By: Mary Mostert, Analyst, Original Sources (www.originalsources.com)
March 10, 1999
Following my recent column entitled "Justice Blackmun Changed the Meaning of 'life' and 'due process'" following Blackmun's death, a young law student, Scott Noth, sent me the following e-mail, which literally opened up a whole new world of thought on the subject of Blackmun, Roe vs. Wade and the status of the unborn.
"Regarding J. Blackmun's unfortunate interpretation of our constitution in Roe v. Wade, in which the legal precedent is established that fetuses, though human, are not constitutionally "persons":The first sentence of the 14th Amendment, Section 1 reads, "All persons born or naturalized in the United States..." An objective review of the grammar of the first part of this sentence is highly important in understanding the intention of the legislators of that amendment. In the way it is written, the subject "persons" is described as having been subject to the actions of being born or naturalized. To use more precise grammar, it means "All persons [who were] born or naturalized in the United States." It is wrong to interpret this sentence as, "All persons [who became persons by being] born or naturalized in the United States."
Scott is referring to the Roe vs Wade decision by Justice Blackmun in which he used the wording of the 14th Amendment to declare the unborn are not "persons" protected by the Constitution. Blackmun wrote:
"The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, 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.] [p*158] All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.
Scott Roth observed that Blackmun's interpretation of the word "person" in the sentence in the Constitution "All persons born or naturalized in the United States..." expresses an idea that the
"grammar and choice of words" in the sentence assumes that "the subject of the sentence ('persons') has been passively subject to particular actions (birth or naturalization), which when considered alternately, suggest that the subject was a 'person' before the actions were commenced. As it is written, one may reasonably interpret Congress's grammar and choice of words to be supportive of the conclusion that "persons" are "persons" before either birth or naturalization happens to them.
"For example, it is obvious that my immigrant ancestors were constitutionally 'persons' before they were 'naturalized'. Were they "non-persons" while crossing the Atlantic? It is absurd to suggest that they were not - they certainly did not lack the legal capacity to sue as 'persons' in civil courts of U.S. jurisdiction before they were naturalized; and, an objective reading of Section 1 of the 14th Amendment brings one to the conclusion that the U.S. Congress in 1868 understood the absurdity of that suggestion. Congress's understanding is reflected in its grammar and choice of words. It is safe to assume that Blackmun would agree.
"So, why does Blackmun refuse the same interpretation to the other verb, 'born'? Does he wishfully think that Congress was simply too lazy to write a separate sentence referring to birth, such as,... And, all humans who were BORN in the U.S., THEREBY becoming persons....'? If such a sentence were to be found in the 14th Amendment, then I would easily change my position to oppose the recognition of human fetuses as "'persons' under the Constitution.
"Of course, I would then support a new amendment to rectify this breach of the natural law). But, as it is written, one may reasonably interpret Congress's grammar and choice of words to be supportive of the conclusion that 'persons' are 'persons' before either birth or naturalization happens to them."
"Blackmun's reasoning on the personhood of the unborn. This interpretation of the 14th Amendment, section 1, was discussed in class by my Constitutional Law professor, John Tuskey, who had read of the interpretation in a law review article on the Roe v. Wade decision."
In effect, Blackmun stated the phrase "All persons born or naturalized in the United States..." in the Constitution, means that infants become "persons" by being born." If that is true then foreigners would become persons become "persons" by becoming naturalized citizens. Because of Blackmun's decision, the abortion procedure called "Partial Birth Abortion" was developed to eliminate unborn children in a manner that would satisfy the letter of the Blackmun interpretation. The infant is partially delivered, feet first, and before the head is delivered, the abortionist punctures a hole in the base of the infant's skull and sucks out its brains. This barbaric practice has become a hotly debated "option" - solely to "fit" the absurd view that being born makes the infant a "person," just as being set free made a black man a "person" back in 1857 when the Supreme Court, in a remarkably similar decision, declared that the protections outlined in the Constitution did not apply to slaves.
Yet, we have in the State of California alone as many as 500,000 illegal aliens in the public schools because the Supreme Court has ruled that the protections of due process and human rights extend to those who are not naturalized citizens, even to illegal immigrants.
If the Supreme Court was consistent, it would have declared that illegal aliens, or visitors to our shores, were not protected by the Constitution of the United States, because they were neither "naturalized" nor "born in the United States" - and, therefore, we should be able to eliminate them in any manner we saw fit. That is what happened to both blacks and to the unborn following the Supreme Court decisions of Dred Scott in 1857 and Roe v Wade in 1972.
"There is an inconsistency in the way that our courts have categorized the unnaturalized and the unborn." Scott wrote back in response to my reply to him. "You mentioned the issue of categorizing illegal aliens. Can you imagine the legitimate outrage that one would encounter by suggesting that they are constitutionally not 'persons'? What if I were to injure an illegal alien, and then assert the defense in a civil court that "non-persons" can't sue me? I would be laughed out of court. And yet, (as you mentioned in a previous essay), an unborn human is uniquely resigned to float in constitutional limbo as neither 'person' nor 'property', while everything else (from beetles to Blackmun) fits neatly into one category or the other."
From beetles to Blackmun. Yes, indeed! In California several species of "fairy shrimp" which appear in puddles of water during rainy seasons, were placed on the "Endangered Species" list based on one flawed study. Thousands of jobs, millions of dollars and the survival of some companies suddenly depended on the "protection" demanded for bugs that appear on vernal pools.
Yet, somehow, the unborn of the human race of America, over 30% of whom are now eliminated with far less concern than the elimination of the bugs in mud puddles, have no protection under the constitution as interpreted by Justice Blackmun and six other Supreme Court Judges in 1972.
In January Senator Jesse Helms introduced the Unborn Children Civil Rights Act, which would correct Blackmun's problem with the English Language. The act of becoming a naturalized citizen, of being free if black or being born is not what causes a human being to be a person with rights. Those rights are given by God to all the human race - not by government, and least of all not by the U.S. Supreme Court.
How can rational people "protect" the fairy shrimp and then kill their own unborn children - and in the sacred name of saving the environment?
To comment: mmostert@originalsources.com
To reach Scott Noth: Galahad300@aol.com
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