Reva Siegel, Yale Law School, has posted It's Alive! When the Original Meaning of "Person" Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word:
This Article examines an originalist argument for prenatal personhood—that life from conception is included within the original public meaning of the “person” the Fourteenth Amendment protects—advanced by Josh Craddock, the most prominent proponent of the originalist-personhood claim in the years before and after Dobbs. Under the original public meaning of the Fourteenth Amendment, Craddock claims, the “preborn” are persons entitled to due process and equal protection of the laws so that homicide statutes should apply to “preborn” as well as born persons.
The Article begins by evaluating Craddock’s argument for the original public meaning of person on its own terms, and identifies fundamental flaws in the way Craddock uses dictionary evidence and addresses the textual and historical context in which the Fourteenth Amendment employs the term “person.” It then shows that Craddock is reasoning about abortion inside contemporary frameworks and not as nineteenth-century Americans did. (Craddock’s argument employs a language of personhood that opponents of abortion only began using as they entered into struggles over the Constitution in the era of Roe; Craddock draws on “substantive” originalist methods and advances equal-protection arguments about homicide law that opponents of abortion did not advocate until the twenty-first century, in the era of Dobbs
In concluding, the Article situates Craddock among abortion “abolitionists” who support legislation that provides equal protection to unborn persons by applying homicide law to women who obtain abortions and those who assist them. Abolitionists defend their carceral equal-protection arguments by appeal to constitutional memory (e.g. “person,” Lincoln; Frederick Douglass’s North Star) and in openly religious terms.
--Dan Ernst
