My Textualist Moment — the Use of the Words “Person” or “Persons” or “People” in Our National Bill of Rights

There has been much talk lately about whether corporations are or should be “persons” under the First Amendment, both for free speech and free exercise purposes.images

In a textualist moment, this got me to thinking about the wording of our federal Bill of Rights and what light it might shed on this. Let’s start with the First Amendment. Its focus is a limitation on the powers of Congress and makes no mention of persons until the reference to “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Second Amendment mentions people in a similar way: “the right of the people to keep and bear arms, shall not be infringed.”

The Third Amendment uses the word “Owner” but not person or persons or people.

The Fourth Amendment is quite explicit: It speaks of the “right of the people” and the rights of “persons.” So, too, with the Fifth Amendment and its reference to “person.”

The Sixth Amendment mentions the rights of “the accused” and likewise uses the male pronoun “his” and “him” in this regard.

The Seventh and Eighth Amendments are silent on the personhood question.

The Ninth Amendment, of course, refers to the rights “retained by the people.”

And the Tenth Amendment reserves rights to “the states respectively, or to the people.”

There you have it. What to make of it? Well, I leave that to others to decide since I am not a bona fide textualist fundamentalist, though I do think text matters as a part of the constitutional calculation of things. Y tu? What do you think? (Feel free to respond in either your individual or corporate capacity.)

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4 Responses

  1. Jordan says:

    check out the reasoning in Verdugo-Urquidez (U.S. 1990), aliens are not “the people” but they are persons, accused, etc. re: 5th & 6th

  2. Joe says:

    The different terminology has some importance but with equal protection principles and Kennedy’s comment in his separate opinion in the case cited by the first comment:

    Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.

    only so much. So, e.g., “the people” in the 1A very well might in some sense particularly apply to citizens or some larger class of people but not foreigners in respect to campaign contributions (they were treated differently in a post-Citizen United case, for instance), but foreigners still would have “1A rights” even then to some extent. Even if, quoting Stevens in the V-U case, we don’t read “the people” to cover “lawfully present.”

    The 9A, e.g., entails rights of “the people” in this country in some sense particularly, our traditions and practices affecting the determination, as compared to some collection of natural rights or whatever that might be developed elsewhere. Meanwhile, the basic protections of due process, e.g., would clearly be enjoyed by all “persons,” even non-citizens. Still, the 3A wording is interesting, including possible extraterritorial applications.

  3. Jordan says:

    concerning human rights and the Ninth Amendment, see, e.g., 60 Cornell L. Rev. 231 (1975)