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