Constitutional Personhood

Michael D. Rivard, J.D.

Terasem Movement Symposium

December 10, 2006

What Is a Constitutional Person?

One who is legally recognized by the courts as protected by all or some constitutional rights

Threshold Issue: Must be a “Constitutional Person” to have a constitutional right

One may still have other rights under the law, but not a constitutional right For example, animal welfare statutes may apply

Who Is a Constitutional Person?

Natural persons, i.e., humans All humans? – No

A fetus is not a constitutional person

All circumstances? – No Limits for, e.g., children, prisoners

Juridical persons, e.g., corporations Property rights? – Yes

Examples include Equal Protection and Due Process

Liberty rights? – Yes, sometimes Yes: Freedom of Speech, Double Jeopardy No: Protection against Self-Incrimination

Personhood: Natural Persons

Paradigmatic person: human adults Natural right to liberty and autonomy Influence of scholars like John Locke on the Founders

Complications Children Prisoners Fetus

Personhood: Juridical Persons

Different legal theories Artificial entities

Corporations are creations of the state

Aggregate of natural persons Corporations derive rights from shareholders

Natural entity Corporations derive rights from shareholders but are

separate entities with a corporate “will” determined by management

Nature of the constitutional right Extend constitutional right to the corporation if furthers the

purpose of that right

Personhood: Juridical Persons

Theories applied in different ways Property rights

Long accepted under Aggregate Theory Liberty rights

Aggregate Theory: NAACP Natural Entity Theory: Dow Chemical Extend Purpose Theory: Belloti, Martin Linen

No consistent approach used to determine constitutional personhood of entities No for Self-Incrimination Yes for Double Jeopardy, Freedom of Speech, Search

and Seizure

Constitutional Personhood Defined

Person = Human

Individual Level or Aggregates of Individuals

Sometimes Extended to Legal Entities asNatural Entities or to Further the Purpose

of a Constitutional Right

Personhood Boundary: What Is Human?

Challenges to concept of Person = Human Human-animal combinations Machine consciousness Machine-human combinations

Forces redefinition of constitutional person

Focus on attributes of personhood rather than form or species

Constitutional Personhood Redefined

“If the average, mature member of a species has the capacity for self-awareness, then all members of that species are entitled to a rebuttable presumption of constitutional personhood.”

From Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA Law Review 1425 (1992)

Basis for Theory of Personhood

Self-awareness is needed for recognition of constitutional interests of liberty and autonomy

Maximize utility by conferring rights on those who recognize and appreciate the underlying interests

Apply at level of species or form rather than at individual level due to social bonds among members

Use average member of a species or form to account for individual variations within a species Examples: “Einstein outliers” and mentally impaired individuals

Use rebuttable presumption of personhood to allow flexibility for special circumstances Example: Protect “Einstein” outliers at an individual level rather

than species level Example: Limitations on rights of children and prisoners

Conclusion

Existing law on constitutional personhood is fragmentary and lacks consistent underlying principles

Difficult or impossible to extrapolate from current law to new situations which will be presented by technological advances

A new approach to constitutional personhood has been introduced to stimulate discussion

This new approach may be useful for resolving current issues like fetal personhood