Volume 2, Issue 4
4th Quarter, 2007

Constitutional Personhood

Michael Rivard, Esq.

This article was adapted from a lecture given by Michael Rivard, Esq., during the 2nd Annual Colloquium on the Law of Transbeman Persons, December 10, 2006, at the Florida Space Coast Office of Terasem Movement, Inc.

Mr. Rivard, a business developer and legal advisor from Natick, MA, delivers a gripping legal and moral discussion about Constitutional personhood and how it may pertain to future self-aware machines;  centering on the possibility that these ‘conscious’ machines may very well be deserving of identical or sufficiently similar inalienable, Constitutional rights inherent to humankind.

When I was writing this article back in 1991 as a student, people on the law review thought I was a bit nuts. They thought no one would ever read this; no one would ever care about this. But I owe them a lot of thanks because they pushed me very, very hard as a result of their disbelief.  In the end, it was really a very solid Law Review article.

The first question is “What is a Constitutional Person?”  What does this mean? A constitutional person is simply a label used to describe one to whom constitutional rights are granted. That is all that it is; it is a threshold issue. If you are not a constitutional person then you simply have no constitutional rights. You may have other rights under different legislation, but you do not have constitutional rights - which in our system trump all others.

One example of legal protection outside of constitutional rights is animal welfare statutes. One of the things I encountered when I was writing this article was a reaction of, “Does that mean you can do anything to animals?” if animals are not constitutional persons. No, you cannot. But that is covered in different ways by statute.

In summary, then, who is a constitutional person? My article is based on the law in place in 1991 and1992 when the article was written.  Since then, some changes may have occurred.  Natural persons (humans) are certainly constitutional persons, but are all humans constitutional persons? No. The fetus is not considered a constitutional person under current law. Under all circumstances? No. Children and prisoners have due process rights, but they do not necessarily have other constitutional rights because of their circumstances.


Another category of constitutional persons is juridical persons, which are corporations and other entities.   Here, there is a distinction made between property rights and liberty rights. Property rights have long been recognized as belonging to corporations. Examples include equal protection and due process. But, also, liberty rights have been ascribed to corporations though not necessarily on a consistent basis.

Corporations enjoy freedom of speech and a protection against double jeopardy, but there is no protection, for example, for self-incrimination. What you see as you study the cases on constitutional personhood is that there really is not a consistent legal basis for the important determination of who is and who is not a constitutional person.

To get into a little bit more detail, for natural persons the paradigm is a human adult.  The Framers of the Constitution had these notions about natural rights. They were thinking in terms of rights inherent to an individual as soon as you are born.

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What you find very quickly when you apply this natural rights philosophy in the strictest sense, is that there are complications as we've just went over with different categories of persons like children, prisoners and the fetus. Even so, the constitutional personhood of humans is fairly well worked out, despite a few problems.



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