According to Hillary Clinton, “The unborn person doesn’t have constitutional rights.” Why did her statement anger activists on both sides of the abortion issue? Because in one breath she acknowledges that nascent human offspring are persons, and then asserts that they have no rights.
By acknowledging that they are persons she riles the abortion advocates who withhold the status of humanity from our offspring until after birth. But by denying that our nascent descendants have constitutional rights she nullifies the substantive and procedural due process of law the Constitution extends to all persons, regardless of their material condition.
Justice Blackmun, who wrote for the Court in the infamous Roe v. Wade decision, acknowledged that the denial of personhood is the sine qua non of its lawfulness (or lack thereof), when he wrote:
The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The Appellant conceded as much on reargument.
Treating the issue of personhood as if it were simply a matter of empirical fact and human will, Justice Blackmun finds no basis in man-made law and practice, including of course previous judgments of the U.S. Supreme Court. In this latter regard he particularly refers to the Court’s decision in United States v. Vuitch, observing that “we there 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.”
But the Constitution of the United States derives its lawful authority from the people of the United States, who ordain and establish it. They obtained that authority on account of their Declaration of Independence from the British King, and its aftermath. As a matter of fact, that Declaration was vindicated by their successful defeat of the King’s efforts to maintain his rule over them by force. But to vindicate their assumption of independence as a matter of law, “the Representatives of the United States of America,” said in the Declaration that they were “appealing to the Supreme Judge of the world for the rectitude” of their intentions. They said they were acting “by the authority of the good people” of the Colonies, as they moved “to assume among the powers of the earth the separate and equal station to which the Laws of nature and of Nature’s God entitle them.”
So the law under which the people of the United States ordain and establish the Constitution derives from their assertion of right under the natural law, ordained by God. They act, therefore, according to their nature as human beings, “endowed by their Creator with certain unalienable rights,” including first of all, the right to life. In the Declaration, they make clear that this God ordained natural endowment defines the purpose of all institutions of human government, which exist “to secure these rights.”
Because injustice often proceeds by use of force, the security of right cannot be sustained without it. The experience of America’s war for independence illustrates this fact. Unjust power, derived from the assembled forces of those intent on suppressing the exercise of God-endowed right, must be opposed by just power, derived from the assembled forces of those who are willing to do right, and who therefore consent to join in its exercise. (It’s useful here to remember that the Latin word for army was “exercitus”, meaning an armed force organized and trained for the rigors of war.)
Both in law and fact the successful assertion and preservation of the American people’s sovereignty over themselves depends on the logic of unalienable right set forth in the Declaration of Independence. Unalienable rights are those endowed by God. They oblige the respect of all human beings, on account of the law by which He made and governs human nature.
Human beings who actively consent to fulfill this obligation are ministers of God’s sovereign government. But if and when, by forcefully violating, suppressing or otherwise thwarting those who act to respect this obligation, unjust power positively disregards His rule for human nature, those who constitute that power relinquish the claim of sovereignty derived from God’s endowment. They rely instead on the rule that “might makes right,” regardless of even the highest law.
The majority’s opinion in Roe v. Wade never relies on the Declaration’s understanding of unalienable right. But it pervades Blackmun’s disingenuous discussion of what he himself acknowledges to be the critical issue. Are the nascent offspring of human beings “persons” with rights the Constitution obliges us to respect? By passing reference he alludes to the fact that the Ninth Amendment, by forbidding any denial or disparagement of rights retained by the people, forbids the denial or disparagement of unalienable rights. But, since all human beings are endowed by God with unalienable rights, if our offspring are human, they are so endowed.
This is why the issue of human development comes into the picture. Though the fact is often neglected, it did so as well when slavery was at issue under the Constitution. Advocates of slavery argued that slaves were not human beings, and therefore had no rights except as determined by their human masters. But the original Constitution of the United States, in describing the population to be included for purposes of determining the size of each State’s Congressional delegation, said that it “shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
Contrary to the derogatory charges made against America’s Founders, this in no way implies that slaves, much less blacks in general, were “3/5 fifths of a person.” Some blacks, even in the then slave States, were among those referred to as “free persons.” Moreover, in order to determine the number of persons excluded from the enumeration, each slave had to be counted as one person. If anyone went looking for 3/5 of a person, no actually living bodies would have been found to make up the required proportion, unless only veterans and others deprived of limbs in battle were aimed at, which is palpably absurd.
So even when the Constitution was framed there would have been no actual basis for pretending that slaves were not included among the class of persons as the term is used in the U.S. Constitution, except we allow for the use of the term in application to those who are not human beings at all. In that case, however, the word as used in Article I.3 of the original Constitution would not apply at all to slaves, since it did not apply to other non-human animals. But the historical record shows that the wording was not only meant to include slaves, it was inserted precisely in order to placate the demands of the slave states.
Of course, thanks to advances in our scientific understanding, we now have even less excuse for pretending to misunderstand who is human and who is not. The discovery of Human DNA obviates the need for debate. We know that our nascent human offspring are identifiably human, from the moment of conception. But if they are identifiably human, on what grounds do we now purport to exclude them from humanity? In the 19th century, the obdurate advocates of the justice of what they called “Negro slavery” had more evident reason for such an error than we have now.
The controversy over Hillary Clinton’s remark thus goes beyond the fact that she contradicts the U.S. Supreme Court’s finding that our nascent offspring are not “persons.” It raises the issue of humanity itself; and of the doctrine which holds that unalienable rights are intrinsic human qualities that must be respected notwithstanding any human laws to the contrary. This is the doctrine on which the liberty of the people of the United States entirely rests.
Clinton’s denial of the constitutional rights of persons thus points to something even more sinister — which is the elitist faction’s rejection of the Declaration’s premises of right, equally endowed to all human beings willing to respect it. But these are the premise on which the Constitution of the United States entirely rests.
Clinton’s remark thus pointedly calls attention to the elitist faction’s attack on the very root of the sovereignty of the American people. If unborn persons have no rights that power is obliged to respect, what about others inferior in some respect of power? Where right depends on the disparity of power, when that disparity grows great enough, will some judge, in light of their much greater power, that all the rest have no more standing than the stones?
This reassertion of human inequality goes beyond the Orwellian nightmare, that some animals are more equal than others. It opens the way to the as yet unrealized horrors of a world in which humanity, oppressed by power, no longer whispers, as Solzhenitsyn put it, “from under the rubble.” Except for the powerful few, we will have become the rubble. They call this progress?
