According to both common use and legal dictionaries or reference books of the time, the words “human” and “person” were interchangeable.

For example, we see this in the 1864 Noah Webster Dictionary, as it used the words “human” and “person” as substitutes for one another (6). In addition, Sir William Blackstone, who wrote the most authoritative legal treatise of the era, began his commentaries with a section called “The Rights of Persons” and actually begins it with a discussion of the preborn child and their right to life (7). He goes on to write, “Life is inherent by nature, in every individual, and it begins in contemplation of law, as soon as an infant is able to stir in its mother's womb.”

This mention of life in the womb is supposed to protect life from the moment of detection, not to exclude protection prior to that point. ‘Stirring in the womb’ was the earliest point of detection for those in his time, whereas our technology today confirms beyond the shadow of a doubt that humans are alive, unique, and growing from the moment of conception. Clearly, for Blackstone, if human life existed, legal personhood existed…there wasn't a distinction between the two.

As these commentaries were popular enough to essentially be on the shelves of all lawyers at the time, it is fair to say that this was the common, legal understanding of the word “person.”

Centuries of common law practice consistently treated the preborn child as a person whenever it would be to his benefit. State high courts declared that the preborn “child will be considered in being, from conception to the time of its birth in all cases where it will be for the benefit of such child to be so considered,” according to a 1830s Massachusetts Supreme Court case via Justice Shaw (8).

If fact, by the time the 14th Amendment came along, nearly all the states had codified abortion as a felony in different ways (9), with 28 state statutes classifying it among “offenses against the person” (10). Indeed, the same Ohio legislature that ratified the 14th Amendment wrote, “Let it be proclaimed to the world, and let it be impressed upon the conscience of every woman in the land ‘that the willful killing of a human being, at any stage of its existence, is murder’” (11).

At the time of the 14th Amendment’s adoption, nearly every state understood “person” to include preborn human life.

It’s evident from examining statements made by the framers of the 14th Amendment what their original, expected application of it was: It would protect every human in the United States. It was intentionally designed to be radically inclusive.

We see this through statements made by Senator Jacob Howard, the sponsor of the Amendment in the Senate, who asserted the Amendment’s purpose was to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process” (12).

Representative Thaddeus Stevens called the 14th “a superstructure of perfect equality of every human being before the law; of impartial protection to everyone in whose breast God had placed an immortal soul” (13).  Representative James Brown also asked, “Does the term ‘person’ carry with it anything further than a simple allusion to the existence of the individual” (14)?

Representative John Bingham, the primary framer, intended this Amendment to ensure that “no state in the Union should deny to any human being . . . the equal protection of the laws” (15). He described it, “[B]y putting a limitation expressly in the Constitution . . . so that when . . . any other State shall in its madness or its folly refuse to the gentleman, or his children or to me or to mine, any of the rights which pertain to American citizenship or to common humanity, there will be redress for the wrong through the power and majesty of American law” (16).