Monday, July 12, 2010

INSTALLMENT 4: Why the Supreme Court Decision in Roe Versus Wade Was Legally Incorrect and Unconstitutional

FINALLY ... Installment 4 of Tim J.'s article on the infamous Roe v. Wade decision.  If you have not read the earlier installments, here's Installment 1, here's Installment 2 and here is Installment 3.  Prepare to be edified!

After blatantly skipping over the framers’ intent, the Supreme Court investigated the issue of whether the unborn were considered people according to the use of the word ‘person” in the Constitution, and ultimately decided that they were not.  Because “the Constitution does not define “person” in so many words”, the Court was forced to piece together a definition based on the many uses of the word throughout the document, a process that was doomed to failure since the Court had not bothered to discover what the original intent of the framers was.  In searching for the word “person”, the Court found most of the uses of the word in the qualifications for holding a public office, and concluded that since these uses applied only after birth, the unborn were not people according to the Constitution.  Although these qualifications for public office would ban the unborn, they also would deny any born person who could not meet the requirements for age, residency, and citizenship.  Surely, the Court would not withdraw the rights of personhood from any citizen simply for not meeting these qualifications, but yet this was exactly what the Supreme Court did in the case of the unborn.  By holding that the unborn were not people under the Constitution, the Court went against what John Marshall, a previous Chief Justice of the Supreme Court, had ruled in Gibbons versus Ogden in 1824, which was that “the terms in the Constitution must be interpreted expansively, not restrictively”.  Thus, it is only too clear that the Court’s laughable approach to the Constitutional issue of personhood was indicative of the fact that the Court had already made its decision regardless of the evidence.

When the Supreme Court examined the Constitution, it focused largely on the 14th Amendment, which has a clause that states, “…nor shall any State deprive any person of life, liberty, or happiness without the due process of law.”  After little deliberation, the Court took the position that the 14th Amendment banned the unborn child from the rights enjoyed under this amendment by people already born.  However, this stance was based only on a selective collection of previous court decisions and the Court’s own judgment, not on the all-important intent of the framers of the 14th Amendment.  Around the time of the drafting of the amendment in 1868, there were several influential facts and court cases that suggest that the unborn was indeed intended to have rights.  For instance, in the 1860’s, five U.S. territories enacted anti-abortion laws.  Since these territories were not yet states, Congress needed to approve these laws, and so, in order for them to pass, many of the Congressmen who would eventually write the 14th Amendment must have voted in their favor.  Also, in 1873, just five years after the enactment of the 14th Amendment, the District of Columbia recognized abortion as illegal.  Again, one can see that Congress must have had a pro-life mentality, for it had full jurisdiction in the area of the District of Columbia’s criminal law.  Thus, it is apparent that the Court was incorrect in their claim that the 14th Amendment barred the unborn from the basic human right to life, when the prevailing attitude of even the country’s political leaders in the 1860’s can be reasonably ascertained to have been for extending rights to a fetus.

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