exercise the legal Rights reserved for Persons—such as the Rights to free expression, religious exercise, or habeas corpus. Therefore, under this Charter, legal Personhood begins at birth. Legally, prior to birth, bodily autonomy belongs to the mother.

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[1] Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394, 395 (1886).

[2] See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780-81 (1978)

[3] Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181, 188-89 (1888).

[4] See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

[5] See Citizens United v. FEC, 558 U.S. 310 (2010).