Russell and Duenes

Are the Unborn Properly Considered “Persons” Under the 5th and 14th Amendments? Part 2

with 2 comments

I don’t believe the relevant question is: What did the word “person” originally mean to the public in 1791 or 1868, or frankly, at any other time? What’s relevant is this: Does the Constitution attempt to define the word “person?” The answer is “no.” This is precisely where Roe is relevant. Justice Blackmun, in writing the decision, of course knew that if the Court defined the unborn as a person, the appellant would have no case. 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.

Thus, the Court was in a jam. They wanted to legalize abortion, so they punted on defining human life, claiming that they need not define it. This is a gross miscarriage of jurisprudence on any understanding of it, precisely because it denies what was scientifically known in Blackmun’s day, namely, that a distinct human life begins at conception. Since the Constitution leaves “persons” undefined, we ought not try and read the Framer’s minds nor the prevailing opinions of the day. We ought to apply “person” in the Constitution to anything that has the ontological status of “person,” anything that has the nature of “human being,” and that would obviously include the unborn.



Written by Michael Duenes

February 15, 2011 at 5:33 pm

2 Responses

Subscribe to comments with RSS.

  1. “What did the word “person” originally mean to the public in 1791 or 1868”

    Of course, I was speaking from my biased perspective as an public-meaning originalist.

    Joshua House

    February 15, 2011 at 9:03 pm

  2. Indeed.


    russell and duenes

    February 17, 2011 at 10:40 pm

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: