Statement 8 + Footnotes
From SaveTheWorld - a project of The Partnership Machine, Inc. (Sponsor: Family Music Center)
| Forum (Articles) | Offer | Partners | Rules | Tips | SaveTheWorld:FAQ | Begin! | Donate |
Statement of Facts #8 from:
Reversing_Landmark_Abomination_Cases
Saving Babies from judges & voters
Saving Souls from ‘Scrupulous Neutrality’ about Religion
by proving in courts of law and in the Court of Public Opinion that:
The right to live of a baby and of a judge are equal The Bible & reality-challenged religions are NOT equal
A strategy of Life that relies on the Author of Life
for pro-life, pro-Bible Lawmakers, Leaders, Lawyers, and Laymen
by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 10:29, 23 October 2023 (UTC)
Statement #8.
Statement #8: Roe, Dobbs, and the 14th Amendment agree: All Humans are “Persons”. [1]
DON’T READ past this 11 word Statement unless you like to stare at where crazy lawyers ever got the idea that human babies aren’t people!
Neither Roe nor Dobbs distinguished between “humans” and “persons” as if a “human” baby isn’t necessarily a “person”. [2] Nor does the 14th Amendment leave any human unprotected.
Roe v. Wade equated the time an unborn child becomes “recognizably human” with the time the child becomes a “person”: “These disciplines variously approached the question [“of when life begins”] in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’” 410 U.S. 113, 133(1973)
Dobbs cites the belief that “a human person comes into being at conception” without distinguishing between the two words. [3] The word “person” in the 14th Amendment meant “An individual human being...man, woman, or child...consisting of body and soul.” The word “child” in that 1828 definition included unborn children, since to be “with child” meant to be pregnant. [4]
Therefore the Amendment’s “nor shall any state deprive any person of life” and “equal protection” of every “person” means every human, including those unborn. Nothing about the first clause keeps later clauses from protecting unborn humans. [5]
See also Wong Wing v. United States, 163 U.S.228, 242 (1896), “The term ‘person’ is broad enough to include any and every human being within the jurisdiction of the republic...This has been decided so often that the point does not require argument.” Steinberg v. Brown 321 F. Supp. 741 (N.D. Ohio, 1970) “[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state a duty of safeguarding it”. [6]
The word “persons” in the 14th Amendment means all who are IN FACT humans. Had it been only for those who are legally recognized as human, every deprivation of fundamental rights would be “constitutional” so long as a law or ruling questions whether its victims are “persons in the whole sense”.
Although Dobbs showed by disproving the opposite that reverence for all human life from fertilization was “deeply rooted in America’s law and traditions”, that is not why rights merit 14th Amendment protection. By the “deeply rooted” test, slavery would be legal today, since freedom for slaves had zero historical support.
Nor does it matter if the Amendment authors even wanted to protect all humans. In fact, it doesn’t matter if there is a 14th Amendment. If law is not equal upon its operation on all humans, which is the very definition of the word “law” as developed by Samuel Rutherford’s “Lex Rex” and Blackstone and adopted by America’s founders, to that extent there is, by definition, no “rule of law”, no restraint upon the “strong” to not tyrannize the “weak”.
There is a direct test of whether babies merit 14th Amendment protection that does not require a romp through history: [7] see if their parents are humans.
“To say that the test of equal protection should be the ‘legal’ rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State [or its judges] to draw such ‘legal’ lines as it chooses.” Glona, 391 U.S. 73, 75 (1968) [8]
12/532 words
The footnotes below are enriched by selections from the Amicus Briefs filed in Dobbs v. Jackson by: Lee J. Strang <> Scholars of Jurisprudence John M. Finnis and Robert P. George <> Mary Kay Bacallao Advocating for Unborn Children <> Center for Medical Progress and David Daleide <> and by selections from the 1996 debate between Judge Robert Bork and Professor Nathan Schluetter
INDEX to all 12 Statements of Facts
Statement_1_+_Footnotes Courtrecognized, court-tested Finders of Facts unanimously establish that unborn babies are fully human
Statement_2_+_Footnotes Courts Accept the Fact-Finding Authority of Legislatures, Juries, Experts for the same good reasons their findings persuade the public.
Statement_3_+_Footnotes The FACT that Babies are Fully Human was never denied or ruled irrelevant by SCOTUS.
Statement_4_+_Footnotes Heartbeats & Brain Waves are Legally Recognized Evidence of Life.
Statement_5_+_Footnotes Legislatures should regulate abortion, as Dobbs held, just as legislatures regulate the prosecution of all other murders.
Statement_6_+_Footnotes The full humanity of a tiny physical body is hard for many to grasp. But what distinguishes us from animals isn’t physical, and has no known pre-conscious stage.
Statement_7_+_Footnotes Congress has Already Enacted a Personhood Law as Strong as a “Life Amendment”. The 14th Amendment already authorizes Congress to require all states to outlaw abortion.
Statement_8_+_Footnotes Roe, Dobbs, and the 14th Amendment agree: All Humans are “Persons”.
Statement_9_+_Footnotes SCOTUS never denied that state personhood laws are strong evidence in an abortion case.
Statement_10_+_Footnotes “Exceptions” do NOT Mitigate or Undermine Personhood Assertions.
Statement_11_+_Footnotes The 14th Amendment requires this state, as every state, to thoroughly outlaw abortion. Restrictions of abortions for the purpose of saving mothers cannot be reviewed by strict scrutiny,1 even though the safety of mothers is a fundamental right, because the safety of their babies is an equally fundamental right. Legislatures can best delineate the most life-saving balance of harms.
Statement_12_+_Footnotes Judicial Interference with Constitutional Obligations is Impeachable.
==
FOOTNOTES
- ↑ 1 More about “Roe, Dobbs, and the 14th Amendment agree: All Humans are ‘Persons’ ”
Although Roe defines “persons” as “recognizably human”, Roe encouraged the myth that not all humans are people by saying “...the [lawyer for the babies] conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define ‘person’ in so many words. ...the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.” 410 U.S. 113, 157 (1973)
Notice that this is not a positive statement that babies are not people; it alleges a lack of evidence that babies are people. Turning this into a positive statement is ruled out by at least three Roe statements: its “collapse” clause which acknowledges the possibility of that evidence being “established”, its “the judiciary...is in no position to speculate [about] when life begins” clause, and its “we would not have (legalized abortion if we knew baby humans are humans)” clause.
Roe’s whisper of a new legal distinction between “human” and “person” was loud enough for much hand-wringing in prolife literature, culminating in the founding of PersonhoodUSA (www.personhood.org) whose “Strategy” category begins with a legal thesis arguing for treating the two words as synonymous. (www.personhood. org/wp-content/uploads/2020/02/Lugosi-The-Constitutionality-of-Personhood.pdf)
The thesis observes:“Justice Stevens, [in Casey] in concurrence with the majority, correctly observed that there has never been a single dissent (let alone a majority opinion) by any Justice on the fundamental issue decided in Roe that the fetus was not a ‘person’ within the language and meaning of the Fourteenth Amendment.” Planned Parenthood v. CASEY, 505 U.S. 833, 913 (1992)
It is tragically true that not even the most conservative justices, not just as of 1992 but as of today, have mentioned the evidence that unborn humans are humans. But Justice Stevens overstated how bad Roe was. Here is his full quote from Casey, page 913, to which the PersonhoodUSA thesis presumably refers. Notice the difference between what Stevens says Roe said, and what Roe said. Remember the Roe quotes above which prove Roe made only tentative statements about unborn “personhood” that were subject to future findings of court-recognized fact finders. Remember also that this is Stevens’ opinion about Roe, and his is the only signature on this statement:The Court in Roe carefully considered, and rejected, the State’s argument “that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” 410 U.S., at 156 . After analyzing the usage of “person” in the Constitution, the Court concluded that that word “has application only postnatally.” Id., at 157.
See how Stevens takes this quote out of context? Which is: “the use of the word [as it is used in the Constitution] is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.” See the difference context makes? Stevens makes it sound like the word itself means “only born humans”. The Roe context says there is uncertainty, from its contexts in the Constitution, whether the word “person” was meant to protect the unborn.
The Steven’s quote continues:Commenting on the contingent property interests of the unborn that are generally represented by guardians ad litem, the Court noted: Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. Id., at 162. Accordingly, an abortion is not “the termination of life entitled to Fourteenth Amendment protection.” Id., at 159.
See again the overstatement, the taking out of context. The rest of the sentence: “we...would not have indulged in statutory interpretation favorable to abortion...if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.” This could be read as a positive statement that “abortion definitely doesn’t hurt anyone”, were it not for the Roe quotes saying they don’t know if abortion hurts anyone. Which requires the interpretation: “we wouldn’t have forced states to legalize abortion, had we been able to figure out that babies of ‘persons’ are ‘persons’.” Stevens continues:From this holding, there was no dissent, see id., at 173; indeed, no Member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a “person” does not have what is sometimes described as a “right to life.” This has been and, by the Court’s holding today, remains, a fundamental premise of our constitutional law governing reproductive autonomy.
But that isn’t what Roe said. Roe never said “the fetus is not a person”. Roe said mere lowly SCOTUS judges are “in no position to speculate”, in the absence of consensus among doctors and preachers.
The PersonhoodUSA thesis continues, summarizing a concurrence by Justice Blackmun, author of Roe, also writing in Casey:“Justice Blackmun made the same point in Casey, and added that even the Solicitor General in oral submissions before the Court did not question the constitutional non-personhood status of the unborn child.” (p. 932)
Here is Blackmun’s statement in Casey, which the PersonhoodUSA thesis summarizes. It repeats that same identical point about the “termination of life” clause:“No Member of this Court - nor for that matter, the Solicitor General, ... has ever questioned our holding in Roe that an abortion is not ‘the termination of life entitled to Fourteenth Amendment protection.’ 410 U.S., at 159 . Accordingly, a State’s interest in protecting fetal life is not grounded in the Constitution. Nor, consistent with our Establishment Clause, can it be a theological or sectarian interest. See Thornburgh v. American College of Obtetricians and Gynecologists, 476 U.S. 778, 747 , (1986) (STEVENS, J., concurring). It is, instead, a legitimate interest grounded in humanitarian or pragmatic concerns.”
Well, that is what Blackmun wrote, in Casey, but he overstates the harm he did in Roe. Fortunately for babies, his statement in Casey was not a majority opinion. Three others joined his statement, not a majority.
Roe did not “hold...that an abortion is not ‘the termination of life entitled to Fourteenth Amendment protection.’ ” Roe made no such positive statement. Let’s stare at the full quote again:Indeed, ...we...would not have indulged in statutory interpretation favorable to abortion...if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. This conclusion, however, does not of itself fully answer the contentions raised by Texas [that unborn babies are people]....
The first sentence could be read as a statement that “we established that what abortion kills is NOT entitled to 14th Amendment protection”, IF:
1. it weren’t for the next sentence that admits a lingering question about whether babies are people;
2. Roe’s “collapse” clause which acknowledges the possibility of that evidence being “established”; and
3. Roe’s “the judiciary...is in no position to speculate” about “when life begins” clause.
Aside from that, we need to keep on our worry list that unborn people are not humans. Or is it, unborn humans are not people?
It is hypocritical that Blackman censored any “theological...interest”, after authoring Roe in which his alleged lack of consensus among theologians as well as among doctors was his primary rationale for excusing judicial ignorance of “when life begins”.We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” Roe v. Wade, 410 U.S. 113, 159 (1973)
Even without those three reasons, Roe’s statement, here for the third time, just isn’t a positive statement that SCOTUS knows babies are not people:“Indeed,...we would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.” – Roe v. Wade at 159.
- ↑ More about “Neither Dobbs nor Roe distinguished between ‘humans’ and ‘persons’ as if a ‘human’ baby isn’t necessarily a ‘person’ ”
Professor Nathan Schluetter, in his First Things debate with Judge Bork:“The word ‘person’...has been given a very liberal construction by the Supreme Court to include all human beings, be they minors, prisoners, aliens, enemies of the state, and even corporations. Indeed, apart from Roe, the Court has never once differentiated between ‘person’ and ‘human being,’ nor has it ever excluded a human being from the due process protections of the Fourteenth Amendment.” [And even in Roe, part of Roe’s definition of “person” was “recognizably human”.]
“So it is a fair legal inference to say that if it can be demonstrated that an unborn child is a human being, then that child will constitute a ‘person’ for Fourteenth Amendment purposes.”
- ↑ More about “Dobbs cites the belief that ‘a human person comes into being at conception’ without distinguishing between the two words.”
Unfortunately many prolifers have thought Roe created a distinction which Roe did not. The myth – that proving babies are humans falls short of proving they are “persons” – makes prolifers fail to appreciate how overwhelming the consensus is of court-recognized finders of facts, that all unborn babies “at all stages of gestation” have 14th Amendment protection. The false impression that that isn’t enough evidence yet to topple legal abortion keeps many prolifers from supporting legislation that would challenge legal abortion with the overwhelming evidence we already have until we can pass more “personhood laws” and/or add “babies are persons” to the U.S. Constitution.
The assumption that Roe ruled that not all humans count as “persons” protected by the 14th Amendment leads prolifers to think the consensus of fact finders that babies are humans doesn’t count as enough evidence to trigger Roe’s “collapse” clause. But the quibble of Roe was not whether babies are “persons” or merely “humans”, but whether very young babies are “recognizably human”. Roe’s doubts were fed by, according to one of Roe’s footnotes, depictions of human embryos that were indistinguishable from pig fetuses. Those fraudulent illustrations were in Dorland’s Illustrated Medical Dictionary.
To see those illustrations, where they are cited in Roe, and to read some of the controversy about their fraudulent origins that was known when they were first published a century ago, see Appendix I, 166, of my book, How States can Outlaw Abortion in a Way that Survives Court, posted as a free PDF at www.Saltshaker.us or as a paperback on Amazon.
Perhaps correction of this misunderstanding is less needed now that Dobbs has “repealed” Roe, the source of that supposed separation of “persons” and “humans”. But confusion from another source perpetuates the myth: the rationale that clause 1 of the 14th Amendment, being about people who have been born, forces the subsequent clauses to also protect only humans who have been born. This rationale is addressed by four Amicus Briefs filed in Dobbs and by two legal scholars, whose quotes fill footnote #4, 5 and 8 of this Statement.
Every myth left unclarified will provide another temptation for judges to gaslight voters. - ↑ More about “The word ‘child’ in the 1828 definition included unborn children”
Judges look everywhere but in a dictionary to learn what Americans who ratified the 14th Amendment understood the word “person” to mean. In 1868, Webster’s dictionary, published in 1828, was the only American dictionary. What it said words meant still guided the word choices of leaders in 1868.https://webstersdictionary1828.com. “People: 1. The body of persons who compose a community, town, city or nation. We say, the people of a town; the people of London or Paris; the English people In this sense, the word is not used in the plural, but it comprehends all classes of inhabitants, considered as a collective body, or any portion of the inhabitants of a city or country.
“Person: 1. An individual human being consisting of body and soul. We apply the word to living beings only, possessed of a rational nature; the body when dead is not called a person. It is applied alike to a man, woman or child. A person is a thinking intelligent being.
“Child: 1. A son or a daughter; a male or female descendant, in the first degree; the immediate progeny of parents; applied to the human race, and chiefly to a person when young. The term is applied to infants from their birth...To be with child [means] to be pregnant. Genesis 16:11, Gen 29:36.”
Blackstone was a widely consulted source of understanding of legal terms. An amicus brief filed in Dobbs v. Jackson by Scholars of Jurisprudence John M. Finnis and Robert P. George says:When House Judiciary Committee Chairman James F. Wilson introduced the Civil Rights Act of 1866, he... was quoting Blackstone’s Commentaries’ first Book, ‘Of the Rights of Persons,’ and its first Chapter, ‘Of the Absolute Rights of Individuals.’...Blackstone’s analysis, presented as uncontroverted and familiar to Wilson’s listeners in Congress, begins with the “right of personal security”—“a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health ....” And Blackstone’s unfolding of this right of persons opens immediately after Wilson’s quotation with two paragraphs about the rights of the unborn:
“1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb....”
Then comes Blackstone’s second paragraph on unborn children’s rights: “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.”
State high courts in the years before 1868 declared that the unborn human being throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” Hall v. Hancock, 32 Mass. (15 Pick.) 255, 257-58 (1834). ...which cited many English cases.
The unborn is “a child, as much as if born” and “is a person in rerum naturâ.” (Black’s Law Dictionary, 11th ed. 2019 defines the phrase as “In the nature of things; in the realm of actuality; in existence.”) [That is, “in fact”.]
Among the legally informed public of the time, the meaning of “any person”—in a provision constitutionalizing the equal basic rights of persons—plainly encompassed unborn human beings.
Blackstone’s definition is also relevant to the understanding Americans in 1868 had of “persons”, because they were “a legally educated public brought up on the [Blackstone] Commentaries”, in the words of the Amicus Brief filed in Dobbs v. Jackson by Scholars of Jurisprudence John M. Finnis and Robert P. George. (www.supremecourt.gov/DocketPDF/19/19-1392/185196/20210729093557582_ 210169a%20Amicus%20Brief%20for%20efiling%207%2029%2021.pdf)
Statement #6, Footnote #2, quotes more dictionaries to focus on what distinguishes humans from animals. Roe in 1967, and Webster in 1828, defined humans as having souls. That fact is written out of most but not all modern dictionaries. - ↑ More about “Nothing about the first clause keeps later clauses from protecting unborn humans.”
The “equal protection” clause was created to give equal rights to the people least valued by society, beginning with slaves, but not ending with slaves.
(The full text of Amendment 14, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
This footnote begins with a simple statement by Professor Nathan Schlueter that all people are “persons”.
Next is explained how Roe stumbled over grammar to question whether all people are “persons”. (From the amicus in Dobbs by Mary Kay Bacallao Advocating for Unborn Children.)
Finally is the longest explanation, from the amicus of Lee J. Strang, of how “originalists” (who study what the Constitution originally meant) debate whether the 14th Amendment gave “persons” the “natural” dictionary definition or a legalistic courtroom definition that excluded unborn people.
Professor Nathan Schlueter:Indeed, apart from Roe , the Court has never once differentiated between “person” and “human being,” nor has it ever excluded a human being from the due process protections of the Fourteenth Amendment. So it is a fair legal inference to say that if it can be demonstrated that an unborn child is a human being, then that child will constitute a “person” for Fourteenth Amendment purposes....
President Lincoln warned in “his First Inaugural Address against deferring decisions of policy ‘upon vital questions affecting the whole people’ to the Supreme Court, and thus resigning the power of self-government.
“Of course, Lincoln was referring to the ignominious Dred Scott decision in which the Court ruled not only that blacks were ineligible for national citizenship and thus had no legal access to federal courts, but also that slaves constituted property protected by the Fifth Amendment due process clause against congressional prohibition of slavery in the territories. It was in part in order to overturn this ruling that Lincoln pressed for, Congress passed, and the nation ratified the Thirteenth and Fourteenth Amendments to the Constitution extending due process and equal protection rights to all persons under United States jurisdiction.
“The simple syllogism for my argument can be stated as follows. The word ‘person’ in the due process and equal protection clauses of the Fourteenth Amendment includes all human beings. Unborn children are human beings.”
Unfortunately even many prolife lawyers accept Roe’s Principle from Hell that fundamental rights are only those “deeply rooted in America’s laws and traditions”, so if Roe was correct that the unborn had never been treated by law as fully human, we should not treat them as fully human today. By that absurd logic, slaves should never have been freed, since slaves had never been treated by southern law as fully human.
Dobbs refuted Roe’s history, showing that abortion was never “deeply rooted in America’s laws and traditions”, but was always criminalized to the full extent of human law and understanding. Dobbs didn’t mention the obvious converse, that therefore, reverence for unborn human life from its beginnings was “deeply rooted in America’s laws and traditions”. That observation would have required the same pressure on all states to outlaw abortion as Roe had placed on states to legalize the killing.
Mary Kay Bacallao Advocating for Unborn Children:
An elementary grammar error is a major excuse for the slaughter of 70 million souls, as pointed out by an amicus brief filed in Dobbs v. Jackson by Mary Kay Bacallao Advocating for Unborn Children. (http://www.supremecourt.gov/DocketPDF/19/19-1392/185109/20210728 121621904_19-1392 Brief Amicus Curiae.pdf)It is time to extend to unborn children the equal protection and due process rights they enjoyed in Mississippi until the Roe Court made an elementary grammar error, using a phrase that conferred citizenship in one clause to define personhood for other clauses. It is time to correct the Roe Court’s error in refusing to determine when life began and in the same stroke of the pen stripping the unborn of their personhood, citing the very amendment that codified the right of all persons, born and unborn, to equal protection and due process.
THE ROE COURT MISINTERPRETED THE MEANING OF THE WORD “PERSON” AS FOUND IN THE FOURTEENTH AMENDMENT. The Fourteenth Amendment to the U.S. Constitution includes the following three references to persons:
[1.] “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
[2.] “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;”
[3.] “nor deny to any person within its jurisdiction the equal protection of the laws.”
Here, in looking at statutory construction cannons such as noscitur a sociis, which means, “it is known by its companions,” the meaning of the word “persons” can only be ascertained by its associates. In the first instance, “persons” is being modified by “born or naturalized in the United States, and subject to the jurisdiction thereof…” Here, “persons” is a general term that is being limited at least by two conditions, either “born” or “naturalized.” In this instance, the Fourteenth Amendment limits the type of persons who can be citizens to those either born or naturalized in the United States and subject to the jurisdiction thereof.
In the second instance, no “person” shall be deprived of life, liberty, or property, without due process of law, where “person” is used generally, unmodified by “born” or “naturalized, etc.” Here “citizens” as defined in the first instance is separate and distinct from “person” found in the second part of the sentence. The second use of “person” is unmodified. These persons are not necessarily citizens, nor does it follow that they must necessarily be “born.”
[By the way, courts and laws today apply this protection to noncitizens – not even “illegals” (undocumented immigrants) can be legally murdered.]In the third instance, “any person” is also unmodified by either “born” or “naturalized, etc.” In other words, “person” is not limited to a person “born” or “naturalized in the United States,” rather, the term “person” is again unmodified and used in the general sense. Thus, where the second use of the term “person” prohibits a State from depriving a person of life, liberty, or property, without due process of law, “person” is used generally rather than in the context of being “born.” Additionally, where the third use of the term “person” does not allow a State to deny to any person within its jurisdiction the equal protection of the laws, again, “person” is unmodified. This does not limit protection to “persons born or naturalized in the United States…”
To assert that one word, such as “born,” that is used in a single line to limit a general term, such as “person,” in one provision also limits that same general term, in this case “person,” each time it occurs is linguistically incorrect. It is the same as saying that because one line refers to a black cat, all other times the word cat appears it can only refer to cats that are black. This is not the way language works.
There is no evidence that the original meaning of person was limited to those who were born. Rather, the corpus evidence found in COHA, the Hansard Corpus, and the Corpus of U.S. Supreme Opinions point to the unborn as persons, legally able to inherit property and in need of protection.
The Roe court did not resolve the question of when life begins, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” However, the Roe Court maintained that “… the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Roe Court used faulty linguistics in determining that someone unborn was not a ‘person’ as used in second and third [clauses of Section One] of the Fourteenth Amendment. In the first use of person, ‘born’ modifies or limits the meaning of ‘person,’ not the other way around. The Roe Court did not use proper linguistic interpretation of the text of the Fourteenth Amendment when limiting its interpretation of the second and third references to persons as those who were born.
The second reference to person in the Fourteenth Amendment, stating that a State may not deprive any person of life, liberty, or property, without due process of law applies to persons both born and unborn. The third reference to person in the Fourteenth Amendment, where a State may not deny to any person within its jurisdiction the equal protection of the laws also applies to persons both born and unborn. Simple linguistics, applied to these provisions in the U.S. Constitution, where the word person is unmodified by the word “born” confirms that a person is a person no matter how small.
The 14th Amendment: “...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws....”
Lee J. Strang, in the Amicus Brief he filed in Dobbs v. Jackson, explains how the correct meaning of “person” in the 14th Amendment is the “natural” one. That is, the meaning that all of us non-lawyers attach to the word. A human being.
A baby.
Plural: people.
The normal meaning.
The dictionary definition.
He explains how Justice Blackmun, author of Roe v. Wade, was wrong to assume a legalistic meaning that doesn’t necessarily include unborn people. He explains not just that Blackmun was wrong, but how he got so wrong.
And not just Blackmun, but even Justice Scalia, the hero of conservatives.
Even Judge Bork – see footnote #8 – fought for the interpretation which Strang refutes.
You ask, “What other definition matters, but this ‘natural’ meaning?”
If you have to ask, you are obviously not a lawyer.
Lawyers understand that when Roe v. Wade said “if Texas’ suggestion of personhood is ever established”, Roe didn’t mean, established by evidence of the fact that babies of humans are humans by modern medicine or by court-recognized fact-finders. No, Roe meant “established” by evidence of what the word “persons” meant to the authors of the 14th Amendment. Did they mean what dictionaries mean, the way we “naturally” (normally) define “people”? Or did they make the word “persons” into a technical legal term for lawyers to load with their own special courtroom meanings?
According to this thinking, whether we adopt the “natural” meaning, which counts unborn babies as people, or the legalistic meaning which only counts born people as people, should depend on which meaning was adopted by lawyers and legislatures when the 14th Amendment was ratified.
The fact that some states – including the states that ratified the 14th Amendment – didn’t outlaw abortion from conception until several years after they ratified the Amendment is taken by the legalistic interpretation to prove “person” meant, to them, only those whom voters choose to treat as human.
(Had that approach occurred to Southern voters, they would have voted slavery back in!)
Lee Strang points out logical inconsistencies with this approach, and shows how the “natural” meaning of “persons”, among states back then, better fits the historical record. He says the delay of states in outlawing abortion from conception is accounted for by the delay of the medical profession in understanding early pregnancy, and in explaining its discoveries to the general public.
My own argument in this book assumes what Strang calls the “natural” meaning of “person”. I point out that any meaning but “all humans” leaves the Amendment with zero effect. If voters can decide not to include a whole class of people as “persons”, voters in the South would have restored slavery. This “legalistic” interpretation would lead to that “absurd result”, a sensible courtroom reason to reject an idiotic interpretation.
I also point out that Roe treated “if Texas’ suggestion of personhood [in the 14th Amendment] is ever established” as a fact inquiry, since Roe later said if doctors and preachers can’t agree, “the judiciary, at this point in the development of man’s knowledge, is unable to speculate” about “when life begins”. By elevating doctors and preachers above themselves as experts on the meaning of “when life begins”, and by anticipating the possibility of later correction by “the development of man’s knowledge”, Roe rejected treating “when life begins” “as a matter of law” or of special technical courtroom applications, and treated the question as a fact question.
(Although Roe treated the question as a technical legalistic inquiry by exploring how past legislatures treated abortion, Roe treated it as a fact question by deferring to the superior expertise of doctors and preachers.)
In case you are screaming “stop talking about Roe! It’s been overturned!” I must remind you that Roe’s ignorance-necessitated neutrality about “when life begins” is elevated to “scrupulous neutrality” in Dobbs. At least Roe acknowledged the existence of the question and said it mattered; in fact, that it is dispositive.
Strang’s study is hardly irrelevant with the passage of Dobbs. We need it now more than ever. We need voters to realize, if they think they can vote on who gets to be counted as human, that the very right to vote is the least of the rights they will lose!
Strang’s study is valuable for its ability to reach well meaning legal scholars struggling to honor the Constitution by establishing its “original meaning” but who are confused about what “original meaning” means.
With that summary, we now go to Strang’s study:QUESTION PRESENTED Whether the original meaning of “person” in the Due Process and Equal Protection Clauses of the Fourteenth Amendment includes unborn human beings
My view has long been that the strongest originalist reason that supported Justice Blackmun’s conclusion that unborn human beings are not constitutional persons was the historical evidence that some states in 1868 allowed abortion in some instances, because that would mean that state law authorized actions fundamentally inconsistent with the full constitutional personhood of unborn human beings at the same time the [very same] states adopted the Fourteenth Amendment.
Indeed, this reason was cited by Justice Scalia to support his view that all abortion decisions remained with the states. “[S]ome states prohibited [abortion], some states didn’t . . . . It was one of those many things . . . left to democratic choice.”.... See, e.g., Bork, supra (“It is impossible to suppose that the states ratified an Amendment they understood to outlaw all abortions but simultaneously left in place their laws permitting some abortions.”).
Below I describe an alternative view of this historical evidence...the progressive changes in abortion law toward fully protecting unborn human beings were in response to new medical information that caused lawmakers to continually re-align state law to better fit with their (explicit and implicit) natural kind original meaning of “person.” ….This account also explains how abortion law in 1868, which limited but did not eliminate abortion, fits the natural kind meaning of “person” because lawmakers’ knowledge of the status of unborn human beings had not yet informed (all of) them that unborn humans are, in fact, human from conception.
Strang gives a history of “originalism”, which means “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written...the constitution does not ‘evolve’. ”
[The rest of this footnote is quotes from Strang’s Amicus, although I am not indenting it.] ...Strang says “Originalism in its modern theoretical form first appeared in the early 1970s. At this stage, originalism unselfconsciously focused on the intended meaning and goals of the Constitution’s framers....Many jurists and scholars criticized this early version of originalism. Three criticisms relevant to my argument, which many originalists took on board, include the claims that the framers intent is not the law, [Anton Scalia]..., there was not a single intended framer meaning, [Ronald Dworkin...], and that it was impractical for the legal system to try to uncover intended framer meaning (even if it, in theory, existed). [Paul Brest]....
In response, most originalist scholars re-articulated originalism as public meaning originalism. [What the provisions of the Constitution meant to the public] Public meaning was a real fact of the world….and the evidence for it was relatively widely available. ...
One [way to interpret words] is general public meaning and another is legal meaning. General public meaning is the meaning of the Constitution’s text that is widely available to and utilized by Americans at the time of ratification. ….
Legal meaning...arises out of legal practice. Lawyers and legal practice are a linguistic subcommunity, and words and phrases have particular meanings and nuances of meaning within legal practice....
….By contrast with the fundamentally conventional general and legal public meanings just discussed, natural kind meaning corresponds to natural reality, independent of human convention. It is the view that linguistic meaning is attached to something factually true. [In other words, the application of the word “person” to babies changes only as we better understand babies.]
B. The original meaning of “person” in the Due Process and Equal Protection Clauses was the natural kind of human being.
….both the status quo of abortion law in 1868 and continual changes to that law support the natural kind interpretation. ….
The Constitution’s text suggests that “person” was the natural kind of human being. [The Constitution used the word “person” as normal people normally define the word.] The text of the Fourteenth Amendment describes a being who [1] can be a citizen, who [2] can have his or her life deprived by the government, and who [3] can be harmed by private violence. U.S. CONST., amend. XIV, § 1. Two of these characteristics occur to human beings both pre- and postnatally; but the important point is that all of these are characteristics of human beings, and unborn human beings are the kind of beings who possess the capacities for those characteristics and will possess the actual characteristics themselves at some point in their lives (assuming normal development).
The intended meaning of framers and ratifiers of constitutional text is also evidence of the Constitution’s original meaning. This is especially true when the framers and ratifiers publicly state their intentions so that they become aspects of the publicly available context. As many scholars have noted, there is no direct legislative history of the Fourteenth Amendment’s drafters and ratifiers discussing the Amendment’s relationship with abortion. ...However, [they made] numerous statements that the Amendment protects all human beings, regardless of their characteristics, and this supports the natural kind original meaning of “person.”
For example, Senate Judiciary Committee chairman, Lyman Trumbull, spoke to the Senate about the Thirteenth Amendment and legislation for the Freedmen’s Bureau that he planned to introduce, and tied the Constitution’s protection to all human beings: “any legislation or any public sentiment which deprives any human being in the land of those great rights of liberty will be in defiance of the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 77 (Dec. 19, 1865) (Lymann Trumbull).
Similarly, a leading Senate sponsor of the Fourteenth Amendment, Jacob Howard, explained the broad scope of the Equal Protection Clause: “It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the [human] race the same rights and the same protection.” Cong. Globe, 39th Cong., 1st Sess. 2766 (May 23, 1866) (Jacob Howard).
The “Father” of the Fourteenth Amendment, Representative John Bingham of Ohio, stated in 1867 to the House regarding the word “person” in the Fifth Amendment (whose text he copied for the Fourteenth Amendment’s Due Process Clause), that “[b]y that great law of ours it is not to be inquired whether a man is ‘free’ . . . ; it is only to be inquired is he a man, and therefore free by the law of that creative energy which breathed into his nostrils the breath of life, and he became a living soul, endowed with the rights of life and liberty.” Cong. Globe, 40th Cong., 1st Sess. 541 (July 9, 1867) (John Bingham).
Like Trumbull and Howard, Bingham equated “person” with “human being.” It is worth noting before proceeding that there is no evidence from the framing and ratification process limiting “person” to born human beings.
Dictionaries of the time period defined person as the natural kind of human being. For instance, Noah Webster’s American Dictionary of the English Language (1864), defined person as “a living human being; a man, woman, or child; an individual of the human race.” 1 NOAH WEBSTER ET AL., AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 974 (1864).
...the strongest argument [against] unborn personhood was the history of abortion regulation, and in particular the fact that some states permitted abortion in some contexts in 1868. [But] Scholars today agree that abortion law changed over time from a position of less-protective to moreprotective of unborn human beings.... the basic pattern is widely recognized....
The common law viewed unborn human beings as human beings and treated abortion upon quickening as a misdemeanor. Sir William Blackstone stated that “[l]ife is an immediate gift of God, a right inherent by nature in every individual and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb.” 1 SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *126 (1776); see also 1 id. *119 (“Natural persons are such as the God of nature formed us.”). Blackstone’s description of unborn humans is as fully human. Blackstone explained that “[t]o kill a child in its mother’s womb, is now no murder, but a great misprison [a serious misdemeanor]: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it is murder.” 4 Id. *198. It is widely agreed by scholars that this protection after quickening in some instances, and after birth in others, was the product of evidentiary concerns over whether a woman was indeed pregnant and the unborn victim was indeed alive at the time of the crime.
…. Crucial to [proving that] the natural kind meaning of “person” [is its meaning in the 14th Amendment,] state lawmakers progressively restricted abortion because new medical knowledge enabled them with greater clarity to see that unborn human beings were indeed human beings and extended the law’s protection to them. DELLAPENNA, supra at 313. As summarized 19 by the leading historian, Professor Joseph Dellapenna, this period saw “dramatic changes in scientific theories about the nature of conception and the emergence of a new consensus on when a distinct human being began that were built upon the scientific discoveries of the early nineteenth century.” Id. at 282. contemplation of the law as soon as an infant is able to stir in the mother’s womb.” 1 SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *126 (1776); see also 1 id. *119 (“Natural persons are such as the God of nature formed us.”)....
By 1868, ...Thirty of the thirty-seven states in the Union had enacted statutes that restricted abortion. Witherspoon, supra at 33. Of these thirty, twenty-seven state statutes restricted abortion prior to the common law line of quickening. ...
Evidence of this can be seen from many sources. State law itself reflected this understanding because twenty-eight of the thirty jurisdictions that statutorily restricted abortion placed their restrictions under the label “offenses against the person,” and twenty-three states labeled unborn human beings “children”. Witherspoon, supra at 48. States imposed significant punishments for abortion, reflecting the humanity of unborn human beings. Id. at 52-54. State judiciaries similarly modified the common law to expand protection for unborn humans, for instance, by moving earlier than the common law quickening line. Craddock, supra at 555.
The legal system’s shift was supported by and in response to information provided to lawmakers from the medical profession. DELLAPENNA, supra at 298. One of the most influential books on medical ethics leading up to this period, THOMAS PERCIVAL, MEDICAL ETHICS 135-36 (1827), by a noted English physician, stated that “to extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man.”
Percival treated abortion as ethically indistinguishable from killing born human beings because all human beings are the same type of being. Percival’s view was influential in the United States and was adopted by the American Medical Association, which stated in 1859 that unborn human beings should be protected because of the “independent and actual existence of the child before birth, as a living being.” The Report on Criminal Abortion, 12 TRANS. OF THE AM. MED. ASS’N 76 (1859).
The Report went on to advocate state legislative reform to better protect unborn human beings. Id. While the states were considering ratification of the Fourteenth Amendment, New York’s influential Medical Society stated that all abortions are “murder.” Byrne, supra at 836.
Legislators changed both the common law and their own earlier statutes in response to this better information about the nature of unborn human beings. As legislators learned that quickening and other lines were irrelevant to the development of human beings, they discarded them and legislated greater protection.
This is exactly what Ohio did. See Witherspoon, supra at 61-64 (describing this process). The Ohio legislature modified Ohio’s 1834 abortion law in early 1867. The Ohio Senate Report relied on the fact that “[p]hysicians have now arrived at a unanimous opinion that the foetus in utero is alive from the very moment of conception.” 1867 Ohio S.J. App. 233. Informed by the new medical information, including Dr. Percival’s statements, the Report condemned the “class of quacks who make child-murder a trade.” Id. The legislature therefore changed the law and eliminated the quickening line to take better account of these newly known facts. “[N]o opinion could be more erroneous [than] that the life of the foetus commences only with quickening [and] to destroy the embryo before that period is not child-murder.” Id.
“[T]he legislative histories of the statutes of other states show that these statutes were often enacted pursuant to a request of state medical societies.” Witherspoon, supra at 65. For example, New York’s General Assembly, following the recommendation of its medical society that, “from the first moment of conception, there is a living creature in process of development to full maturity,” modified its 1845 abortion law to prohibit abortion throughout pregnancy. DELLAPENNA, supra at 323-28
C. The natural kind original meaning of “person” in the Due Process and Equal Protection Clauses included unborn human beings
Still, ...by 1868, ...some state legislation was not fully protective of unborn human beings. Id. at 316-17. As I noted earlier, this is the most powerful originalist argument against the constitutional personhood of unborn human beings. ...under the conventional legal meaning approach, [the approach in Dobbs that protectable rights are “those rooted in our nation’s history”] that would be evidence that the original meaning of “person” did not include unborn human beings, or at least not all of them. [Because] if unborn human beings were constitutional persons in 1868, then many of the states that ratified the Fourteenth Amendment were violating the Amendment they adopted. So argued Blackmun, Scalia, Bork, and many others.
[But] the reasons these states gave for changing their laws are precisely the reasons a rational legislator would give if the meaning of “person” was a natural kind [and in response to growing medical understanding of babies from conception].
[Roe v. Wade claimed that] the Constitution’s use of “person” showed that it was limited to born human beings. Roe, 410 U.S. at 157. ...But...it does not logically follow from the multiple born uses of “person” that the uses of “person” in the Due Process and Equal Protection Clauses are similarly limited....[Roe says] “in nearly all these instances, the use of the word [in the Constitution] is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”
...He admits that in some instances... “person” may apply to unborn human beings. Those instances clearly include the Due Process and Equal Protection Clauses because there is nothing in their text to prohibit such application, unlike, for instance, the Citizenship Clause. Those instances also likely include Article I, Section 9, Clause 1 (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit . . . .”), Article IV, Section 2, Clause 3 (“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another . . . .”), and the Fourth Amendment (“The right of the people to be secure in their persons . . . .”).
Many of the instances of solely post-natal application are so only because their context and function limit them. For instance, the presidency is limited to “No Person except a natural born Citizen.” U.S. CONST., art. II, § 1, cl. 5. The Due Process and Equal Protection Clauses lack such limiting text or function; the Clauses are not limited to born persons or even natural persons. Moreover, the fact that “person” in the Due Process and Equal Protection Clauses is not limited to some classes of humans, such as “born” or “natural persons” or “such persons,” suggests that it includes all persons. See Gorby, supra (providing a variety of critiques of Justice Blackmun’s intratextualism).
[In other words “person” doesn’t mean ALL born persons, any more than it means all UNborn persons; the context tells us which persons are meant. In the “citizenship clause”, the first clause of the 14th Amendment, we know only born babies can be citizens because the Clause explicitly says so. The remaining clauses do not say so, nor does reason or common sense require that limit, so when the Amendment says “no person shall be deprived of life without due process of law”, we have no ground for making it mean something else. No one did then; no one should now.]
CONCLUSION: the original meaning of “person” in the Due Process and Equal Protection Clauses was the natural kind [definition] of human being. This natural kind interpretation of “person” was able to account for the status quo of American abortion law in 1868 as well as the fact that abortion law was progressively becoming more protective of all human life. - ↑ More about “[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state a duty of safeguarding it”
The holdings of Wong Wing and Steinberg v. Brown are not only “precedent” for interpreting the word “person” today, but are authoritative evidence that such was the interpretation of the word when the word was written in the 14th Amendment. Especially the Wong Wing ruling of 1896, which was closer to 1868 when the Amendment was ratified.“Even prior to the ratification of the Fourteenth Amendment, this Court acknowledged that the word ‘person’ in law was a term designed to include all of humanity. In United States v. Palmer, 16 U.S. 610 (1818), Chief Justice Marshall explained that ‘every human being’ and ‘the whole human race’ was included in the words ‘person or persons’ in federal law. Id. at 631–32.
“And in Levy v. Louisiana, 391 U.S. 68 (1968), this Court articulated a simple test for ensuring equal protection for marginalized persons, reasoning that so-called ‘illegitimate’ children were not ‘non-persons’ as they were ‘humans, live, and have their being,’ and therefore, ‘clearly “persons” within the meaning of the Equal Protection Clause of the Fourteenth Amendment.’”. (From the amicus brief of Center for Medical Progress and David Daleide filed in Dobbs v. Jackson. www.supremecourt.gov/DocketPDF/19/19-1392/185155/20210728 163153060_Amici Brief of CMP-Daleiden.pdf) - ↑ 7 More about “By the ‘deeply rooted’ test, slavery would have restarted, since freedom for slaves had zero historical support.”
Slavery had existed in every country from the beginning of recorded history. Nor had the Constitution required the end of slavery.
The fact that the end of slavery did not require prior centuries free of slavery proves that the end of darkness does not require that it be already ended but only that a Light be held high.
The fact that abortion is far more deadly than slavery proves babies, as much if not more than blacks, were the intended beneficiaries of the healing Light of the 14th Amendment and the Scriptures it summarizes.
That Light from Heaven made irrelevant the length of time darkness hung over America. Murder does not acquire legal status in proportion to how many centuries it has reigned. - ↑ 8 More about “To say that the test of equal protection should be the ‘legal’ rather than the biological relationship is to avoid the issue.” Judge Robert Bork disagreed: “The constitutional question is not what biological science tells us today about when human life begins.” They are talking about the 14th Amendment which says “...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Judge Bork was the famous “originalist” nominated to the Supreme Court by President Reagan in 1987 but crucified by the Democrat-controlled Senate to the degree that his name was added to dictionaries. (https://www.merriam-webster.com/dictionary/bork transitive verb - US politics, informal: to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification. “In any event, seeing one of their own being borked may itself energize the conservative base, even beyond what a conservative nomination would do.” — Mark Tushnet. “In 1987, conservative judge Robert Bork endured such virulent criticism … that to this day, a nominee sidelined by activists is said to have been ‘borked.’ ”— Claire Suddath ) The issue: does an unborn baby count as a “person” in the 14th Amendment? The 1970 ruling said yes. The three authorities quoted in footnote #5 say yes. Judge Bork said no. Bork, in 1996, not only insisted the 1970 Supreme Court had it exactly backwards, but said its “argument will never be more than a curiosity” when Professor Nathan Schlueter made what I think was the same argument. (See their debate at www.firstthings.com/article/2003/01/ constitutional-persons-an-exchange-on-abortion ) Footnote #5 gave reasons why the plain meaning of the 14th Amendment applies its “no state shall deprive any person of life” to unborn babies, just as any non-lawyer would assume from reading it the first time. But that footnote doesn’t explain how any smart person could read it any other way. This footnote #8 remedies that omission with Bork quotes. This excerpt is from Bork’s published debate in First Things (November, 1996) with Professor Nathan Schlueter, who is currently a professor at Hillsdale College. My own comments are interleaved. This excerpt begins with Bork’s quote that begins this footnote: The constitutional question is not what biological science tells us today about when human life begins. No doubt conception is the moment. The issue, instead, is what the proponents and ratifiers of the Fifth and Fourteenth Amendments understood themselves to be doing.... Huh? “Life begins at conception” but that doesn’t matter? Stay with me on this. Help keep me awake. When the two Amendments [5 & 14] were proposed and ratified, abortion was known, had been known for millennia, and there had been arguments about whether life began at quickening or some other stage prior to birth. No one concerned in the adoption of these Amendments could have been ignorant of the fact that life did or could exist at some time prior to birth. Thus, if they intended to protect all human life, they would have known that the Amendments did, or very probably would, prohibit some category of abortions. It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born. COMMENT: This is an “argument from silence”. Because Bork finds no discussion of unborn babies in recorded debates about the 5th and 14th Amendments, he assumes people then wanted moms to be free to murder their babies! I would think any silence on the question was because it never occurred to anyone back then that anyone would say “we know these babies are human beings from conception, but a mother should still have a right to kill them.” Had a time traveler from today told those senators about Roe v Wade, and the need to clarify that unborn babies are “persons”, they would have answered, “you are telling us our great great great grandchildren will flock to pay baby killers to murder their very own babies if we don’t spell out that babies of people are people, which any idiot already knows? But should our descendants actually become that bloodthirsty, you really think a word in the Constitution will stop them? Bosh!” [People in 1868 said “Bosh!” a lot.] Then they will throw the time traveler out of the room. Indeed, the language of the Amendments strongly supports that understanding. The Fifth Amendment states that no “person” shall be held to answer for a capital or otherwise infamous crime except on presentment or indictment of a grand jury. Moreover, no “person” shall suffer double jeopardy for the same crime or be compelled to be a witness against himself. These all quite clearly apply only to persons who have been born since it is difficult to imagine an unborn child being charged with an infamous crime, or being tried twice for the same crime, or being required to be a witness against himself. COMMENT: Bork repeats reasoning from Roe. But by this reasoning, no child under 10 is a “person” either! Which was a point made by Schlueter, by the way Schlueter...asserts that abortion was universally condemned by Christendom, a crime at common law, and a felony in the vast majority of states in the latter half of the nineteenth century….If all those assertions were true, that would say nothing about what the ratifiers of the Fifth and Fourteenth Amendments meant. Armed robbery was even more universally condemned, certainly condemned by Christendom, a crime at common law, and a felony in every state. That does not mean that the Amendments in question outlawed armed robbery. I think the reason Bork’s logic is getting tangled up is that he has been talking about the “due process” clauses in the 5th and 14th Amendments, which say government can’t take life “without due process of law”. That has nothing directly to do with moms and baby killers taking lives without any restraint from law. It is the equal protection clause of the 14th Amendment that says states must equally “protect” babies, by making it a crime to murder them. But that equal protection doesn’t kick in when states are doing fine. It kicks in when state laws allow, require, or even subsidize violation of human rights. If a state outlawed armed robbery except for robbing Jews, for example, then the Amendment would kick in to vacate that exception. ...Schlueter quotes then-Justice William Rehnquist’s dissent in Roe...: “By the time of the adoption of the Fourteenth Amendment in 1868, there were at least thirty-six laws enacted by state or territorial legislatures limiting abortion.” ….To limit conduct is to prohibit only some aspects of it while allowing the rest. It is impossible to suppose that the states ratified an Amendment they understood to outlaw all abortions but simultaneously left in place their laws permitting some abortions. This reasoning is addressed by Lee Strang in footnote #5. Bork adopts the view that Strang refutes, that “person” in “nor shall any state deprive any person of equal protection of the laws” means, not what the word actually means, but a technical legal meaning discerned not from what anyone ever said or wrote but from what lawmakers did. Strang demonstrates how what 1868 lawmakers did really is consistent with what they said and understood. If it is answered that people of the time thought that life began at some specific point after conception but before birth, and that that understanding was written into the due process clause, then the laws they left on the books should uniformly reflect that understanding. Schlueter makes no claim that the laws displayed any such uniformity, nor, so far as I know, does anyone else. COMMENT: Bork argues as Roe’s notorious Footnote 52 does, that failure of law to protect a certain group of people consistently establishes the fact that those people are not fully human. Statement #10 responds to this absurdity: “Although the ideal of law is equal protection of all humans, human law is as imperfect as humans. ...[There are] practical [and legal] reasons to prosecute abortionists but not moms.... It would be hypocritical to charge aborting moms with being accessories to murder, without first charging judges. The degree to which laws fail to give ‘equal protection’ to all humans is no evidence of the degree to which people are not humans. Such a legal theory is absurd, unknown outside Footnote 54, cannot be taken seriously, and certainly merits no attention as it faults laws for being no better than is humanly possible.” ...Schlueter quotes Lincoln about the evils of slavery and the rights of all men to self-government....Lincoln...never suggested that the Supreme Court could abolish slavery by a proper interpretation of the Fifth Amendment. At the time he spoke, the District of Columbia and some territories, all governed by Congress and so subject to the due process clause, had laws permitting and protecting slavery. Apparently no one, including Lincoln, imagined that that clause gave the federal courts the power to prohibit slavery. Yet a slave was surely as much a person as an unborn child. COMMENT: More tangled logic. The 5th Amendment, as I said, is about the federal government taking liberty “without due process of law. “No person shall...be deprived of life, liberty, or property, without due process of law....” Slaves weren’t even held by states, but by individuals. Not until 1868 did our Constitution take jurisdiction over state laws which help individuals violate Constitutional rights. [Bork’s last sentence, repeated:] Apparently no one, including Lincoln, imagined that that clause gave the federal courts the power to prohibit slavery. Yet a slave was surely as much a person as an unborn child. COMMENT; Bork notes the equivalance between the “personhood” of a slave and a baby, but then assumes that because our Founders took 71 years from ratification of our Constitution in 1789 to our Civil War in 1860, that they must have thought slavery didn’t violate any founding principles. Is the buildup over those years, the ripping of American culture apart, the “civil disobedience” of projects like the Underground Railroad, the bitter debates in Congress, the buildup climaxing into actual military war, nothing? Liberals are threatening civil war now, 21 years short of what it took then. Yes, there is equivalence. SCOTUS stoked the flames then and now. No, the violation of our founding documents then and now is not nothing. It is not disproved by how long it takes before America breaks in two. If there were no other objections to Schlueter’s reading of the due process clauses, it should be enough that for two hundred years, in one case, and almost a century and a half, in the other, nobody suspected that those clauses meant what Schlueter would have them mean, not the men who proposed them or those who ratified them. The presumption is overwhelmingly against any revolutionary interpretation of the Constitution that occurs this late in the day. COMMENT: Bork assumes prematurely that he has proved his is the original understanding, an assumption challenged in footnote #5. Although Bork’s focus on the “due process” clauses throws his reasoning off center, what is more surreal is an air of placid national consensus about slavery, and later about abortion. As if controversy about the meaning of founding documents was mild. As people turned to what the Bible actually says about slavery, our culture finally came to understand its unthinkable cruelty, and free Americans could no longer say nothing or do nothing. Today consciences have been spared pricking by churches telling people politics is “dirty” and is so far down the list of spiritual priorities that it can’t even be allowed in church, while prolifers have, as Schlueter points out, adopted Scalia’s relativism, when they are in court, about whether babies are humans (Prolifers talk strong out of court, but won’t say “it’s a baby, so you have to outlaw killing babies in every state” in court.) Schlueter’s solution is to have the Supreme Court declare all abortions violations of the due process clauses, and then have Congress enforce the ruling by legislating under section five of the Fourteenth Amendment. Aside from misuse of the due process clause involved, that solution assumes a judicial and social consensus antagonistic to all abortions so broad and intense as hardly to require such drastic action by Congress and the courts. Roe would be jettisoned and state legislatures would outlaw abortions. But the notion that any such anti-abortion consensus lies in any foreseeable future is a fantasy. COMMENT: Well, that was 27 years ago. It is still beyond the vision of most prolifers, I sense. Here Bork says as much as “once you change hearts you won’t NEED to change laws”. He must go to church. That sounds like the same excuse for doing nothing that you hear in “church”. But he is a judge: doesn’t such sophistry equally implicate all law? What law is needed, if “changing hearts” leaves no need for law? The fact is that national debate about law pressures people who want to keep doing evil to interact with the reasons for outlawing their evil. Many hearts, facing those reasons for the first time, repent. Technical detail: I don’t find where Schlueter thought “the Supreme Court [should] declare all abortions violations of the due process clauses”. He said that is what several prolife leaders wanted, in their joint statement. His own vision is “a Supreme Court ruling that would extend due process and equal protection to unborn persons.”