Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence.

• Author: Lugosi, Charles I.

ABSTRACT: The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so.

Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood.

There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.

I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change in circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors. (1) Since fetuses and embryos on an objective modern scientific basis are human beings, it may be argued that it is morally wrong to deny unborn human beings the status of personhood. (2) If it is accepted, as I believe, that the unborn members of the human species are human beings, then it is arguable that as human beings they are natural persons as a matter of law. If all this is true, I contend that it is immoral and legally wrong to exclude the unborn human being at any age prior to birth from the constitutional meaning of person under the Fourteenth Amendment to the U. S. Constitution. It is my position that American constitutional law will not conform to the rule of law, and will fail to honor the basic doctrines of equal protection under the law and substantive human rights, until the legal meanings of "human being" and "person" are identical and are mutually recognized as a matter of constitutional law when a new human being is created at the time of conception.

Denial of constitutional personhood to the unborn human being segregates an entire class of the human family making the unborn human being legally separate and unequal to those members of the human family who have been born. The result is that only those wanted children who are chosen to live and who are in fact born become legally recognized as a person following a live birth. For it is birth that marks the current legal boundary when a legal person is recognized in the United States of America, and bestows the constitutional rights of life, liberty and citizenship.

Unlike legally recognized persons, the unborn members of the human family who are not chosen for live birth have a different destiny. These unborn human beings are non-persons in law, and as such, are subject to the will of physically mature and legally empowered persons, normally their mothers. As non-persons, these unborn human beings risk treatment as commodities and property, for they are not legal constitutional persons. Their physical body parts, such as fetal brain tissue, may be harvested as living commodities for use in commercial scientific experiments designed to cure diseases of mature persons, such as Alzheimer's disease. Many non-persons are thus destroyed and forced into the role of disposable slaves designated to advance medical, reproductive and scientific goals such as embryonic stem cell research and cloning. Other non-persons who are the product of in vitro fertilization (IVF) are created outside the human womb and will also never be born, for millions of these non-persons are frozen indefinitely until used for science or ultimately discarded.

Non-persons have no constitutional right to life. Prior to birth, all non-persons, both wanted and unwanted, have no legal rights other than those specifically bestowed by positive law. Prior to actual birth, a non-person's destiny may change at any time. An unwanted human being may become chosen for birth, and a previously wanted human being may become unwanted. Even after birth, there are no guarantees that constitutional personhood will endure, for a transition from person to non-person is possible, if positive law and legal definition makes it so.

As a matter of current American constitutional law, the word "person" does not have the same meaning as "human being," until the process of live birth has been completed. Until then, the law permits parents, doctors, scientists, and judges, amongst others, to openly discriminate between human beings that are chosen for birth and those that are not. Even though in the United States, the Fourteenth Amendment to the Constitution offers a right of equal protection and due process so that no person is deprived of his or her life or liberty, this right is denied to any human being who is not defined as a person--all unborn human beings.

I contend that the Fourteenth Amendment, unlike the Fifth Amendment, which was intended to protect people from government, was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a living constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings that are defined as non-persons, including all unborn human beings, individually, and as a class. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. It is a matter of judicial interpretation.

In the following discussion, I will show that the common law, history and tradition establish that the unborn from the time of conception, were both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. I will further show by comparison that the legal test used to extend constitutional personhood to corporations, which are legally artificial persons, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood.

I maintain that there is no rule of law if the Constitution is interpreted to perpetuate a legal caste system of "separate and unequal," where there is no justice for the unborn. I contend there is no justice for the unborn human being so long as there is denial of equality, respect, dignity, liberty, life, and due process of law. Since the word "person" in the Fourteenth Amendment is capable of being interpreted liberally in an objective manner consistent with the rule of law to include all human beings, not to do so violates the natural law which is the foundation of the Declaration of Independence and the core liberal ideals of equality and human dignity.

Finally, I will argue that all unborn human beings, whether wanted or not, have a right to equal protection and due process under the Fourteenth Amendment. If I am right, then the Constitution gives all embryos and fetuses the right to life and the inherent right to be born, free from the current and future threats of unnatural death and involuntary sacrificial exploitation as subjects in medical experiments.

Relying on the reasoning of the Supreme Court in Brown v. Board of Education, (3) I will show by analogy and the use of paraphrase that the U.S. Supreme Court can overrule Roe v. Wade (4) on the grounds of equal protection alone. Such a result would not return the matter of abortion to the various states. The Fourteenth Amendment would thereafter prohibit abortion in every state.

What follows is a blueprint for constitutional change that will show that the jurisprudence and constitutional text exists for interpreting "person" to mean the same thing as a natural human being.

The Supreme Court has the power to reverse flawed precedent and can now do justice according to the rule of law. There is simply no place in American society for a caste system (5) that discriminates against non-persons.

1. Dividing Human Beings Into Persons and Non-persons

   Does the word "person" in the Fourteenth Amendment include unborn human beings? If it does, then embryonic stem cell research, cloning, the destruction of IVF embryos, and abortion are potentially unlawful. If it does not, as a matter of logic and consistency, cloning, embryonic stem cell research, the freezing and destruction of embryos, and abortions ought all to be lawful, subject to rational regulation.

   To decide whether an unborn human being is a "person" in the constitutional sense, the first steps are to decide what is a human being, and when a human being begins its existence as a living organism. The next steps are to discover what is a person, decide whether a human being is equivalent to a person, and whether a person in the constitutional sense ought to be confined to natural persons born and unborn--that is, human beings that are fully human and are not artificial beings or any derivative or hybrid of any non-human animal...