The Perils of ‘Personhood’

From largely opposite – though not incompatible – ends of the political spectrum, two groups are trying to reset the legal definition of personhood. Both are thoroughly misguided, even in terms of their own views.

I have previously written of the absurd idea of abolishing the legal concept of corporate personhood. It would mean that corporations could not be taxed or made subject to law. Bernie Sanders – the Independent, socialist, US Senator for Vermont – has a more limited proposal: that the Bill of Rights should be restricted to ‘natural’ persons, not corporate persons. If such an amendment to the Constitution were adopted then Congress could legally enact a bill to prevent Greenpeace from advocating the theory of anthropogenic global warming. No individual – no ‘natural person’ – could be so prevented, because that would breach the First Amendment, but censoring corporations or NGOs would be fine if the Sanders Amendment were adopted. Art galleries could be prevented from staging shows by gay artists. Unions could be banned from advocating strikes. Is that really what the political left wishes to achieve?

On the right there are initiatives in various states to declare that unborn children are people with full human rights from the moment of conception. Apparently, the advocates of these initiatives do not realize that the states in which they are proposing these initiatives – Nevada and Mississippi, for example – are subject to the US Constitution. No state level law can override Roe v Wade a case decided by the Supreme Court on the basis of the US Constitution.

Roe v Wade established a federal right to abortion. This has been deeply controversial ever since. Social conservatives bitterly oppose the case, and have long argued that the courts should not be the forum in which abortion policy is decided. There are several routes by which, in theory, they might achieve their goal. One would be a Constitutional Amendment – the so-called Human Life Amendment, which many conservatives support. There is nowhere near the required consensus to achieve this. Another would be to persuade the Supreme Court to overturn Roe v Wade. It is absurd to suppose that the Supreme Court would do so at present. Only two members of the present Court are on record as opposing Roe. It may well be that the two justices appointed by George W Bush, who were not on the Court last time it ruled on the matter, would also do so. But to secure five votes, the anti-Roe forces would need to recruit either one of the three justices who have previously vote to uphold Roe, or one of the two appointed by Barack Obama. Neither seems likely.

At least one of the current members of the Court will need to be replaced by a Republican President before the Court will overturn Roe. A new Republican President will need to be elected to at least one, and possibly two, terms first.

The chances of the Court one day overturning Roe are difficult to assess, but the present chances are as close to zero as makes no difference. And whether this route proves fruitful or not, any overturning of Roe has to take place in the federal courts, not state constitutions. These personhood initiatives only keep control of the issue in the courts and away from legislatures, and at a time not conducive to the result conservatives are seeking.

Article provided by Quentin Langley
Lecturer in PR and Political Communications,
School of Journalism, Cardiff University

%d bloggers like this: