Person

• Author: Kenneth L. Karst
• Pages: 1900-1901

Page 1900

The Constitution contains dozens of references to "persons" but nowhere defines the term. When the Framers of the original document identified persons who might hold federal office or be counted in determining a state's representation in Congress or the ELECTORAL COLLEGE, they used "persons" in its everyday sense?even when they provided that slaves should be counted as "three fifths of all other Persons." Focusing on the allocation of governmental powers, they had little occasion to ponder the philosopher's question: what does it mean to be a person? It was the addition to the Constitution of a body of constitutional rights against the government?first in the BILL OF RIGHTS and later in the FOURTEENTH AMENDMENT?that gave the philosopher's question constitutional significance.

In court, that question is never raised in wholesale terms but always in the context of particular issues. The Fourteenth Amendment's DUE PROCESS and EQUAL PROTECTION clauses, for example, offer their protections to "any person." Should those protections extend to a corporation? To a fetus? A philosopher, asked to say whether a corporation or a fetus more closely resembles some ideal model of a person, might be forgiven for failing to predict the Supreme Court's conclusions in Santa Clara County v. Southern Pacific Railroad (1886) and ROE V. WADE (1973) that corporations were included but fetuses were not. The Court, like many another human institution, defines its terms with substantive purposes in mind.

The notion that a corporation might be a "person" for some constitutional purposes had been suggested early in the nineteenth century. The point was not explicitly argued to the Supreme Court, however, until San Mateo County v. Southern Pacific Railroad (1882). In that case former Senator ROSCOE CONKLING, representing the railroad, made use of the journal of the joint congressional committee that had drafted the Fourteenth Amendment, a committee on which he had served. Conkling strongly intimated that the committee had used the word "person" for the specific purpose of including corporations. The case was dismissed for MOOTNESS, but in the Santa Clara case Chief Justice MORRISON R. WAITE interrupted ORAL ARGUMENT to say that the Court had concluded that the equal protection clause, in referring to a "person," extended its benefit to a corporation?a ruling that has since been followed consistently in both equal protection and due process...