A reprint from
THE
AMERICAN JOURNAL
OF
JURISPRUDENCE
An International Forum
For
Legal Philosophy
1995
Volume 40
NOTRE DAME LAW SCHOOL
NATURAL LAW INSTITUTE'
Lynch, POSTERITY: a CONSTITUTIONAL PEG FOR THE UNBORN, 40 AJJ 401 (1995)
CASES
Alamo School District v. Jones, 182 Cal.App.2d 180 (1960) 4
Anderson v. United Realty Co., 79 Ohio St. 23, 86 N.E. 644 (1911) 5
Barber v. Pittsburgh, F.W. & C.R. Co., 166 U.S. 83 (1897) 5
Coggs v. Berherd, 2 Ed.Raym. 909 (1703) 5
Gannon v. Albright, 183 Mo. 238, 81 S.W. 1162 (1904) 4
Haward v. Howe, 12 Gray (Mass.) 49 (1858) 4
Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409 (1900) 4
Hockett v. State Liquor Licensing Board, 110 N.E. 485, L.R.S. 1971B, 7 (1915) 2
Kay v. Scates, 37 Pa 31 (1860) 4
Larew v. Larew, 146 Va. 134, 135 S.E. 819 (1926) 4
McIntosh v. Dill, 205 P. 917 (1922) 4
Roe v. Wade, 410 U.S. 113 (1973) 2
Scott v. Sanford, 60 U.S. (19 How.) 404 (1857) 3, 4
Sinkler v. Kneale, 401 Pa 267, 164 A.2d 93, 94 (1960) 4
United States v. Cruikshank, 92 U.S. (2 Otto) 542 (1876) 3, 4
White v. Hart, 80 U.S. (13 Wall.) 646 (1872) 4
CONSTITUTIONS
United States
Preamble 2
Art. I, § 8, cl. 17 4
Art. III, § 3, cl. 2 4
Art. IV, § 2, cl. 1 4
Art. IV, § 3, cl. 2 4
03rd Amend 4
04th Amend 4
05th Amend 4
14th Amend 5
22nd Amend, § 2 5
26th Amend 5
MISCELLANEOUS
2 Farrand, Max, The Constitutional Debates 5
21 Exodus 22 3
3 Rotunda, op cit, p. 663 5
American Declaration of Independence, § 2 4
Aristotle, Politics, VII, 1335b, 24-26 3
Chitty on Contracts (23rd ed, 1968) 134 5
Hobb, Leviathan (1651) 5
Laqueur, The Human Rights Reader (1979) 5
Locke, Second Treatise of Government (1690) 5
Magna Carta (1215), Art. 54 3
Noonan, Contraception, 86-88 (Harv. U. Press, 1965) 3
Restatement of Contracts (1st) § 77 5
Verdross, Forbidden Treaties int'l Law, 31 AJIL 571 (1937) 5
Verdross, Jus Dispositivum & Jus Cogens in Int'l Law, 60 AJIL 55 (1966) 5
COMMENT*
POSTERITY: A CONSTITUTIONAL PEG FOR THE UNBORNJAMES JOSEPH LYNCH, JR.1., J.D.
Attorney at Law
Neither the 5th nor the 14th Amendment defines person. The 14th Amendment defines citizenship.2 In other contexts, the court has held that aliens3 and non-natural persons4 are persons entitled to Constitutional protection.5 Not to recognize the unborn as a person is therefore an anomaly. As "Person," is used without qualification, the most logical place to look for meaning is the Preamble,6 because while its purpose is not to create rights,7 it does define for whom the rights were created.8 The words
*
The idea that a fetus might be a member of posterity first appeared in Aortion and American Jurisprudence: A Propspective Policy (Copyright 1987) by James Joseph Lynch Jr.,, Attorney-at-law. "Posterity" in the preamble and Positivist Pro-Lief Position, By Professor Raymond B. Marcin, appeared in the 1993 issue of the American Journal of Jurisprudence, Vol 38, p. 273. We are pleased to offer this comment by Mr. Lynch on the subject of Professor marcin's article.1 James Joseph Lynch is the author of Abortion and Inalienable Rights in American Jurisprudence: A Proespective Policy (1987), and has filed amicus curiae briefs in : Webster v. Reporductive Health Services, 492 U.S. 490 (1989); Ohio v. Akron Reproductive Ctr., 497 U.S. 502 (1990); Hodgson v. Minnesota, 497 U.S. 417 (1990); Turnock v. Ragsdale, 503 U.S. 916 (1992); Bray v. Alexandria, 113 S.Ct. 753 (1993); Planned Parenthood v. Williams, (Calif., No. 5031721, 1994). The views expressed herein are the author's.
2
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, ..."3 E.g., Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); U.S. Const., Art. VI, Treaty Clause; McKechnie, Magna Carta, Art. 41 (Aliens).
4 See Chicago B. & Q. R.R. Co. v. Iowa, 94 U.S. 155 (1877).
5 E.g., Land v. Dollar, 330 U.S. 731 (1947) (Replevin; Stock taken under color of federal law).
6 The first record that a sovereign rules with the consent of the governed appears to be I Sam. 16, II Sam. 5, 9-20, I Kings 1-2. When David's father died, he ruled over the seven tribes of Judah for seven years. Then the elder of Israel met with Davit at Hebron, and they made a contract for David to rule them as well. Thereafter David ruled over all of Israel and Judah for forty years. Other codes, most notably the Code of Hammurabi, were in writing, but were unilateral acknowledgments of human rights. The Magna Carta, infra, appears to be the first written document executed by both the sovereign and its subjects. The Constitution abolished traditional sovereignty, placed sovereignty in the People, signed by their representative, and ratified by them according to their respective state procedures.
7 Scott v. Sanford, 60 U.S. (19 How.) 404 (1857); Cruikshank, supra, 92 U.S. (2 Otto), 542, 549. The 13th & 14th Amendments do not overrule Scott, but only remove the limitations found, thus enlarging the class of persons who are citizens.
401
"people of the United States" and "citizens" are synonymous terms.9 The Preamble creates two classes of sovereignty, "ourselves" and "our Posterity."10 Its purpose appears to be to include "Posterity"11 on an equal footing with, and the same rights as, "ourselves" as evidenced by the parallel structure of the phrase. Therefore, "Posterity," as to those who are lives in being is synonymous, if not with "citizen,"12 surely person."13" This understanding is consistent with an understanding of the meaning of posterity in 1776.14 In 1644, in a well known pamphlet, it was argued that Parliament could no more censure the issue of the mind than it could the issue of the womb."15 At common law, certain members of future generations, fetuses,16 were a life in being for the purposes of the Rule Against Perpetuities.17 Moreover, prenatal injuries were to a limited extent, recognized at Common Law.18 and it does not appear that tort actions for the injuries were barred.19 Had the framers used "and our heirs", it would
8 Scott v. Sanford, 60 U.S. (19 How.) 404 (1857); Cruikshank, supra, 92 U.S. (2 Otto), at 549.
9 Scott v. Sanford, 60 U.S. (19 How.) 404 (1857); Cruikshank, supra, 92 U.S. (2 Otto), 542, 549.
10 Abortion and Inalienable Rights, etc, supra, at footnote 1, pp 11-12.
11 "Posterity" is capiitalized in the original. As a noun is capiiitalized only if it identified a particular person, place, or thing, it implies the framers considered the word important.
12 See footnote 9, supra. It is probably more accurate to say the unborn is a person who becomes a citizen (§ 1, 14th Amendment), except (26th Amendment) for the right to vote.
13 See footnotes 4 and 12.
14 Abortion and Inalienable Rights.
15 Milton, John, "Aeropagitica" (1644)..
16 Aristotle, Politics, VII, 1335b, 24-26; Acquinas, Summa Theologiæ, 1, q. 76, a. 5 and q. 118; Noonan, Contraception, 86-88 (Harv. U. Press, 1965). The Old Testament provided a remedy against persons causing a miscarriage. 21 Exodus 22. It is not repugnant to the 1st Amendment Establishment Clause merely because civil law corresponds to the tenants of some religious beliefs. E.g., Witters v. Washington Dept of Social Svcs for the Blind, 474 U.S. 481 (1986).
17 Gray, The Rule Against Perpetuities (4th Ed.); Alamo School Dist. v. Jones, 182 Cal.App.2d 180, 6 Cal.Rptr. 272 (1960).
18 "To kill a child in its mother's womb is now no murder, but a great misprision: but if the child be born alive and death by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them." Lord Coke, repeated by Blackstone at Book IV, p. 198. His reasoning by have been influenced by (1) "No man shall be taken or imprisoned upon the appeal of a woman, for the death of any other than her husband." Magna Carta (1215), Art. 54. As the fetus was not her husband, naturally, there was a failure of evidence. (2) medical knowledge as to a fetus was quite primitive when compared to modern medical practices.
19 Sinkler v. Kneale, 401 Pa 267, 164 A.2d 93, 94 (1960); McIntosh v. Dill, supra, 205 P. 917 (1922); Halsbury's Laws of England (1st Ed, 1911) Infants §§ 132, 135.
402
have created the equivalent of a fee simple absolute with powers of alienation,20 a concept clearly inconsistent with the concept of "unalienable rights" found in the Declaration of Independence21 and the concept of an "indestructible and perpetual union" in the Preamble, whereas is construed as a fee tail,22 it would be consistent with an intent to create "unalienable rights" and a "perpetual union,"23 for the protection of guture generations, including the unborn.
The Constitution was submitted to the People for ratification.24 Implicit in the Preamble is the concept that the Constitution is to be a social contract25 wherein promises the individual inalienable rights, in return for which the individual promises to conform to the laws of society which do not derogate26 from inalienable rights. Mutual promises have always been considered sufficient consideration for enforceability.27 As persons under the age of capacity28 could not consent,29 [it appears] the
20 White v. Hart, 80 U.S. (13 Wall.) 646, 650 (1872). Other constructions result in a power of alienation inconsistent with unalienability: contingent remainder, Gray, The Rule Against Perpetuities (4th Ed.); Alamo School District v. Jones, 182 Cal.App.2d 180, 6 Cal.Rptr. 272 (1960); the rule in Shelly's Case, 31 Corpus Juris Secundum, Estates § 4.
21 "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these rights, Government are instituted among Men, deriving their just powers from the consent of the governed, ...." American Declaration of Independence, § 2; Schwartz, The Bill of Rights, A documentary history.
22 Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409 (1900); Haward v. Howe, 12 Gray (Mass.) 49 (1858); Gannon v. Albright, 183 Mo. 238, 81 S.W. 1162 (1904); Kay v. Scates, 37 Pa 31 (1860); Larew v. Larew, 146 Va. 134, 135 S.E. 819 (1926). The Constitution concedrns estates and intersts in land. Art. I, Sec. 8, cl. 17 (District of Columbia; Places purchased); Art. III, Sec. 3, cl. 2 (forfeitures); Art. IV, Sec. 2, cl. 1 (privileges and immuninties), Sec. 3, cl. 2 (property of the United States); Amlendment III (Quartering of soldleirs); Almendment IV (Secure in . . . Houses); Amendment V (nor be deprived of . . . property . . . nor shall private property be taken. . . .")
23 28 American Jurisprudence, Second, Estates, § 53. Cf., Barber v. Pittsburgh, F.W. & C.R. Co., 166 U.S. 83, 17 S.Ct. 488, 41 L.Ed. 925 (1897); Anderson v. United Realty Co., 79 Ohio St. 23, 86 N.E. 644, affmd 222 U.S. 164, 32 S.Ct. 50, 56 L.Ed. 144 (1911) (recognizing by dictum common law rule).
24 2 Farrand, Max, The Constitutional Debates, pp. 152, 163, 177, 193, 196, 209, 565, 582, 590, 651 3 Rotunda, op cit, p. 663, note 1.
25 E.g., Hobb, Leviathan (1651); Locke, Second Treatise of Government (1690); Laqueur, The Human Rights Reader (1979).
26 Verdross, Forbidden Treaties int'l Law, 31 AJIL 571 (1937); Id, Jus Dispositivum & Jus Cogens in Int'l Law, 60 AJIL 55 (1966).
27 Chitty on Contracts (23rd Ed, 1968) 134; Restatement, Contracts (1st) § 77; Coggs v. Berherd, 2 Ed.Raym. 909 (1703).
28 "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. " 22nd Amend, § 2.
29 Chitty on Contracts.
403
framer's intended that adults were of the class "our selves," and all others of the class "Posterity,"30 to include lives in being, i.e. the unborn.
Taking the approach that the unborn are members of 'posterity' answers a number of theoretical problems. First, it is further development of constitutional theory that recognizes that there is not just one right, or more precisely - life, at stake, but two, the mother's, a member of ourselves, and the unborn, a member of Posterity. Second, it answers why the State cannot force a women to terminate pregnancy or engage in eugenics, because the life cannot be taken absent justification or excuse. Third, it assures the woman's right to terminate pregnancy is not abridged where to carry to term would be an undue burden, i.e. the mother has the right to self-defense, thus where fetal life endangers her life. Fourth it sets a standard of preserving both lives, if possible, guarding against undue state influence. [Fifth,, it takes the courts out of the quagmire of trying to guess when the unborn become "viable." With conception, there is no guesswork.] Finally, it does justice by respecting the Constitutional guarantee to protect human life, removing from the discussion a word, abortion, which is inflammatory, ending, hopefully, the carnage done to women, Posterity, and others.
30 2 Stephens Commentaries 342 (1841)
404