Does “We the People” include women? Persons of color? The poor? Who bears the risk when legal language is imprecise? (More)

Not the Same, Part III: We the People, and Risk (Non-Cynical Saturday)

This week Morning Feature examines the differences between the Democratic and Republican parties. Thursday we considered their views on who should bear the risk in health and retirement. Yesterday we looked at their views on risk in business and banking. Today we conclude with their views on who “We the People” are.

Who is a “person?”

There’s been a lot of debate about personhood lately. The Supreme Court’s decision in Citizens United and Mitt Romney’s “corporations are people” remark invite discussion of whether or to what extent corporations are legal persons. Although they have lost twice in Colorado and lost last year in Mississippi, the self-styled “Personhood Movement” pursue state constitutional amendments declaring that a fertilized ovum is a legal person. Such amendments may appear on ballots this November in Arkansas, Colorado, Ohio, and Oklahoma.

So if we’re debating whether corporations and fertilized ova are legal “persons,” it should be obvious that women and people of color are legal “persons,” right? Well, not exactly. Section 1 of the Fourteenth Amendment reads:


That seems clear enough. The first sentence guarantees citizenship to all “persons” born or naturalized in the U.S. “and subject to the jurisdiction thereof.” The first clause of the second sentence guarantees that all “citizens” receive all of the privileges and immunities of citizenship, the second clause requires states to ensure that any “person” receives due process of law, and the final clause requires states to ensure that any “person” receives equal protection of the law.

What do those words mean?

It turns out that seemingly clear language isn’t so clear. The Citizenship Clause includes the qualifier “and subject to the jurisdiction thereof.” That excludes children born in the U.S. to foreign diplomats, who have diplomatic immunity from most federal and state laws. Does it also exclude children born in the U.S. to undocumented immigrants? The federal and state governments can arrest, try, and imprison undocumented immigrants and the federal government can deport them, yet Republicans introduced a bill last year that would declare undocumented immigrants and their children are not “subject to the jurisdiction” of the U.S. or state governments because they are not legal residents.

And what about the “persons” guaranteed Due Process and Equal Protection? As we saw last week, the State of Texas argued in 1950 that “persons” did not include Latinos. While the Supreme Court unanimously disagreed in 1954, we can’t be sure what today’s Court would say. For example, last January Justice Antonin Scalia said “persons” does not include women. In his dissenting opinion in Lawrence v. Texas, Justice Scalia argued that “persons” does not include LGBTs, employing the bizarre logic that anti-LGBT laws apply equally against everyone. Justice Clarence Thomas joined in Scalia’s dissent, and Virginia Attorney General Ken Cuccinelli was even more explicit:

State universities are not free to create any specially protected classes other than those dictated by the General Assembly. Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment.

Originalism and risk

Justice Scalia and Attorney General Cuccinelli both advocate originalism, a legal theory that claims constitutional words and phrases should be interpreted based on how they were commonly understood at the time they were enacted.

For example, when the Fourteenth Amendment was ratified in 1868, women could not vote in most states. Several states barred women from certain professions, and some still did not allow married women to own property or sign contracts independently of their husbands. The ratification of the Fourteenth Amendment did not immediately overturn such laws. Thus, originalists argue, “persons” was not commonly understood to include women – in that context, at that time – and courts should not interpret Fourteenth Amendment “persons” to include women today. The State of Texas made a similar argument in 1950 regarding Latinos, and Republicans make similar arguments today regarding LGBTs. Like many conservative arguments, originalism tells a story that feels sensible.

Yet it ignores a long-standing general principle of legal writing: that ambiguities in a statute or contract should be construed against the drafter. At first glance that principle feels wrong. Shouldn’t the drafters be the people who best understand what the words mean? They wrote the document, after all!

Yet if you’ve looked warily at a contract and been brushed off with “Oh don’t worry about that,” you understand why this principle exists: it requires those who write a contract, statute, or constitutional amendment to use precise language. The alternative invites lawmakers to hide behind vague language that seems to mean one thing – so it will be more easily accepted – yet will later be argued to mean something else. If you want a law to mean X and only X, then write it to say X and only X … and see if you can get it passed.

“We the People” includes all of us

By this principle, if the Fourteenth Amendment drafters had intended it to include only men, they should have written “men.” They didn’t. Nor did they write “blacks” or “Negroes,” to make clear the amendment did not include other persons of color. Nor did they write “persons who practice natural relations,” as heterosexuals might have been described at that time. They wrote “persons” …

… and the word they chose includes all of us. Even those whose political voice was not yet strong enough to demand and achieve inclusion in 1868.

And that’s what originalism is really about. It says the most powerful people in our society – those who write laws – should not bear the risk of vague language. Instead, originalists argue, the powerless should bear that risk. If people like you didn’t have enough clout to demand inclusion when “persons” was voted on in 1868, then you are not a “person” in 2012.

Originalism fits hand-in-glove with the other topics we’ve discussed this week. Republicans say government should protect the privileged – those who already have wealth and power – and push risks down on the rest of us.

Democrats insist “We the People” includes all of us. The two parties are not the same.


Happy Saturday!