The Fourteenth Amendment, however, does not draw any distinction between "natural" and "artificial" personhood, and twenty years later corpo- rate lawyers would seize upon that to turn corporations from mere ways of organizing a business into the transnational superpersons that they are today.
Of course, such sweeping ramifications never occurred to Thaddeus Ste- vens or his colleagues who drafted the Fourteenth Amendment. The clause that grants all "persons" equal protection under the law, in context, seems to apply pretty clearly only to human beings "born or naturalized" in the United States of America.
But fate and time and the conspiracies of great wealth and power often have a way of turning common sense and logic on its head, as you'll learn in just a few pages.
What Is a "Person"?
In today's America when a new human is born, the child is given a Social Secu- rity number and is instantly protected by the full weight and power of the U.S. Constitution and the Bill of Rights. Those rights, which have been fought for and paid for with the blood of our young men and women in uniform, grace the child from the moment of birth.
This is the way we designed it; it's how we all agreed it should be. Humans are born with human rights. Those human rights are inherent-- part of the natural order to deists like Thomas Jefferson, given to us by God in the minds of the more religious of the Founders. And those rights are not to be lightly infringed upon by government in any way. They're explicitly protected by the Constitution from the government. We are, after all, fragile living things that can be suppressed and abused by the powerful.
For example, in 2001 then--state senator Barack Obama said in a radio interview on Chicago's WBEZ, 2 speaking of the charges that the Supreme Court under Chief Justice Earl Warren had been a radical or activist court, pointed out that the Constitution was designed not to give us rights but to prevent government from taking our rights. He noted:
To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that gen- erally the Constitution is a charter of negative liberties. [It] says what the states can't do to you. [It] says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf. [Italics added.]
His 2001 reference to the Constitution as a "charter of negative liber- ties" was loudly criticized by his political opponents in 2008 when the tape of the radio interview was publicized, but as a constitutional law professor and scholar he was right. The Constitution doesn't give us rights: it restrains government from infringing on rights we acquire at birth by virtue of being human beings, "natural rights" that are held by "natural persons." The Constitution holds back (restraining government) rather than gives forward (grant- ing rights to people).
While Thomas Jefferson felt it important to add a Bill of Rights to the Constitution (he wrote its first outline in a letter to James Madison), Alexan- der Hamilton spoke and wrote strongly against it, for exactly the same reasons President Obama had mentioned.
"The truth is, after all the declamations we have heard, that the Constitu- tion is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS" 3 (capitals Hamilton's), he wrote in the Federalist Papers (No. 84). His concern was that if there were a few rights specified in the Constitution, future generations may forget that those are just examples and that the Consti- tution itself protects all human rights.
Those few examples may become the only rights to survive into future times, an outcome the reverse of the intention of the Framers of the Consti- tution. Instead of defining a few rights, Hamilton wrote in Federalist No. 84, "Here, in strictness, the people surrender nothing, and as they retain every- thing, they have no need of particular reservations."
Hamilton pointed out that England needed a Bill of Rights because the king had absolute power, but in the United States that power was reserved to the people themselves. Thus, he said, "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous."
An example he gave, particularly relevant today in the light of the recent Citizens United v. Federal Election Commission Supreme Court case, was the freedom of the press written into the First Amendment. "What is the liberty of the press?" Hamilton demanded. "Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable" 4 to try to define it or any right narrowly in a Bill of Rights.
But Hamilton lost the day, Jefferson won, and we have a Bill of Rights built into our Constitution that, as Hamilton feared, has increasingly been used to limit, rather than expand, the range of human rights American citi- zens can claim. And because it's in our Constitution, the only way other than a Supreme Court decision to make explicit "new" rights (such as a right to health care) is through the process of amending that document.
And in American democracy, like most modern democracies, our system is set up so that it takes a lot of work to change the Constitution, making it very difficult to deny its protections to the humans it first protected against King George III and numerous other threats--internal and external--since then.
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