September 17, 2009


Constitutional Persons:An Exchange on Abortion (Robert H. Bork & Nathan Schlueter, January 2003, First Things)

Nathan Schlueter:

The last half–century of "living constitutionalism" and its subsequent judicial license has left a badly scarred Constitution in its wake, severely undermining the delicate balance of powers that was part of the Founders’ original design. The "least dangerous branch" of Federalist 78 has arguably become the "most dangerous branch" of Brutus 15. As many liberals are beginning to discover, the surrender of self–government to the Supreme Court is a double–edged sword that can cut both ways. We must be cautious, therefore, about seeking unwarranted readings of our privileged moral principles into the Constitution. For the purposes of this essay I will assume without argument that the proper reading of the Constitution is a textualist reading as that term is used by Justice Scalia in his book A Matter of Interpretation. A textualist reading assumes that the primary guidance for interpreting the Constitution comes from text and context. As Justice Scalia describes it, "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." This principle excludes both "living Constitution" jurisprudence as well as "natural law" jurisprudence. According to this textualist jurisprudence, it seems to me, the unborn person reading is the most honest and legitimate, despite Justice Scalia’s claims to the contrary.

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. Therefore, the due process and equal protection clauses of the Fourteenth Amendment protect unborn children. To refute this syllogism, advocates of the restoration interpretation must either deny the major premise, that the legal person of the Fourteenth Amendment includes all human beings, or deny the minor premise, that an unborn child is a human being. Because virtually none of the life advocates are willing to deny the minor premise, the main point of contention must be the major premise.

So, do the due process and equal protection clauses of the Fourteenth Amendment include all human beings? Based on the text of the Constitution, its repeated construction prior to Roe, explicit statements of the framers of the Fourteenth Amendment, and valid inferences from state practices toward abortion, we can answer this question in the affirmative.

The first section of the Fourteenth Amendment 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." The problem is that the Constitution never defines the word "person." Justice Scalia, among others, rightly looks to context for guidance on the meaning of this term, and he finds no evidence that the word was intended to include unborn persons. In a speech delivered at Notre Dame in 1997 he pointed out that none of the references to "person" in the Constitution have prenatal application. For example, the second section of the Fourteenth Amendment states that "representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." Because there is no evidence that the framers contemplated counting unborn persons for purposes of apportioning representatives, Scalia argues, they must not have understood "person" to include "unborn person."

There are serious flaws in this argument, flaws that are attached to any contextual attempt to understand the meaning of the word "person" in the Constitution for due process purposes. The reason for this is that apart from the Fifth and Fourteenth Amendments every reference to person is context dependent—that is, each reference is intended to accomplish a particular limited purpose. Take Justice Scalia’s example. The means for determining numbers of persons in each state is regulated by the second section of the first Article of the Constitution. According to this passage, "actual enumeration" shall be made by Congress every ten years "in such manner as they shall by law direct." In other words, Congress can determine by statute those who should be counted in the census for purposes of allocating representatives. Surely Congress could constitutionally include unborn persons in the census count, and with good reason, as the count might be more accurate. On the other hand, this might be an impractical enterprise. A clearer example illustrating this contextual problem is the eligibility requirement for holding office in the House of Representatives. The Constitution states, "No person shall be a representative who shall not have attained to the age of twenty–five years." Does this mean that no persons under the age of twenty–five are protected by the due process clause? Of course not.

It is quite clear from the history of the Amendment that its framers did not intend to give Congress the power to determine personhood for due process and equal protection purposes. An early draft of the Amendment stated: "Congress shall have the power to make all laws which shall be necessary and proper to secure the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property." Several Republicans objected to this language because it would merely "effect a general transfer of sovereignty over civil rights from the states to the federal government, while effectively failing to limit the exercise of state power that had produced the black codes." Instead, the framers of the Amendment chose to lodge the prohibition in the Amendment itself, while leaving Congress corrective power. The Amendment clearly does not give Congress plenary power over the meaning of the first section of the Fourteenth Amendment. The strong implication of the text and history is that the courts would have a strong hand in enforcing its provisions. Scalia’s interpretation is implausible and would effectively emasculate the Amendment.

Another prevalent and yet erroneous interpretation of the Fourteenth Amendment holds that its provisions are limited exclusively to blacks. This reading is supported by neither the text of the Amendment, the history of its framing, nor its subsequent application. The Amendment was aimed not only at the "black codes" of various states, which sought to effectively reduce freedmen to slavery while technically obeying the provisions of the Thirteenth Amendment, but also at the entire constitutional apparatus that placed the rights of persons at the mercy of oppressive state governments. (Remember, whites that supported blacks in their quest for freedom were also in danger of retaliation.) In other words, the framers were seeking a constitutional remedy for protecting the rights of persons when the states failed to do so. For this reason, they chose to use the term "person" rather than "blacks" as the object of protection in the text of the Constitution.

Abundant evidence from the congressional debates over the Fourteenth Amendment indicates that the framers intended the word "person" to include all human beings. For example, the author of section one of the Fourteenth Amendment, John Bingham, stated that "before that great law the only question to be asked of a creature claiming its protection is this: Is he a man? Every man is entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal." And Senator Lyman Trumball declared that the Amendment would have the "great object of securing to every human being within the jurisdiction of the Republic equal rights before the law."

Robert Bork:

The main outline of Schlueter's position is familiar. Again and again, pro--life advocates have said that the constitutional guarantee that life not be taken without due process of law, found in both the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, means, properly interpreted, that unborn children may not be deprived of life by abortion. That reading seems to me absurd. I think it clear that the Constitution has nothing to say about abortion, one way or the other, leaving the issue, as the Constitution leaves most moral questions, to democratic determination. I am, therefore, one of those whom Mr. Schlueter criticizes as restorationists: Roe should be overruled and the issue of abortion returned to the moral sense and the democratic choice of the American people.

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. It is clear that the Fifth Amendment's due process clause was intended to guarantee that no one be deprived by the federal government of life, liberty, or property without regular procedures. The Fourteenth Amendment made that guarantee applicable against the states.

Can those guarantees of fair and regular procedures be read as applying to unborn children who are deprived of life? Certainly not. When the two Amendments 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.

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. The due process clause follows immediately after those guarantees and refers to the same persons mentioned in the preceding clauses. Not even the most tortured interpretation of the due process clause in the Fifth Amendment can make it apply to the unborn.

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. [...]

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. that it isn't even a contested question Constitutionally. The argument is entirely based on precedents of judicial activism commencing a century after the Founding. The presumption is overwhelmingly against any revolutionary interpretation of the Constitution that occurs that late in the day.

Posted by Orrin Judd at September 17, 2009 8:47 PM
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