Constitutional Persons:An Exchange on Abortion

FIRST THINGS ^ | JAN 2003 | Robert H. Bork & Nathan Schlueter

[Remedy]

Is It Time To Reevaluate Pro-Life Strategy?

Nathan Schlueter

• Roe v. Wade and its progeny not only challenge the legitimacy of the Court, with their highly partisan and tendentious reading of the Constitution, they challenge the legitimacy of the entire government, a government that tolerates, and often even encourages, the mass destruction of those human beings who are most innocent and defenseless.

Do Laws and Standards Evolve? Douglas W. Phillips, Esq. Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation. Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the notion that the Constitution must be interpreted in light of the meanings intended by the Framers.

• Congress is clearly given the power in Section Five of the Fourteenth Amendment to remedy both hostile state action and state failure to secure the constitutionally protected rights of persons. The unborn person reading would make it constitutionally incumbent upon states to secure the basic rights of all persons in their jurisdiction without discrimination, and would enable Congress to pass remedial legislation protecting those same rights in states that fail to do so.

Federalist No. 51 ...It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure....Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects...Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

• Metaphysical realism regarding both the identity and the dignity of the human person is the fixed point around which our political order revolves. Without it, there can be no resistance to the ever–encroaching influence of pragmatic and utilitarian conceptions of human dignity.

Nihilism and the Law All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinary, unappetising prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cane and Abel. Neither reason, nor love, nor even terror, seems to have worked and made us "good", and, worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.

---

Robert H. Bork

• Blackmun invented a right to abortion

, just as Schlueter has invented a complete prohibition of abortion.

Impeaching Federal Judges:A Covenantal And Constitutional Response To Judicial Tyranny

WallBuilders | Resources | Evolution and the Law:"A Death ... Perhaps the first individual successfully to champion this belief was Christopher Columbus Langdell (1826-1906), dean of the Harvard Law School. Langdell reasoned that since man evolved, then his laws must also evolve; and deciding that judges should guide the evolution of the Constitution, Langdell introduced the case law study method under which students would study the wording of judges’ decisions rather than the wording of the Constitution.

• Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that. …Perhaps Roe may one day be whittled away by new appointees to the Court, though unless an unforeseeable cultural–political shift occurs, such candidates will have great difficulty in winning Senate approval. Dim as are the prospects for the demise of Roe, it is not imaginable that any Justice, let alone five of them, would rule that the Constitution prohibits all abortion, no exceptions.

Senate Is to Advise And Consent, Not Obstruct and Delay

• …Scalia is quite right that the Constitution has nothing to say about abortion.

The Case For and Against Natural Law That federal judges, Mr. Bork included, have not been learned in the natural law is one of the educational misfortunes of our age. When the time is out of joint, we can repair to the teachings of Cicero and Aquinas and Hooker about the law of nature, in the hope that we may diminish man's inhumanity unto man. The natural law lacking, we may become so many Cains, and every man's hand may be raised against every other man's.

[Remedy]

ping

[Cicero]

There were some good follow-up letters to this exchange in the next issue of First Things. The most important point made, as I remember, is that the idea of what a person is evolves over time. And of course science has evolved over time. We now know, basically, that a fetus is alive and, of course, is human. By most definitions, an unborn baby is a person. But if Bork and the conservatives on the court don't see it that way, we have some persuading to do.

[7 x 77]

My rule is to read the article before commenting, but since I only have 3 hours before bed I'm going to update my rule in the light of what I judge to be current, state-of-the-art thinking.

I don't think it matters what the justices think of the status of unborn children as long as they follow the Constitution and let the country's legistors decide the law.

[jwalsh07]

The Fourteenth Amendment starts by referring to "all persons born or naturalized in the United States" and provides that they are citizens of the United States and of the state in which they reside. In the same section, it is provided that no state shall "deprive any person of life . . . without due process of law." Since this due process clause was carried forward from that of the Fifth Amendment, one would think it referred to the same persons. That inference is supported by the Amendment’s speaking of persons born or naturalized. None of these categories include unborn children. Thus, both the history and the texts of the two due process clauses demonstrate that they have nothing to do with the issue of abortion.

Neither does either category include unnaturalized or illegal immigrants. Perhaps I am misunderstanding Judge Bork but my reading of this paragraph would, of necessity, also deny the right of life to the aforementioned.

I think his reasoning here is faulty. I know I'm just a blue collar guy and he's Judge Bork but I call'em as I see'em.

[jwalsh07]

I don't think it matters what the justices think of the status of unborn children as long as they follow the Constitution and let the country's legistors decide the law.

Well, that's all well and good but legislators make laws and the judiciary interprets and rules on their Constitutionality.

The question at hand is do the fifth and fourteenth amendments guarantee the right to life of unborn persons. That is a judicial function but it does not prevent the legislature and the states from amending the Constitution to specify such.

[Remedy]

Persuasion will only come in the form of a genuine threat of impeachment or appointment of five or more genuinely pro-life judges.

SIDE NOTE - This is the second of only two articles ( the first To end all culture wars) in which my first response (post#1) mentioned ancient Cicero and you have been the first to reply to both. Once is an anomaly, two is a coincidence and should this occur in a future post - the third time would be a trend….

[Remedy]

Russell Kirk's statement (calling'em as he saw'em) about Bork, et.al "have not been learned in the natural law is one of the educational misfortunes of our age", may be the cause of his and others faulty reasoning on some issues.

S.C.O.T.U.S needs replacements such as Jay Sekulow, Matt Staver, Tom Jipping, that Coulter gal, and Judge Moore down in Bama.

There is no requirement for a judge to even be a lawyer in the first place. So, put Limbaugh in there with them.

[MHGinTN]

You are absolutely correct, John. What Bork has asserted leaves out certain classes of individual humans who are addressed before the law anyway as human persons, though not human citizens. It would be instructive to note how a court deals with these 'non-persons' when they land in court or are confronted by law enforcement personnel ... their personage is assumed! This flies in the face of abortion rulings when applied to disenfranchised the unborn since the absence of definition before the law is in no way applied to disenfranchise the non-person illegal immigrant. What prevents the court from applying assumed personhood to the clearly alive, sensing unborn is 'convention' ... slaughter of the innocent is nothing but accepted convention, thus disenfranchisement again (as with slavery in the past) falls on tacit agreement to allow it regardless of morally or ethically right. It is a convention of twisted society in which we dwell ... and tacit acceptance leads directly to a norm, if exploitation may be profitable!

Soon, that twisted convention of disenfranchisement by tacit agreement will be applied to embryonic and fetal individual human beings, in order to legally exploit individual humans for their body parts ... cannibalism is about to be convention in our twisted, 'amoral' society.

[spunkets]

"Thus, both the history and the texts of the two due process clauses demonstrate that they have nothing to do with the issue of abortion."

That's one of Bork's quirks, he's a literalist. The intent of the wording was to limit the amendments to cover Americans. At the time it was written abortion was not on the writer's mind. It's one of those things they would assume by virtue of their contemporary familiarity with motherhood and babies. Had someone brought up the idea of abortion, they would have extended it, because the 14th was written to protect the rights of those formerly excluded.

[Torie]

Well there are other sections of the Constitution, and then of course we have state laws. I think the framers assumed the states would have statutes in their criminal codes regarding murder of illegals or unnaturalized residents. These days, if they didn't, the 5th amendment would be invoked in a hurry. Don't mess with Bork when he is speaking within his area of expertise. JMO.

[cpforlife.org]

Dear Remedy,

(LOL) Could you recommend a good speed reading system for me! Your reading assignments are all great, but LONG and I can't get away from the puter' when you post.

I'll throw in my two or three cents if time permits.

[MHGinTN]

Correction to sentence/syllogism:

It would be instructive to note how a court deals with these 'non-persons' when they land in court or are confronted by law enforcement personnel ... their personage is assumed! This flies in the face of abortion rulings when applied to disenfranchised the unborn since the absence of definition before the law is in no way applied to disenfranchise the non-person illegal immigrant. Becomes ... This flies in the face of abortion rulings when applied to the disenfranchised unborn since the absence of definition before the law is in no way applied to disenfranchise the non-person illegal immigrant.

[RobbyS]

Given that the common sense meaning of person is "human being," I agree that all the Court has to do is to include the unborn child under the meaning of person. He/she is thereby give the right of due process. This would not eliminiate abortion entirely but it would end the pro miscuous use of abortion as birth control. A simple hearing in which the woman would have to show cause why her child should be killed would achieve this purpose.

[MHGinTN]

Sadly, that is not historically how 'convention' is changed.

[RobbyS]

You are right that the unfettered right to an abortion has become a matter of "interest," for the same reasons that black slavery became increasingly so.

[hocndoc]

Someone should remind the justices that the life cycle of the human species is well known. Like all mammals, it begins at fertilization.

[jwalsh07]

I thought I pinged you here. Todays run must have sucked the oxygen out of my brain.

I am interested in your informed opinion on how much the Constitution should be allowed to breathe. It is something I'm having trouble getting my arms around.

[jwalsh07]

Marvin, I left you off my favorite poster list. Error of omission. I always read your stuff.

[Torie]

For a court to decide the fetuses are persons under the Constitution would be judicial activism in the extreme, totally without any precedent. Beyond the merits, Roe v Wade, and more so its progeny, did great damage to our jurisprudential and politial system, and going in the opposite direction would compound the problem. Abortion is an issue that must be decided in the public square, which I think would find an intelligent compromise that would at least reduce the level of toxic waste being poured into the public square to more manageable levels. Time has proved that this issue is ill suited in so many ways to judicial activism.