Constitutional Personhood

Abstract

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens have the right to bear arms? Do prisoners have the right to vote? Do children have a right to privacy? Yet, while commentators and the Supreme Court have examined the constitutional status of claimants independently, neither the Court nor scholars have examined the broader question of constitutional personhood.

This Article examines this critical question of constitutional personhood. In doing so, this Article traverses concerns that are at once both deeply practical and at the core of constitutional theory. This Article then traces the historical and theoretical developments of constitutional personhood across three classes of claimants who have most frequently and contentiously claimed the protections of the Constitution: corporations, aliens, and felons. These case studies demonstrate the difficulty in identifying when and under what conditions a class will be vested with constitutional personhood, with the Court vacillating in its approach to determining constitutional personhood both between and within the classes. Examining these claimant classes in the aggregate, this Article demonstrates that not only is a unified framework for answering questions of constitutional personhood desirable, but it is also constitutionally required. To that end, this Article proposes a unified approach to questions of constitutional personhood, where both the purpose of the right and fit of the claimant with that right are consistently considered.

Keywords: constitutional law, constitutional rights, rights, First Amendment, Supreme Court