208 Children’s Legal Rights Journal [Vol. 37:2 2017]
and blacks did not make the cut in 1776 when Thomas Jefferson penned the declaration.” 222 The
Constitution’s “Three-Fifths Clause” counted African Americans as three-fifths of a person for
purposes of states’ representation, 223 and referred to them as “other persons.” 224 The legal rights
and protections that African Americans, women and other traditionally marginalized groups enjoy
today did not come from the legal adoption of a biological notion of personhood, but instead
through a patchwork of constitutional amendments, 225 and development of precedent in fact-specific cases. 226 Nevertheless, as the infamous Dred Scott 227 case demonstrates, the judiciary has
always exercised its power to expand or contract the definition of person as it saw fit, even for
regrettable purposes. 228
The focus on “personhood” as a pure legal fiction, however, is best observed in the context
of corporations, 229 which have limited legal personhood extending from case law230 and
legislation. 231 As a judicial construct, the Supreme Court has actively breathed life into the
corporate, non-living, non-sentient juridical person. 232 The Citizens United and Hobby Lobby cases
illustrate that the Supreme Court has extended rights to corporations which were popularly thought
to be reserved for human persons, such as the protection of political speech233 and religious
222 Fukuyama, supra note 16, at 42. Fukuyama makes this observation, noting Transhumanism’s threat to equality
under the law. Id.
223 Paul Finkelman, Affirmative Action for the Master Class: The Creation of the Proslavery Constitution, 32 AKRON
L. REV. 423, 428-29 (1999).
224 U.S. Const. Art. I, § 2. See also Finkelman, supra note 223, at 428-29.
225 For example, the Thirteenth, Fourteenth and Ninetieth Amendments. See U.S. Const. Amend. XIII, IXX, XIV.
226 The incorporation of minorities into the fabric of social equality is evidenced by the long history of Supreme
Court precedent. See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); Loving v. Virginia, 388 U.S. 1 (1967);
Brown v. Bd. of Educ., 347 U.S. 483 (1954); Laurence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S.
Ct. 2584 (2015). All of these cases exemplify the idea that there has been no need thus far to craft a definition of
legal personhood for the law to expand rights and protections to traditionally marginalized groups.
227 Scott v. Sandford, 60 U.S. 393 (1856). In Dred Scott the question was “whether the descendants of [slaves]… are
citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.” Id. at 403.
In arriving at a conclusion, the Court noted: “But there are two clauses in the Constitution which point directly and
specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a
portion of the people or citizens of the government then formed. Id. at 411. In making a distinction between different
types of “persons” the Court concluded that Scott “was not a citizen… within the meaning of the Constitution of the
United States. Id at 427.
228 Legal scholar Michael Rivard notes the Court’s approach, stating: “Rather than developing an underlying theory
of personhood, the Supreme Court follows a pragmatic, result-oriented approach. The Justices seem to grant or deny
constitutional rights on the basis of political expedience or similar considerations, and only then answer the question
whether to extend constitutional personhood.” See Rivard, supra note 17, at 1425, 1465, 1431.
229 See generally Susanna K. Ripken, Corporations are People Too: A Multi-Dimensional Approach to the
Corporate Personhood Puzzle, 15 FORDHAM J. CORP. & FIN. L. 97 (2009-2010).
230 See Trustees of Darmouth College v. Woodward, 1 N.H. 111, 115 (1817) (“A corporation considered as a faculty,
in an artificial, invisible body, existing only in contemplation of law…”).
231 See generally Limited Liability Company Act, 805 ILL. COMP. STAT. ANN. 180/1-5 (2012). Other state statutes
provide similar definitions of “person.” See, e.g., Del. Code Ann. tit. VI, § 18-101 (12) (1992).
232 See Santa Clara County v. Southern Pac. R.R. Co., 118 U.S. 394 (1886) (the Court expressed the opinion that
corporations are persons for purposes of the Fourteenth Amendment).
233 See Citizens United v. FEC, 558 U.S. 310, 342-43 (2009) (“The Court has recognized that First Amendment
protection extends to corporations. This protection has been extended by explicit holdings to the context of political
speech. Under the rationale of these precedents, political speech does not lose First Amendment protection simply
because its source is a corporation. The Court has thus rejected the argument that political speech of corporations or