Skip to comments.The New Federalist: America’s Founding Documents and Abortion
Posted on 07/05/2005 4:15:38 PM PDT by strategofr
All Americans, whether pro-life or pro-choice, ought to be dissatisfied with the manner in which abortion has become the law of the land. They should reject the Supreme Courts usurpation of the authority of the Congress to make laws or to amend the Constitution, which is precisely what the Court did in Roe v. Wade by "discovering" in the Constitution "new" rights. Roe v. Wade is in effect a piece of judicial legislation, a clear violation of the principle of the separation of powers.
Those who are pro-choice may now be satisfied with the Courts decision, because it agrees with their view regarding abortion; but what the Court may give, it may also take away. It is entirely possible that some future Court will rule that there is no right to abortion, or will effectively "legislate" harsh restrictions upon the exercise of the right to abortion. If that should happen, to what principle will the supporters of abortion appeal to vindicate the justice of their cause?
Every issue of contemporary American political life, including the vexatious topic of abortion, may be understood better when viewed in the light of Americas founding documents, the Declaration of lndependence, the United States Constitution, and The Federalist Papers, co-authored under the pseudonym "Publius" by John Jay, Alexander Hamilton, and James Madison. The Federalist is not merely of interest to political scientists. It contains great practical wisdom which can help us find solutions to contemporary political problems. In The Federalist Papers, we find the authoritative interpretation of the United States Constitution and the principles upon which it stands. A study of The Federalist will show that the constitutionally proper place to debate and resolve the issue of abortion is, not the U.S. Congress, but the state legislatures. Some may argue that an issue of life and death such as abortion is too important to be left to t he state legislatures to decide; but, as The Federalist states, it is precisely those issues which most of all concern "the lives, liberties and properties of the people" that ought to be decided by the states. Furthermore, there is already a precedent for allowing life-and-death issues to be decided by the states, namely capital punishment. It is permitted under the Constitution, but the states are left to determine for themselves whether and how capital punishment shall be allowed within their respective jurisdictions.
Over the past thirty years, the Supreme Court has ruled in a number of cases involving the constitutionality of certain state laws governing issues of sexual behavior, such as contraception, abortion, and homosexuality. These and similar laws clearly involve important moral and religious principles, and are inherently prone to incite controversy. In striking down these state laws, the Supreme Court may have believed that it was acting in accordance with the spirit of the Constitution; but from the perspective of the authors of The Federalist it acted unwisely and unconstitutionally.
Federalist 45 states the relevant constitutional principle in a clear and forceful way:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce ... The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the state. [Italics added]
This passage reaffirms a principle that is absolutely fundamental for limited government, a principle which the Tenth Amendment states as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved by it to the states respectively, or to the people." That is, if the Constitution is silent about a power, presumption favors its retention by the states or by the people.
Clearly, issues of sexual morality belong in the category of "the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people." Accordingly, from the viewpoint of The Federalist, the authority to decide these issues rests with the states and their citizens. In striking down state laws governing sexual morality, The Supreme Court replaced the judgment of the people, expressed through their duly elected state representatives, with its own standard of morality.
The American Founders were convinced that moral and religious issues are generally better left to be decided by local consensus. They did not believe this because they were moral relativists. On the contrary, they emphatically rejected the view that morality is merely a matter of what one happens to believe is moral. But they also knew that human reason is fallible and easily deceived by passion and self-interest, especially when issues of life and death such as abortion are at stake.
The Founders believed that these issues are so difficult and controversial that wide general agreement on them is unlikely. As Madison said, we are not angels, nor are we governed by angels: we are a society of human beings governing other human beings. We do not possess divine wisdom. Intellectually honest people of good will can and do disagree passionately about the questions most important to human life. Therefore, it would be highly imprudent to attempt to enforce a national consensus on them.
In Roe v. Wade, the Supreme Court usurped the legislative power. It thus closed the normal constitutional outlet for the passions inevitably aroused by controversial subjects, namely, the state legislatures, and denied the public any constitutional means for expressing its will or venting its passions. The debates over abortion and other controversial issues, now raised to a national level, have accordingly become more rancorous and divisive. Thus, not only has the principle of the separation of powers been violated, but also the principle of representation based upon the consent of the governed. No one in America may be said to have consented to a law made by nine judges who are not accountable to the public will.
The Federalist makes clear that the Founders intended the Supreme Court to adhere to a strict construction of the Constitution. Some may argue that the debate over a strict versus a liberal construction of the Constitution is a matter for legitimate disagreement. Others may believe that nothing in the original intent of the Founders forbids the Court from actually malting laws, especially in difficult cases.
This view is refuted, however, by Federalist 81. That paper addresses the concern of those who argued that, if the Supreme Court were a separate and independent branch, its powers would be superior to those of the legislature, because, the "power of construing the laws, according to the spirit of the constitution, will enable the court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body." The opponents of an independent judiciary feared that judges would ignore the plain meaning of the Constitution and feel free to interpret the "spirit" of the Constitution as it seemed to them.
Publius replies that "there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state." The Constitution, he continues, "ought to be the standard of construction for the laws, and ... wherever there is an evident opposition, the laws ought to give place to the constitution."
"But," he continues, "this doctrine is not deducible from any circumstance peculiar to the plan of the [Constitutional] convention; but from the general theory of a limited constitution." That is, built into the very notion of a limited constitution such as ours, is the principle of strict construction. No other principle of constitutional interpretation accords with the principle of the separation of powers.
Even more fundamental to our form of government is the principle that governments are instituted by human beings for the purpose of securing their rights and derive their authority from the consent of the governed. How does our Constitution secure our rights? By setting limits to their exercise. No right secured to us under our Constitution is secured without limit to its exercise.
This applies even to the rights to life, liberty, and the pursuit of happiness, said by the Declaration to be "unalienable." But the Fifth Amendment states: "No person shall ... be deprived of life, liberty, or property, without due process of law." That is, if due process is observed, one may legitimately be deprived of ones life. What happened to the "unalienability" of the right to life? The answer to this question is that "unalienable" doesnt mean "unrestricted." The rights with which we are endowed by "natures God" are insecure in the state of nature--John Lockes name for the human condition outside political society--precisely because they are unrestricted. In the state of nature, there exists no commonly recognized authority with the power to limit the exercise of rights.
Furthermore, because human beings unfortunately tend to try to get their way in spite of the best interests of others, The unlimited exercise of rights leads to chaos. No right secured to us under the Constitution, including the right to life, is secured without limit to its exercise.
Thus, capital punishment is not unconstitutional. It is permitted under the Constitution; but the states are left to determine for themselves whether and how capital punishment shall be allowed within their borders. That decision is left to the voters, which is as it should be. It would be absurd to insist that the prevailing view regarding capital punishment in, say, Mississippi, should prevail in Massachusetts.
Clearly, the public moral consensus on abortion also varies from state to state and from region to region. It is most improbable that we shall ever attain a national consensus on this issue, nor is it in the public interest that we attempt to achieve such a consensus. The resolution offered by our founding documents to the abortion debate is to treat it in the same manner as capital punishment, and to allow citizens to lobby their state legislators to make their opinions heard.
We tend to think that "multiculturalism" and "diversity" are contemporary discoveries; but the Founders knew that in a representative democracy such as ours, there would be profound diversity of opinion over difficult issues like abortion. If we follow the wisdom of the Founders, we shall take the debate over abortion out of the Supreme Court, where it has been decided oligarchically by judicial fiat, and let the voters of the states decide the matter for themselves democratically by voting. This is the clear sense of the Constitution.
Scott R. Stripling, Ph.D., is Director, National Center for Americas Founding Documents, School of Education, Boston University.
Below is some relevant facts about the beliefs of people around the time of the Constitution, in reference to abortion. It is from a Pro-Life site that believes the Constitution supports Right to Life
The Founding Fathers and the Right to Life
By Jameson Taylor
Posted by The Culture of Life Foundation -
"Americas Founding Fathers would have condemned such an opinion as madness. Because both life and liberty are endowments or gifts from God, the proper exercise of liberty requires that man adhere to the laws of God and Natures God in the use of his freedom. When James Wilson stated that life begins with the infants quickening, he was not making an arbitrary decision as to who is human and who is not. Wilsons opinion was based upon a reasonable assessment of the best scientific, legal and philosophical opinions available at the time.
"Had Wilson and the Founders had access to the discoveries of modern biology, they certainly would have agreed that life begins at conception. Medical discoveries in the years following the American Revolution increasingly encouraged American and English lawmakers to come to this conclusion. In 1803, for example, England adopted a law known as Lord Ellenboroughs Act that made it a capital offense to cause and procure the Miscarriage of any Woman quick with child. The law established severe penalties for aborting infants in the first trimester as well: if any Person or Persons shall procure to be used or employed, any Instrument or other Means whatsoever, with Intent thereby to cause or procure the Miscarriage of any Woman not being, or not being proved to be, quick with Child at the Time of administering that then and in every such Case the Person or Persons so offending, their Counsellors, Aiders, and Abettors, knowing of and privy to such Offence, shall be and are hereby declared to be guilty of Felony, and shall be liable to be fined, imprisoned, set in and upon the Pillory, publickly or privately whipped.
"Bouvier, citing Theodric and John Becks 1835 Elements of Medical Jurisprudence, himself questions the age-old idea of the quickening, noting that physiologists, perhaps with reason, think that the child is a living being from the moment of conception. More to the point, Bouviers entry, Foeticide, comments that recently, this term has been applied to designate the act by which criminal abortion is procured. Such scholarship soon bore fruit, with Maine, in 1840, becoming the first state to ban the abortion of infants quick or not.6
"Subsequent federal and state laws banning abortion altogether were a logical development of the Founding Fathers absolute reverence for the self-evident and inalienable right to life. It is no accident that the Declaration, as written by Thomas Jefferson, characterizes the right to life as the first of those three foundational rights for the sake of which government itself is instituted. Where there is no guarantee of the right to life, legitimate political authority simply does not exist. Where there is no guarantee to life for both the weak and the strong, the rights to liberty and the pursuit of happiness for all are themselves at risk. The New Freedom heralded by the Supreme Court and other partisans of the Sexual Revolution has thus turned into nothing less than a new enslavement. Only when we as a nation return to our faith in the Creator who gives us life and liberty will we again be truly free."
This excerpt does not include some important facts, and I am not sure what they are. However, I believe the momentum for anti-abortion laws---of any type, built slowly in the 19th cent in America, an indication that Right to Life (a prohibition on abortion) was hardly, as some claim, so obvious to the Founders that they did not need to be any more specific than refering to Life, to implicitly prohibit abortion.
In making this post, I admit that I am not a knowlegable person on this subject. I imagine this may change quickly.
The Federalist authors were writing about a constitution that did not include the 14th amendment. It's still plenty ridiculous to say that the 14th amendment justifies Roe vs Wade, but a constitutional analysis of the issue (should one even be necessary) shouldn't leave it out, given that that is what the court relied on, after all.
From an Amazon.com review:
Excerpted from Dispelling the Myths of Abortion History by Joseph W. Dellapenna. Copyright © 2005. Reprinted by permission. All rights reserved.
"In Roe v. Wade, Justice Harry Blackmun structured the argument of the majority as around the history of abortion laws. That history built on the work of law professor Cyril Means, jr., and historian James Mohr. Means and Mohr proclaim four theses as summarizing the "true" history of abortion in England and America:
"(1) Abortion was not a crime "at common law" (before the enactment of abortion statutes in the nineteenth century. (2) Abortion was common and relatively safe during this time. (3) Abortion statutes were enacted in the nineteenth century in order to protect the life of the mother rather than the life of the embryo or fetus. (4) The moving force behind the nineteenth century statutes was the efforts of the male medical profession to suppress competition from competing, largely female practitioners of alternative forms of medicine.
"Each of these theses is wrong, but together they form the new orthodoxy of abortion historyan orthodoxy that is used to sustain a claim of a constitutional right to abort. Only by placing strictly legal materials in social, political, and technological contexts can one properly understand what happened in the past and how the law specific to abortion changed through time.
"This book dispels these myths and sets forth the true history of abortion and abortion law in English and American society. Anglo-American law always treated abortion as a serious crime, generally including early in pregnancy. Prosecutions and even executions go back 800 years ago in England establishing law that carried over to colonial America. The reasons offered for these prosecutions and penalties consistently focused on protecting the life of the unborn child. This unbroken tradition refutes the claims that unborn children have not been treated as persons in our law or as persons under the Constitution of the United States.
"The book opens with an extended discussion (in two chapters) of the social practices that framed abortion laws down through the centuries. This discussion explores how abortions were done, and how people otherwise undertook to prevent or dispose of unwanted pregnancies, before the nineteenth century.
"The book then turns to the evolution of abortion laws from the earliest days of the common law in twelfth century England to the opening of the twenty-first century in England and America. Changing medical technologies by the nineteenth century made the practice less dangerous for the mother and more difficult to detect.
"In the nineteenth century, nearly all persons in societyled by feminists, physicians, and religious leadersdealt with the resulting moral challenge by enacting, in legislatures around the world, statutes to repress or prohibit abortion. In the twentieth century, the medical profession perfected the techniques for doing abortions and many men and women found that reducing or eliminating children in their lives best served their personal goals. Many societies then began to manage abortion as a medical problem rather than a legal problem, repealing or modifying the laws prohibiting or restricting access to abortion."
I will get this book from Interlibrary loan if possible, but the except is quite helpful. My view of abortion law history (I was brought up Liberal and received this from standard sources) fits the common mythology described here. Hence, I was wrong. Abortion was generally recognized as a crime in 1789.
So, what are we to think? That the founders assumed that references to Life included unborn children, so it was not necessary to mention the unborn once in the document?
I don't buy it. I suspect that they meant to leave this to the disgression of state legislatures---which is where it ended up, made illegal in every state before 1973 (Roe vs.Wade). I would have to see some pretty strong evidence to the contrary to change my mind.
"The Federalist authors were writing about a constitution that did not include the 14th amendment. It's still plenty ridiculous to say that the 14th amendment justifies Roe vs Wade, but a constitutional analysis of the issue (should one even be necessary) shouldn't leave it out, given that that is what the court relied on, after all."
I am certainly opposed to Roe v. Wade. Any originalist court would throw it out immediately. I am hoping the Right to life movement can be persuaded to adopt the originalist position. If we got an originalist court, 99 percent of legal abortions in the US would be stopped (via passage of state laws). Plus, we would have all the protections provided by real, Constitutional government.
The prohibition would not have applied earlier than that because it was believed that the baby was not alive prior to that point.
Call me crazy, but the abortion issue would become irrelevant if our country would be as aggressive about avoiding pregnancy as it has been in making smoking socially unacceptable. That is, to reintroduce the issue of shame-on-you for getting pregnant. And, truthfully, as a man I recall an older gentleman once saying to a younger man: the most effective form of birth control is the zipper. Keep it zipped and you won't have to worry about an unwanted pregnancy. I wish there was some real manhood in our culture and thant means taking responsiblity for being a real man - i.e. marrying and forming a household BEFORE creating a baby. Seems to me that the abortion 'thing' is too female and not enough male. Sorry to be long-winded but I'm tired of abortion being the guiding 'principle' of our country.
"The prohibition would not have applied earlier than that because it was believed that the baby was not alive prior to that point"
Yes. That matches what I have found. Of course, the Right to life people argue that such a view was simply based on a lack of scientific knowlege, and would logically be updated today to start abortion prohibitions at conception.
True. But the key question is, realizing that abortion was illegal, did the founders intend to include "unborn" children when they referred to Life, in the Constitution. My argument is no, because if you want to protect the unborn child, you say so, in my view. Some Right to Lifers are arguing that there was no need to even mention the issue. I find this disingenuous.
"Just to be clear, "originalist" doesn't mean, prior to any of the amendments. But again, I emphasize that even with the 14th and other amendments, there's no constitutional justification for Roe vs Wade."
I will say this one last time. I am opposed to Roe v. Wade, and any originalist Court would abolish it immediately. You apparently perfer not to hear this, which makes it pointless for me to address you.
"Originalist" applies equally to the original document and the ammendments. Both must be interpreted as the writers originally intended.
"Call me crazy, but the abortion issue would become irrelevant if our country would be as aggressive about avoiding pregnancy as it has been in making smoking socially unacceptable."
Well, your position is eminently sane, which means, in our modern society, you are likely to be called "crazy".
Whoa, easy there, dude! I wasn't criticizing you. I was just making sure we both had the same understanding of the word "originalist", that's all, because the author of the article seemed to be ignoring subsequent amendments. Now that we do have the same understanding of the word, everything's cool.
Believe me, I agree with you on everything you said here, and I wasn't doubting your sincerity at all.
"Whoa, easy there, dude!"
Deepest apologies. Upon looking back on the thread, I confess I cannot figure out specifically why I reacted to you that way. I have, however, been goaded pretty heavily by a Right to Lifer who is insisting I must really be a Liberal. I believe my emotions kicked in and I got confused there.
Thanks for handling it well.