Friday, June 4, 2010

Do You Know What A Person Is? Part II

On his quest to figure out what this word "person" means, Harry circles every use of it he finds in the Constitution.

Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2 cl. 3; in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-Second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

Harry is literally going through the Constitution and saying, "Well, the unborn don't migrate, they don't run for President, and they're not extradited for crimes. So they must not be people." You know what? I, Taylor Carmichael, also do not migrate. (I am a lazy bastard). I don't run for President. (Ditto). And I am not extradited for crimes. (They haven't caught me). According to Supreme Court analysis, my humanity may be up for grabs.

In a footnote, Harry writes, "We are not aware that in the taking of any census...a fetus has ever been counted." Good point, Harry. The census also does not count people in Peru. I guess nobody in Peru is a human being. Or Iceland. Or Lichtenstein. Not to quibble or anything, but it seems to me as you classify people and objects, you kind of want to make sure you're not fucking it up. I don't know, kind of a big deal.

I am willing to stipulate that many of the people who wrote and ratified our Constitution were probably not thinking specifically about the unborn when they wrote this stuff. And yet this sort of mind-reading is inherently dangerous and problematic. We should never forget that the Supreme Court famously declared in 1857 that all black people--even free black people--were not actually people.

I do not know what images the Framers and Ratifiers had in their mind when they wrote and voted upon that "person" word in all those clauses. Probably some white, middle-aged former Englishman with a wig on his head. Entirely possible they weren't thinking of babies. Or Cambodians. And yet babies, and Cambodians, still qualify as people.

Our Constitution was not written with 2-year-olds specifically in mind. Indeed, I’m sure there are some 2-year-olds running around naked, shitting in the street, and unable to use the English language correctly. Are they closer to animal than person? Okay. Why not, if humanity is up for grabs? Still not sure it's a good idea--or good Constitutional law--to classify these 2-year-olds as legal objects and start killing them off.

I mean, if we're going to be all miserly about interpreting that "person" word, I think it's fair to say the Framers and Ratifiers of the Constitution did not have Harry Blackmun specifically in mind when they used that word. So possibly you too are outside the class, Harry.  Do we have to litigate the humanity of every individual, and run him through your Migration-Emolument-Extradition-Fugitive Slave gauntlet? Or is it okay just to assume the class is kinda big? As in, humanity? 

Call me a big sloppy liberal, but I say if you're a member of humanity, you're a person. Particularly if you're alive.
Why are you saying something different, Harry?

Ordinary people know what people are. We don't actually have to scour the Constitution looking for examples of how people are used in a sentence.

I guess it's possible the Framers of our Constitution intended to allow us a right to kill small children. Actually, this is complete horseshit, but I'll pretend like it's possible. It's an unlikely reading, though, yes? Even if I'm pretending, I'd have to say that's an unlikely reading of a provision that says, "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

Not just an unlikely interpretation, but a really vicious one. So one question for Harry, and other liberal readers of Constitutional text, why would you read the Constitution in the most vicious possible way?

It seems to me that a Supreme Court Justice should only be vicious if the law actually requires viciousness. Sure, be a mean bastard if you have to. But only if you have to. If you got some wiggle room, be a nice guy. 

What is bizarre is when the law is nice and friendly and liberal--all men are created equal, and women too--and you try to create some wiggle room in order to be a mean bastard to the little ones. Or is it the position of Harry Blackmun, Nino Scalia, and every Justice in between, that the Constitution literally requires you to classify small babies as objects?

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