On February 16th 2024, the Alabama Supreme Court released a decision that, for all intents and purposes, designated embryos (even those located outside of the uterus) to be people under the law. The ripple effect from this decision was immediate, resulting in IVF centres within Alabama–fearing potential legal action–shutting down. Simultaneously, an all-too-common debate was reignited throughout the United States: who, or what should be considered a person?

The Self

For centuries, the heavyweights of Western philosophical thought have wrestled with the existential concept of “the self.” Many consider this idea to be foundational to not only how we see ourselves, but to how we ought to regard one another. Once a common framework for individual and collective existence is established, it is presumed that concrete answers about right and wrong, rationality and irrationality, and the correct means of governing both social and political bodies can be reached. 

Unfortunately, reaching an agreement on what constitutes “the self” has proved to be an unending task rife with disagreement. Some of philosophy’s most influential thinkers, including Kant, Hume, Freud, and Locke, have reached very different conclusions about how we should consider the self. Moreover, the plethora of disagreement only grows when the focus is shifted to the political: very quickly, the idea of a sense of self morphs from an introspective quandary on the nature of being to a moral matter regarding what it means to be part of a political community. Just as Western theoretical philosophy has reckoned with the concept of the self, political philosophy has spent centuries participating in an equally impassioned debate about who, or what, should be regarded as possessing a sense of “self”. This debate is of utmost political importance: it decides who is worthy of moral consideration by the state. This debate underscores almost every major socio-political problem we face in the modern day, from criminal justice and capital punishment to racial inequality and abortion. 

The Political Use of Personhood

The struggle to define the members of our political and moral community has led to the fervent and seemingly unending debate of “personhood.” Philosophically, the state of being a person and the state of being human are not necessarily synonymous. While the state of being human is established genetically, the state of being a person is a moral matter, one that is often disagreed upon. There are non-human entities that some argue seem worthy of moral personhood, such as hyper-intelligent animals and artificial intelligence. Furthermore, there is a category of humans whom society often considers to have forfeited their right to personhood, such as those who commit reprehensible crimes or unthinkable acts. 

Several prevalent theoretical frameworks have emerged to try and make sense of how to define personhood. The first of these frameworks is a genealogical one, known as the Genetic Criterion, which posits that having human DNA is the sole criterion for personhood. This framework potentially results in strange inclusions to personhood, such as cells and corpses. The second framework, the Cognitive Criterion (suggested by American philosopher Mary Anne Warren), outlines five different requirements that must be met to achieve personhood: consciousness, reasoning, self-motivated activity, capacity to communicate, and self-awareness. At its core, this framework requires some level of physical and cognitive ability for a being to be considered a person. Unlike the Genetic Criterion, the Cognitive Criterion can seem overly exclusive, ruling out very young children and the disabled or incapacitated. Third is the Social Criterion, which designates that personhood is relational: someone or something gains personhood when those around them consider them to be a person. Finally, there is a gradient theory of personhood. This theory considers personhood as a continuous rather than binary category; there is a scale on which an individual can be placed. The result of this theory, however, is that some individuals arguably have more personhood than others. 

How personhood is applied within US constitutional law, however, comes down to a matter of value. The state signals who or what it considers to be of moral, economic, or social value through its designation of personhood, seemingly making and breaking the categories included at free will. However, by following the history of personhood designations by the state, we can reveal a comprehensive outline of the individuals most and least valued by interpretations of US law.

The History of Personhood in the United States

Since its founding, the United States has undertaken the act of including and excluding groups and entities from constitutional considerations of personhood with shocking frequency. Here are just a few of the most notable instances:

1787: The 3/5ths Compromise

Perhaps the most well-known instance of defining US personhood appears in the United States Constitution. Famously, Article 1 Section 2 of the Constitution established the infamous “3/5ths Compromise,” which extended personhood to 3/5ths of the enslaved population. This was done purely as a strategic electoral matter, as all other designations of personhood had already been stripped from these individuals. Within the same breath, this provision also excluded many Native Americans from counting as persons under the law. In its totality, this clause further reinforced the extent to which individuals of colour in the United States were disregarded as people entirely, seen merely as a manipulable statistic through which to gain electoral power.  

1857: Scott v. Sanford

70 years later, the Supreme Court decision in Scott v. Sanford reinforced a racialised conception of personhood. Dred Scott, an enslaved man who had been held in bondage within a free state before being returned to a slave state, sued for his freedom, following a previously established precedent. However, the Court ultimately decided that Scott was not a person at all, but merely property in the US: enslaved individuals were not citizens and therefore not entitled to protection from the federal government. Denial of citizenship has been an abhorrent way of denying individuals personhood and protection under the law throughout US history. In a related vein, legal devaluation is currently being reintroduced within the context of immigration, as some conservatives, including former president Donald Trump, suggest an end to birthright citizenship.  

1886: Santa Clara County v. Southern Pacific Railroad

One of the most interesting expansions of personhood came in the Santa Clara County v. Southern Pacific Railroad decision in 1886. It declared that the protections of the 14th Amendment covered both corporations and “natural persons,” giving birth to the notion of “corporate personhood.” Legal scholars argue that since this decision, the legal rights of corporations have been vastly expanded by the Supreme Court, while corporate responsibilities have grown sparser. While corporations are not given all the same rights as “natural persons” under the law, this case marked the beginning of a steady upward climb for corporate America. Citizens United, which expanded the ability of corporations to play a significant role in American elections via campaign financing, sparked newfound debates regarding corporate personality, resulting in Robert Reich coining the razor-sharp phrase “I’ll believe a corporation is a person when Texas executes one.”

1927: Buck v. Bell

Perhaps a lesser-known decision to the general public, Buck v. Bell upheld the Virginia Eugenical Sterilization Act. Under this act, individuals within state institutions who were considered to have “hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy” were allowed to be forcibly sterilised. After the Supreme Court decided to uphold this act, the rate of sterilisation in the state increased to its highest recorded rate: an estimated 7,325 individuals were sterilised under this law. This decision appeals to the gradient theory of personhood, under which some institutionalised individuals are simply considered less of a person than others. 

2024: James LePage et al. vs The Center for Reproductive Medicine et al.

All of this brings us to the aforementioned Alabama Supreme Court decision. This case concluded that an Alabama law, entitled the Wrongful Death of a Minor Act, applied to “all unborn children, regardless of their location,” a decision which included frozen embryos within the process of IVF. While many in the US have argued that fetuses should be designated personhood, this stark move goes even further in including external embryos as well. Hospitals and mothers undergoing IVF, concerned that they may now be held criminally liable for any complications in IVF treatment, have expressed fear about the future of treatment. 

Conclusion

The history of personhood in the United States exemplifies centuries of legal marginalisation of people of colour, women, and the disabled. Furthermore, the notion of corporate personhood shows the shocking lengths the state is willing to go to protect corporations. The treatment of personhood in US constitutional law shows exceptionally well who is valued and who is not within the American moral, social, and political systems. Unfortunately, legal systems often uplift the powerful and fail to protect those who need it most.

by Freya Blackmore

Cover Image Source: Matt Hrkac (distributed via CC BY 2.0)