PERSON

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 decisions. Much of the later development of substantive due process as a guarantee of freedom of contract and a protection against economic regulation thus rested on a proposition of law whose basis was never articulated in an opinion of the Supreme Court.

To be a person, for constitutional purposes, is to be capable of holding constitutional rights. Our system of rights is premised on the idea that a right either "belongs" to someone—some person—or does not exist. The doctrines of standing and mootness, as they govern our federal courts, reflect this assumption. We are accustomed to speak of "individual rights." Yet any claim to any right is an appeal to principle—and a principle is an abstraction that governs a great many "cases" not in court. Every claim of "individual" right, in other words, is a claim on behalf of a group composed of all those who fit the claim's underlying principle. Only a person can claim a constitutional right, but every such claim is made by a person as an occupant of a role: a homeowner whose house has been searched by the police, a would-be soapbox orator, a natural father disqualified from having custody of his child.

Although corporations—or even whole states—are capable of asserting constitutional claims, and although every "individual" constitutional right is capable of being generalized to extend to a group, nonetheless there remains an important sense in which we hold constitutional rights as persons. Today's constitutional law recognizes a body of substantive rights founded on the essentials of being a person. Here the philosopher's question must be asked; some model of what it means to be a person is implicit in such developments as the emergence of a right of privacy or a freedom of intimate association.

These rights of "personhood" (to use the Supreme Court's expression in Roe v. Wade) attach to natural persons. They rest on the assumption, usually not articulated, that although each human being is unique, we all share certain elements of our common humanity. The assumption is that each of us is conscious of a continuing identity; has some conception of his or her own good; is capable of forming and changing purposes; has a sense of justice—is, in short a "moral person" and not just a biological organism. Of course, the biological person has received its own constitutional protections: the fourth amendment's guarantee against unreasonable searches and seizures runs in part to our "persons"; a woman's right to have an abortion is based on her right to control the use of her body. It is the moral person, however, who is the focus of the newer rights of "personhood."

The principal doctrinal foundation for these rights has been a renascent substantive due process. Yet similar values form the substantive core of the Fourteenth Amendment's guarantee of the equal protection of the laws. That guarantee originated as part of the nation's response to slavery and to efforts in the postabolition South to create a system of serfdom to substitute for slavery. In law, of course, a slave was not a person; an item of property could claim no rights. Yet the original Constitution's two provisions recognizing slavery referred not to "slaves" but to "persons"—as if the draftsmen, resigned to the necessity of their unholy bargain with the southern states, nonetheless could not bring themselves to deny their common humanity with the men and women held as slaves. Seventy years later, in dred scott v. sandford (1857), Chief Justice roger b. taney expressed quite another view of the Framers' understanding. At the nation's founding, Taney said, blacks had been considered "an inferior class of beings," incapable of citizenship. The modern revival of the Fourteenth Amendment's principle of equal citizenship serves, above all, to protect the claim of each of us to be treated by the society as a person—one who has rights as a respected, responsible, participating member of our community.

Kenneth L. Karst
(1986)

Bibliography

Graham, Howard Jay 1938 The "Conspiracy Theory" of the Fourteenth Amendment. Yale Law Journal 47:371–403; 48: 171–194.

Horwitz, Morton J. 1985–1986 Santa Clara Revisited: The Development of Corporate Theory. West Virginia Law Review 88:173–224.

Noonan, John T., Jr. 1976 Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks. New York: Farrar, Straus & Giroux.

Tribe, Laurence H. 1978 American Constitutional Law. Chap. 15. Mineola, N.Y.: Foundation Press.

Vining, Joseph 1978 Legal Identity: The Coming of Age of Public Law. New Haven, Conn.: Yale University Press.

PERSON. A grammatical and semantic category applying to PRONOUNS and VERBS and used in describing the roles of people and things.

Pronouns

In STANDARD ENGLISH, the first-person pronouns are the speakers(s) or writer(s) together with any others included in the plural (I, me, we, us). The second-person pronouns are the addressee(s) and possibly others in the plural (you and archaic singular thou/thee). The third person pronouns are others being referred to (she, her, he, him, it, one, they, them). MELANESIAN PIDGIN ENGLISH makes a further distinction by having two words to correspond to we, one including speaker, listener, and possibly others (yumi: you-me) and one excluding the listener (mipela, me-fellow: ‘me and someone else’). There can also be different words for you, implying greater or lesser degrees of intimacy or formality, as with French tu/vous, comparable to the archaic and dialectal English distinction thou/you. The distinctions of person are shown not only in PERSONAL PRONOUNS but also in reflexive pronouns (myself) and possessive pronouns (my, mine).

There is no necessary correspondence between the grammatical and semantic category of person. In SPANISH, the formal pronouns usted/ustedes (you, singular/plural) semantically address people but are grammatically third-person pronouns. Usted derives from an original vuestra merced (your grace), and parallels the highly formal convention in English in Does Madam wish to look at some other hats? (addressed to a customer). Comparable usages in present-day English are the royal and editorial we and the generalized you. This use of we is semantically singular while grammatically plural, as in Queen Victoria's remark, ‘We are not amused.’ The generalized you, as in You never can tell, can you?, is second person grammatically but semantically includes others. Usage is sometimes ambiguous between the addressed and generalized you, prompting the question Do you mean me or everybody? Generic or inclusive he is a long-established usage in which the third-person masculine represents both man and woman (Ask anybody and he'll give you the same answer). Those who defend its use argue that sexist bias is not present in it or intended by it, and that the meaning is clear. Those who object to it argue that it misrepresents half the human race and reinforces male bias and social dominance. See GENERIC PRONOUN. In colloquial usage, they is often used instead (Ask anybody and they'll give you the same answer).

Verbs

In highly inflected languages like Latin, person is indicated in the verb itself: amo I love, amas thou lovest, amat he/she/it loves, amamus we love, amatis you (plural) love, amant they love. As a result, pronouns are used for other purposes, such as emphasis. In English, however, only the third-person singular of the present tense normally has a distinct form: he loves, she likes, it does. See VOICE.

per·son / ˈpərsən/ • n. (pl. peo·ple / ˈpēpəl/ or per·sons) 1. a human being regarded as an individual: the porter was the last person to see her she is a person of astonishing energy. ∎  used in legal or formal contexts to refer to an unspecified individual: the entrance fee is $10.00 per person. ∎  [in sing.] an individual characterized by a preference or liking for a specified thing: she's not a cat person. ∎  an individual's body: I have publicity photographs on my person at all times. ∎  a character in a play or story: his previous roles in the person of a fallible cop.2. Gram. a category used in the classification of pronouns, possessive determiners, and verb forms, according to whether they indicate the speaker (first person) , the addressee (second person) , or a third party (third person) .3. Christian Theol. each of the three modes of being of God, namely the Father, the Son, or the Holy Spirit, who together constitute the Trinity.PHRASES: be one's own person do or be what one wishes or in accordance with one's own character rather than as influenced by others.in person with the personal presence or action of the individual specified: he had to pick up his welfare check in person.in the person of in the physical form of: trouble arrived in the person of a short, mustached Berliner.ORIGIN: Middle English: from Old French persone, from Latin persona ‘actor's mask, character in a play,’ later ‘human being.’

person †character, part played; human being XIII; living body of a human being; individual personality XIV; (theol.) distinction of being in the Godhead XIII; (gram.) XVI. — OF. persone (mod. personne) :— L. persōna mask used by a player, one who plays a part, character acted, etc.; perh. of Etruscan orig. The normally developed var. parson (XIV–XVII) has been differentiated with a special meaning; person is a reversion to L. form.
So personable having a well-formed person. XV. — F. †personnable. personage †image, effigy; body of a person XV; person of note; person in a drama XVI. — OF. personage (mod. personnage). personal XIV. — OF. personal, -el (mod. personnel) — L. persōnālis. personality XIV. — (O)F. — late L. personalty personal estate. XVI. — law F. personalté. personate act the part of, IMPERSONATE XVI; represent, typify XVII. f. pp. stem of late L. persōnāre. personify XVIII. — F. personnifier; hence personification XVIII. personnel XIX. — F., sb. use of personnel PERSONAL.

PERSON

In general usage, a human being; by statute, however, the term can include firms, labor organizations,partnerships, associations, corporations, legal representatives, trustees, trustees inbankruptcy, or receivers.

A corporation is a "person" for purposes of the constitutional guarantees of equal protection of laws and due process of law.

Foreign governments otherwise eligible to sue in United States courts are "persons" entitled to institute a suit for treble damages for alleged antitrust violations under the clayton act (15 U.S.C.A. § 12 et seq.).

Illegitimate children are "persons" within the meaning of the Equal Protection Clause of the fourteenth amendment to the U.S. Constitution.

The phrase interested person refers to heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in, or a claim against, a trust estate or the estate of a decedent, ward, or protected person. It also refers to personal representatives and to fiduciaries.