Personhood and the U.S. Constitution
The idea of personhood has been and continues to be a contested concept in American law. There are modern struggles to expand personhood beyond its current boundaries – perhaps extending it to animals, trees, robots, or fetuses. The substance of personhood also continues to change as increased recognition of corporate personhood has restructured how we think about religious belief. Moreover, the recognition of the personhood of gay and lesbian individuals has led to a constitutional order in which states cannot exclude same-sex couples from marriage.
In historical context, legal personhood held less meaning for African Americans before the passage of the Thirteenth and Fourteenth Amendment than it does today. At its inception, the U.S. Constitution permitted the states to implement their own limitations on personhood as it applied to women, indigenous persons, and people of color. In most states, African Americans, whether enslaved or free, were limited in their access to the privileges and rights of legal personhood. Free people of African descent were denied the franchise, could not testify against white persons in court, and often had to use a guardian to bring a suit in contract or tort.
Courts endowed individuals bound by slavery with a liminal sort of legal personhood, defined by a constellation of concepts – person, personal property, real property – that limited access to humanity. This constellation of concepts defined and redefined the boundaries of personhood for enslaved persons and to affirm the rights and entitlements of slave owners. Enslaved persons were persons subject to some criminal laws and required to fulfill obligations to their masters, but could not avail themselves of most legal rights and protections. And this status as person and property entailed that enslaved persons were subject to many legal disabilities. Enslaved persons had no legal recognition as actors before law but, of course, could be acted upon. They had no recognized common law rights to make a contract, to own or devise property, or to sue or be sued in court. They could be beaten or raped by those that own them without legal recourse. And if enslaved persons were abused by those that did not own them, only their masters could recover for property damage to their persons.
This reality underwent important change after the Civil War. The passage of Thirteenth Amendment and the Fourteenth Amendment expanded the scope of legal personhood for African Americans and gave them access, at least in theory, to legal rights that many other persons long enjoyed. By eliminating chattel slavery and extending citizenship and equal protection to African Americans, as historians have argued, the United States undertook a second revolutionary project. This revolutionary project, while imperfectly executed during Reconstruction, took important steps in limiting how those recognized as legal persons could be treated as a matter of law. This revolution, however, was partial, uncertain, and incomplete. And it is still incomplete today, as fast food workers (disproportionately black and brown) organize against low paid wage slavery in the fight for $15, as African Americans struggle to assert that Black Lives Matter, and as women of color struggle for a legal order that recognizes both the right to have children and to choose when not to have children – the essence of reproductive justice.
The juxtaposition of historical and contemporary debates about legal personhood and access to constitutional protections as a person reveals the dialectical nature of personhood in law. Legal personhood is important as a starting point for recognition, and yet not adequate as an end point. Legal personhood functions only as a threshold. It answers a question – the question of who counts as a person before the law. However, that is only the starting point of analysis. The recognition that one gains as a legal person entails no inevitable answers. It contains only the potential possibility of relief and recognition – it does not guarantee it.
With solidarity in the struggle,
Saru M. Matambanadzo, Associate Professor of Law, Tulane University School of Law.