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As many voters in Indiana, Kentucky, and surrounding states went to the polls to elect their next mayor, city councilman, and governor, the voters in the state of Mississippi faced a very different question on their ballots. They were asked to decide if a fertilized egg should be considered a constitutional person in their state. This is no ordinary matter of public policy. Mississippi’s proposed “personhood” amendment to the state constitution would have very broad and serious ramifications for every current citizen in the United States.
The proposed amendment originated in the conservative anti-abortion movement in the United States. In my view, it is simply an attempt to circumvent the serious roadblock that the right to privacy poses for their political views. More importantly however, this proposed amendment shed more daylight on a less well known thought that is rapidly gaining power amongst American conservatives; the creation of new constitutional persons.
Mississippi’s personhood amendment would have granted the rights and privileges of personhood to a previously unrecognized group. Professor Ronald Dworkin discusses the problems of taking such actions in his book Freedom’s Law: A Moral Reading of the American Constitution. Dworkin correctly notes that when we declare someone to be a constitutional person, this grants them both negative rights and positive rights. Simply put, negative rights are rights to non-interference from others. When a negative right is present, it places restrictions on the actions of other persons and the government. So, when we say a person has a right to life, this means everyone else has a duty not to kill that person.
Under an individual rights regime, the government has a duty to ensure rights are not violated. The father of liberal democratic theory, English philosopher John Locke, placed government in the role of arbitrating rights disputes. Even those who are fiercely anti-government, like Congressman and presidential candidate Ron Paul, generally consider this basic function of government to be legitimate. So, if we expand the definition of the constitutional person, the government’s duty to protect individual rights necessarily expands along with it.
What does this mean? Well, it raises several very legitimate questions. Could the government compel a pregnant woman to eat properly to protect the life of her fetus? Would a formal death investigation need to be carried out every time a woman has a miscarriage to see if she is guilty of a crime? How do we handle those fertilized eggs that are frozen in fertility clinics? If a couple was forced to seek the help of modern medicine in order to start their family, should the woman be compelled to give birth to all those fertilized eggs? If a fertilized egg dies in the storage facility at a fertility clinic, can someone be charged with a crime? Under such an individual rights regime, I certainly don’t see how we would differentiate between a woman having a first trimester abortion and allowing an unused frozen embryo to die. There would certainly be no moral difference if we changed our understanding of what being a “person” entails.
There are less serious, but equally valid questions. Would we need to count all the fertilized eggs during the census? Could parents claim all of their unborn children on their taxes? If a pregnant woman travels outside the country, would the unborn person need a passport? If she doesn’t know she’s pregnant and reenters the country, would she be guilty of human trafficking? How far could the government go in a search to enforce these laws? Could a pregnant woman legally drive in the carpool lane? I’ve seen all of these questions raised in the last few weeks. As funny as they might sound, they are very real questions that would need to be answered if we were to adopt such a view of constitutional persons.
The voters of Mississippi saved us from having to answer these questions about the unborn person. They soundly rejected the personhood amendment at the polls. This was the right decision in my opinion. It kept the personhood can of worms closed and forces anti-abortion activists to confront the right to privacy problem and come up with a legitimate argument as to why it should be violated or simply not exist.
There is still another problem we must address though. The proposed amendment in Mississippi is not the only place where conservatives are trying to create new constitutional persons. In 2010, the Supreme Court of the United States granted high order individuals rights to corporations. Professor Dworkin discusses a state’s recognition of a corporation in Freedom’s Law. He explains how a corporation is slightly different in that is has some low order rights, like the right to own property and enter into contracts. However, this is done as a legal entity that simply represents many constitutional persons for the purposes of limited business transactions. Professor Dworkin’s essays in Freedom’s Law were written in the late 1980s and early 1990s. He never considered what 5 conservative justices on the Supreme Court might do 20 years later.
In Citizens United v FEC, the 5 justice majority declared that a piece of paper on file in the Indiana Secretary of State’s office has a right to free speech just like any walking, talking citizen of Indiana does. Just like the Mississippi personhood amendment, this decision creates a new class of constitutional persons, or at the very least opens a door wide to the possibility. This new class of persons not only enjoys some of the negative rights that we do, it possesses an extraordinary amount of resources through which it can exercise its rights. It can use its wealth to flood the airwaves with the views it wants to prevail. It can attempt to influence policy makers just as we can. Of course, most of us don’t have the resources this new class does, so the new class will likely be more successful than its flesh and blood counterparts.
Like the Mississippi Amendment, Citizens United also raises very serious questions. If a corporation has free speech rights, why does it not have other fundamental rights and privileges? If it is a constitutional person, why couldn’t a corporation that has attained the proper age stand for public office in the state where it was incorporated, or excuse me, “born”? What prevents that corporation from becoming Mayor, Governor, Congressperson, Senator, or President? I haven’t heard a good argument as to why a corporation would be granted certain fundamental rights and not these. The right to life and liberty, which includes speech and expression, are a package deal. It’s not an a la carte menu.
Unlike the Mississippi Amendment, Citizens United is not easily defeated. The majority on the Supreme Court would have to change and a similar case would need to make its way through the system and be accepted by the court. Then, we would need a majority of the court to view Citizens United as an aberration that needs to be corrected rather than valid precedent. The only other way to reverse the ruling is to amend the United States Constitution to eliminate the possibility of corporate personhood. That is obviously no easy task, although some members of Congress are proposing to do exactly that.
I haven’t heard a valid explanation as to why a political movement that claims to value “freedom and liberty” more than any other movement would pursue a strategy that limits the freedoms of current constitutional persons. I don’t see the advantages of this idea, other than their campaign contributors list would expand. Personally, I don’t think that many of the proponents of Citizens United or the Mississippi Amendment have thought their positions through. Abortion is an emotional, bloody shirt issue that tends to overtake reason fairly easily in the minds of some. Citizens United is simply about greed. Some corporations want to be able to purchase public policy that improves their bottom line. They couldn’t care less about individual rights.
The people of Mississippi made the rational choice. They made the right choice. Given time, the people of the United States would probably make the same rational choice about Citizens United, hopefully it doesn’t cause irreparable damage in the mean time.