An Issue Ignored in Dobbs
On June 24, 2022, the United States Supreme Court, ruling in Dobbs v. Jackson Women’s Health Organization,1 overturned its half-century-old Roe v. Wade decision,2 and the pro-life movement rejoiced. Remarkably, however, what the Court in Roe v. Wade had regarded as the central controlling constitutional issue in its opinion—whether a living, developing, human fetus in her mother’s womb is a “person” under the Constitution—was deliberately ignored in Dobbs v. Jackson Women’s Health.
The Right-to-Life Issue in Roe and Dobbs
More than fifty years ago Justice Blackmun framed that very issue and its controlling centrality quite clearly in his majority opinion in Roe v. Wade. In Justice Blackmun’s words:
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.3
Justice Alito, in his opinion for the majority in Dobbs, quite clearly announced that he and the four justices who signed on to his opinion were ignoring that very issue. As Justice Alito stated,
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.
Justice Alito’s deliberate reticence on the issue of “if and when prenatal life is entitled to any of the rights enjoyed after birth” is difficult to explain. One assumes that there was some felt necessity to ignore so vital an issue as whether the fetus is a “person” within the language and meaning of the Fourteenth Amendment. A likely surmise is that it was necessary to do so in order to hold together the tenuous majority’s willingness to overrule Roe. If that is the case, it would be vituperative to fault any of that tenuous majority of justices for not reaching the constitutional right-to-life issue. Even if some of us might wish that they had done more, they were and are true heroes—they did what could be done, and they did it in the face of death threats and the attempted assassination of one of their number.
Those advocating for the recognition of the constitutional right to life guaranteed to God’s littlest children need to take a close look at the jurisprudential background of the meaning of “person” and the rights of personhood under the United States Constitution, and to provide a framework for the argument that a fetal human being, living and growing and developing in her mother’s womb, is a person with the rights that persons possess under the United States Constitution.
Personhood in Roe and Dred Scott
It is in the context of the denial of personhood that a telling analogy has been drawn between Justice Blackmun’s denial of constitutional personhood to living, developing, prenatal human children in his 1973 Roe v. Wade opinion and Chief Justice Taney’s denial of constitutional personhood to Black human beings, slave or free, in his well-known and infamous Dred Scott v. Sandford opinion in 1857.5
The issue in the Dred Scott case was slavery, and more specifically whether Black persons, slave or free, had the rights that persons had under the Fifth Amendment to the United States Constitution.6
The question of personhood arose in a procedural context in Dred Scott’s lawsuit. The technical question involved the diversity-of-citizenship requirement for jurisdiction in the federal court system. The issue for decision was whether Dred Scott, a slave suing for his freedom, could be considered a citizen of Missouri so as to have the legal capacity to sue his “owner” Sandford, a citizen of New York, in a federal court. On that issue, Chief Justice Taney actually held that Black persons could not be considered “citizens” at all (not even free Black persons) because they could not be considered “people” within the meaning of that word “people” in the Constitution. In Chief Justice Taney’s words:
[N]either the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument [i.e., the United States Constitution].7
Notice that, in the above-quoted language, Chief Justice Taney was not denying that Dred Scott and others of his race were “persons.” He literally referred to them as a “class of persons.”
If the chief justice allowed that Black Africans imported as slaves (whether subsequently freed or not) were “persons,” did he nonetheless deny them constitutional personhood? A bit later in his opinion, the chief justice discussed the impact of the Fifth Amendment on the issues in the case. Again, in Chief Justice Taney’s words:
[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. . . .
It seems, however, to be supposed that there is a difference between property in a slave and other property and that different rules may be applied to it in expounding the Constitution of the United States. [I]f the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.8
It is logically impossible to avoid the conclusion that Chief Justice Taney was denying to Dred Scott and all others of his race the rights of “persons” under the Fifth Amendment—one of those rights of persons being the right to liberty. Moreover, in the last sentence of the immediately preceding quotation from his opinion, the chief justice clearly regarded enslaved Black persons as “property,” with the rights of “persons” belonging—not to the enslaved Black persons—but solely to their “masters.”
Summarizing—Chief Justice Taney’s opinion for the Court in the Dred Scott case declared that Black persons, slave or free, were not “part of the people” and were therefore not “included in the general words used in” the Constitution. He also concluded that enslaved Black persons were the “property” of their masters and were not entitled to the rights of persons under the Fifth Amendment—those rights instead belonging to their masters.
We see today the weakness—raising an element of strong doubt—in Chief Justice Taney’s word usages and attempts at reasoning—recognizing Blacks as “persons,” but then treating them as something akin to “nonpersons” (persons without the fundamental rights of personhood that the Constitution guarantees to “persons”). That weakness and element of strong doubt suggests that the chief justice should, perhaps, have applied what is often referred to as the “honest doubt” moral principle—an offshoot of the oft-invoked “Golden Rule” of doing unto others as you would have them do unto you. In context, it is the basic moral insight that if there is an honest doubt as to whether a given person ought to be regarded as a person or as some lesser entity (e.g., an item of property), any truly humane and civilized society would and should resolve that doubt in favor of “personhood” rather than against it.
Likely, Chief Justice Taney was cowed by (or perhaps a willing participant in) the “political correctness” or “woke” intimidation of his day. It was not as if his opinion that Blacks are persons but not persons under the Constitution and are rather items of property was the universally agreed-upon attitude in the legal and societal climate of the day. In foisting his opinion on American society and on the American legal system, Taney was ignoring the input (and even the existence) of a strong Abolitionist movement in the political and legal thought of the 1850s. The 1850s were a divisive era in which the then-newly formed Republican Party, founded explicitly as an anti-slavery political movement, was emerging as the major rival of the pro-slavery Democratic Party. The Republicans had grown to the point of entering a candidate in the presidential election of 1856, the year before Chief Justice Taney wrote his opinion, and a winning candidate for the presidency in 1860, just three years after Chief Justice Taney wrote his opinion. Interestingly, there have only been two times in the entire history of the United States Supreme Court when the Court has denied constitutional personhood to any classes of human beings—the Dred Scott decision in 1856 and the Roe v. Wade decision in 1973.
The opprobrium heaped on the Dred Scott decision in the decades that followed, marked by the bloody American Civil War and the eventual insertion of the Thirteenth, Fourteenth, and Fifteenth Amendments into the Constitution, bore a lesson for the United States Supreme Court, and bears a lesson for the Court today in the wake of the Dobbs decision overturning Roe. The lesson stems from the very last sentence of Justice Alito’s majority opinion:
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.9
Thus did the Dobbs Court leave the fundamental issue of the right-to-life of God’s littlest children to the tender mercies of the fifty state legislatures, and to future decades of divisive chaos among the states and among the citizenry of the nation. And, perhaps more importantly, thus the urgency of the need for a serious reassessment by the Dobbs Court of its deliberate choice to avoid deciding whether prenatal life is entitled to the constitutional right to life that persons enjoy.10 What follows are some suggestions that might be helpful in such a reassessment.
Justice Blackmun’s Dismissal of the Fetal Right-to-Life Issue
In his Roe v. Wade opinion, after acknowledging that if the suggestion of personhood were established, the challenge to liberal abortion laws would collapse, because the prenatal child’s right to life would then be guaranteed specifically by the Fourteenth Amendment,11 Justice Blackmun went on to consider the usages of the word “person” in the Constitution, and drew the conclusion that none of those usages (and these are Justice Blackmun’s words) “indicates, with any assurance, that it has any possible pre-natal application.”12
Some may see in Justice Blackmun’s use of the hedging expression “with any assurance” an element of doubt, raising the “honest doubt” moral principle—the basic moral insight that was raised earlier in connection with the Dred Scott case—that if there is an honest doubt as to whether a given human entity possesses “personhood,” any truly humane and civilized society would and should resolve that doubt in favor of “personhood” rather than against it.
Justice Blackmun, however, took the position that, if the personhood of the fetus is not specifically mentioned in the Constitution, it does not exist. An honest-doubt mode of thought might suggest a more inclusive and diverse understanding of constitutional personhood.
Personhood for Fetal Human Beings in the Womb
In addressing Justice Blackmun’s contrived demand for “assurance” that the usages of the word “person” in the Constitution might be understood as recognizing personhood in the living, developing human being in her mother’s womb, we find that there is some evidence in the basic norms of the Judeo-Christian biblical culture that originally informed the founding of the United States of America, and indeed in the basic grounding norm that found its way into the founding document of the United States of America, the Declaration of Independence.
In the Judeo-Christian biblical culture embedded in the prophetic writings of Jeremiah and David, we learn that we are all God’s children from the instant of conception:
The word of the Lord came to me, saying, “Before I formed you in the womb I knew you.” (Jeremiah 1:4-5)
For you created my inmost being;
you knit me together in my mother’s womb. (Psalms 139:14)
American culture, as embedded in its 1776 founding document, the Declaration of Independence, even before its independence from Great Britain was physically accomplished, conceived itself on that very same premise: that we are all children of the Creator God from the moment of our creation:
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 are Life, Liberty and the pursuit of Happiness. [Emphasis added.]
If these evidences of American culture’s respect for the personhood of the prenatal human being were allowed to inform the meaning of the word “person” in the Constitution, Justice Blackmun’s demand for “assurance” could, perhaps, be satisfied. Historical realism, however, unfortunately intrudes.
Caesar and God
In the centuries since 1776, it has long since become clear that our American legal culture has abandoned the “self-evident” truth of endowment by our Creator. More than one hundred years ago, Pope Leo XIII prophetically foresaw that abandonment and its cultural implications for the World-at-Large:
“There is no power but from God.” [wrote Pope Leo, citing Romans 13:1] . . . [Yet t]he authority of God is passed over in silence, just as if there were no God; or as if He cared nothing for human society; or as if men, in their individual capacity or bound together in social relations, owed nothing to God; or as if there could be a government of which the whole origin and power and authority did not reside in God Himself. Thus, as is evident, a state becomes nothing but a multitude, which is its own master and ruler.13
It must also be admitted that, even with developments within our American Judeo-Christian cultural heritage, we have ways of rationalizing our remarkably odd, dismissive attitude towards God. We raise the doctrine of “Separation of Church and State” (a phrase that appears nowhere in the text of the United States Constitution) to the status of a civil dogma.
Yet, in truth, didn’t Jesus Himself suggest the propriety of a separation between the things of the law and the things of God with His injunction, in Matthew 22:21, to render unto Caesar the things that are Caesar’s and to God the things that are God’s? Law belongs to Caesar; morality belongs to God. Most Americans, if asked, would readily accept that notion as both descriptive and normative of our present mode of social thought—indeed dogmatically so.
If we pause for a moment to think about it, however, we easily realize that the notion of the separation of law and morality—the one belonging to government (Caesar), the other to God—is routinely and consciously violated with our acquiescence every day in practice. We look to our legislatures, state and federal, to enact laws that comport with decent moral principles, and to avoid enacting immoral laws. We look to our courts to interpret laws consistently with decent moral principles.
Law making and law interpreting, however, are the business of Caesar, and morality is the business of God. The fact is that we let our lawmakers and our law interpreters routinely tamper with the business of God. Do we let God tamper with the business of our lawmakers or law interpreters?
The dilemma, scarcely ever faced and seldom recognized in our society, is that we accept a separation between the things of Caesar and the things of God—between law and morality—and yet we operate under a system that authorizes, indeed requires, Caesar to tamper with the business of God—morality—and forbids God to tamper with the business of Caesar. Our society’s current operative solution to that dilemma is to make both law and morality the business of Caesar and to wipe God out of the picture. We teach, study, practice, enact, and interpret law and the interactions between law and morality as if God were irrelevant—almost (as Pope Leo XIII put it) as if there were no God at all.
Roe v. Wade made obvious use of our cultural consignment of morality to “Caesar” when it engrafted onto the Constitution the right to kill God’s littlest children—children whom He knew before He formed them in their mothers’ wombs—children whose inmost being He created and whose bodies He knit together in their mothers’ wombs—children endowed by their Creator with the right to life.
Chief Justice Taney and Justice Blackmun
The Dred Scott decision was indefensibly wrongheaded. But what about Justice Blackmun’s denial of personhood to living, developing human babies in their mothers’ wombs?
Chief Justice Taney, in his opinion for the Court in the Dred Scott case, had to deal with the rights to life, liberty, and property guaranteed to persons in the Fifth Amendment. He did so by denying, or at best ignoring, the personhood of Dred Scott and all others of his race (along with their concomitant, constitutionally guaranteed right to liberty).
Justice Blackmun, in his majority opinion in Roe v. Wade, had to deal with the right to life, liberty, and property guaranteed to persons in the Fourteenth Amendment.14 He did so by denying the personhood of those prenatal human beings who are living, growing, and developing in their mothers’ wombs (along with their concomitant, constitutionally guaranteed right to life).
Both decisions seemed to admit a degree of “doubt” (honest or otherwise) as to the personhood of those affected by their rulings—the Dred Scott decision by referring to Blacks as “persons,” but denying to them the constitutional right to liberty guaranteed to “persons” under the Fifth Amendment—and the Roe v. Wade decision by hedging its analysis of the usages of the word “person” in the Constitution with a demand for “assurance” that constitutional usages of the word “person” have some specific “pre-natal application.”15
Are there any indications in the constitutional heritage of the United States of America that might shed some light on Justice Blackmun’s contrived quest for “assurance”? In what follows, we attempt an answer to Justice Blackmun’s unwarranted demand.
“Posterity” in the Preamble16
When Justice Blackmun, in his Roe v. Wade majority opinion, listed every usage of the word “person” in the Constitution (before concluding that none of those usages “indicates, with any assurance, that it has any possible prenatal application”17), he actually neglected one usage—a usage that happened, ironically, to be the one seized upon more than a century earlier by Chief Justice Taney in his opinion in the Dred Scott case, when he held that Black persons could not be considered as part of the “people” under the Constitution.
Justice Blackmun did indeed find every instance in which the exact word “person” appeared, but he neglected one variant of the plural form of that word “person”—the word “people.” The word “people” is found prominently in the well-known and oft-memorized Preamble of the Constitution:
We the People of the United States, in Order to . . . secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.18
The well-accepted case law on statutory preambles as well as the case law on the Preamble to the United States Constitution tells us that, although a preamble may not be resorted to as a source of statutory or constitutional rights, it may be resorted to as an aid in interpreting the meaning of rights that are expressly mentioned in the main body of the statute or Constitution—in the context of our inquiry, the meaning of the Rights to Life in the Fifth and Fourteenth Amendments.19
The Preamble to the United States Constitution thus contains a clear indication that those who framed the Constitution wanted it to be interpreted in a way that secured the “Blessings of Liberty” (which presumably would presuppose the blessing of life as one of those “Blessings”) not only to themselves but also to their yet-to-be-born Posterity. In other words, those who framed and those who adopted the Constitution seemed to be saying in the Preamble that if a question should arise as to whether a provision in the main text of the Constitution (the Rights to Life in the Fifth and Fourteenth Amendments, for example) should be interpreted in a way in which the interests of yet-to-be-born posterity would be taken protectively into account, or in a way in which those interests would be essentially ignored or even dismissed, the former interpretation should be the one adopted.
That, according to the Preamble of the Constitution, was the intent of the framers of the Constitution and the intent of those who adopted the Constitution, i.e., the People of the United States of America. The framers and those who adopted the Constitution intended to secure the “Blessings of Liberty,” including (so our argument goes) the right to life so that those blessings could be enjoyed, by yet-to-be-born “Posterity.”20 If that argument has any merit, then the very text of the Constitution itself may support the pro-life interpretive approach.
But to be practical and to “give the devil its due,” one must acknowledge that it would be disingenuous in the extreme to suggest that the word “Posterity” somehow refers exclusively to human fetuses. Quite obviously, the framers and adopters of the Constitution intended the word to refer to the generations yet to come—i.e., the descendants of the People of the United States of America (and probably not even in an exclusively biological sense). In that context, however, and even with that practical gloss of understanding, the “Blessings of Liberty” Clause represents a textually specific indication that the Constitution was intended, and presumably should be understood and interpreted, to secure “Blessings of Liberty” to descendants as yet unborn. Indeed, it is not disingenuous to suggest that the Constitution places two classes of people on a par in terms of entitlement to the “Blessings of Liberty,” i.e., “ourselves” and “our Posterity,” and the word “Posterity”21 is difficult to define except in terms of yet-to-be-born persons. To put the matter quite simply, from a textualist perspective, the conclusion seems inescapable that one of the purposes for the establishment of our Constitution, identified as such in the Preamble, is to secure the “Blessings of Liberty” to yet-to-beborn persons.
Here is the point: When Justice Blackmun wrote that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible prenatal application,”22 he was incorrect. He had neglected the usage of that variant plural of the word “person” that appears in the Preamble—the word “People”—and its association with “Posterity.” Justice Blackmun’s conclusion that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible prenatal application” is incomplete and therefore flawed—he did not analyze the implications of the inclusion of “Posterity” in the “We the People” formulation in the Preamble—and this harks back to his statement: “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.”23
In light of the case law on preambles in general and on the Preamble of the United States Constitution in particular, it would seem the “Blessings of Liberty to . . . our Posterity” clause may properly be accessed to shed light on the spirit and reason behind the Fifth and Fourteenth Amendments’ rights to life and liberty.24
The “Preamble” argument, then, would draw on the rules of interpretation that have evolved in the case law—the oft-used “spirit and reason” rule25 as well as the more contemporary purposive, narrative, or “evolutive” models of legislative interpretation.26 The argument might allow that the ordainers and establishers of the Constitution likely did not have the specific problem of the right to life of living-but-not-yet-born “Posterity” specifically in mind in drafting the Preamble, because they simply intended a reference to future generations in a generalized sense.
Even under that allowance, however, the Court, when faced with an interpretive question that could be resolved either by (1) taking the concept of “posterity” positively and protectively into account, that is, adopting an interpretation that is posterity-oriented, at least in part; or (2) ignoring or treating the concept of “posterity” negatively, would in light of the “Blessings of Liberty to . . . our Posterity” Clause ordinarily choose the former. As applied to the Roe decision, however, the argument carries some force. In Roe the Court was faced with at least two plausible choices. One of these—extending Fourteenth Amendment right-to-life coverage to living human fetuses— was posterity-oriented in that it would have taken the interests of a portion of posterity positively and protectively into account; the other choice—withholding Fourteenth Amendment right-to-life coverage from living human fetuses—could hardly be said to be posterity-oriented or to put “Posterity” on the same level as “selves,” in that it recognized no protectable interests of the portion of posterity in question (it did, however, recognize only a severely qualified and conditioned interest of the government in “potential” human life). The Court in Roe chose that latter interpretation, and (so the argument would go) by doing so chose an interpretation that was not in accord with the spirit and reason behind the Constitution as informed by the “Blessings of Liberty to . . . our Posterity” Clause.
Thomas Paine, the great pamphleteer of the American Revolution, the champion of Common Sense, and no stranger to the use of the word “posterity” (he used it ten times in his 1776 pamphlet Common Sense), once captured the sensibility behind the American people’s orientation towards their posterity, albeit in a different but nonetheless highly relevant context, when he retold the following anecdote:
I once felt that kind of anger, which a man ought to feel, against the mean principles that are held by the tories: A noted one, who kept a tavern at Amboy, was standing at his door, with as pretty a child in his hand, about eight or nine years old, as I ever saw, and after speaking his mind as freely as he thought was prudent, finished with this un fatherly expression, “Well, give me peace in my day.” Not a man lives on the continent but fully believes that a separation must some time or other finally take place, and a generous parent should have said, “If there must be trouble, let it be in my own day, that my child may have peace”; and this single reflection, well applied, is sufficient to awaken every man to duty.27
NOTES
1. 597 U. S. (2022), 142 S. Ct. 2228, 213 L. Ed. 545.
2. 410 U.S. 113 (1973).
3. 410 U.S. 113, 156-157 (1973) (emphasis added).
4. 597 U. S. (2022), 142 S. Ct. 2285, 216 L. Ed. 580.
5. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
6. The Fifth Amendment, which became a part of the Constitution in 1791, reads (in pertinent part): “No person shall . . . be deprived of life, liberty, or property, without due process of law ”
7. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857) (emphasis added).
8. Id., at 450, 451. [Emphasis added.]
9. 597 U. S. (2022), 142 S. Ct. 2285, 213 L. Ed. 606.
10. See the text accompanying footnote 4, supra.
11. See the text accompanying footnote 3, supra.
12. 410 U.S. 113, 157 (1973) (emphasis added).
13. Pope Leo XIII, Encyclical Immortale Dei, Nov. 1, 1885, ¶¶ 2, 25.
14. The Fourteenth Amendment, which became a part of the Constitution in reaction to the Dred Scott ruling, reads (in pertinent part): “No State shall deprive any person of life, liberty, or property, without due process of law ”
15. See quoted text accompanying footnote 12, supra. (Emphasis added.)
16. Much of the material in the following sections has appeared earlier in Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro-Life Position, 38 Am. J. Juris. 273, 275-76 (1993). See also Raymond B. Marcin, God’s Littlest Children and the Right to Live, 25 Journal of Contemporary Health Law & Policy 38 (Fall, 2008).
17. Roe, 410 U.S., at 157. [Emphasis added.]
18. U.S. Const. Preamble (emphasis added).
19. See Joseph Story, Commentaries on the Constitution of the United States §§ 218, 219, at 163-64 (abridged ed. 1833). See also 2A Norman J. Singer, Statutes and statutory Construction § 47.04, at 126-31 (4th ed. 1984). The first Justice Harlan applied this case law to the Blessings-of-Liberty Clause in the 1905 case of Jacobson v. Massachusetts:
Although one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom. 1 Story’s Const. sec. 462.
20. The argument that a fetus might be a member of “posterity” first appeared in James Joseph Lynch, Jr., “Abortion and Inalienable Rights in American Jurisprudence: A Prospective Policy” (Unpublished Lecture, 1987); referred to in James Joseph Lynch, Posterity: A Constitutional Peg for the Unborn, 40 Am. J. Juris. 401, 401 (1995). See also Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro-Life Position, 38 Am. J. Juris. 273, 293-94 (arguing that attentiveness to the interests of fetuses (yet-to-be-born “posterity”) is consistent with John Rawls’s “Justice Between Generations” in his A Theory of Justice 251-58 (Harvard Univ. Press, rev. ed. 1999) (1971)).
21. Webster’s Third New International Dictionary defines “posterity” as “the off-spring of one progenitor to the furthest generation” or “descendants,” and cites and quotes the “Blessings of Liberty” clause in the Preamble to the Constitution as its example. Webster’s Third New International Dictionary 1772 (1981).
22. Roe, 410 U.S., at 157.
23. Id., at 156-57.
24. It is, of course, true that neither the Fifth Amendment’s nor the Fourteenth Amendment’s Rightto-Life Clause was in the Constitution at the time of its adoption, but the amendatory process itself was laid out in the original text (in Article V), and thus it would be disingenuous to suggest that the Preamble expresses the spirit and reason behind the original body of the document, but not the spirit and reason behind later amendments, unless, of course, the later amendment can be understood as abrogating expressly or impliedly something in the original text.
25. See, e.g., Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).
26. See generally William N. Eskridge, Jr. & Philip P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 613-18 (1988); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L, Rev. 321 (1990); Dennis M. Patterson, Law’s Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937 (1990).
27. Thomas Paine, The Crisis, Number 1 (1776), reprinted in Thomas Paine, Political Writings 44, 45 (Bruce Kulick ed., 1989) (emphasis in original).
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Original Bio:
Raymond B. Marcin is a Professor of Law Emeritus at The Catholic University of America School of Law, where he taught Constitutional Law for four decades. Over the years, Professor Marcin has published several articles and books, including In Search of Schopenhauer’s Cat: Arthur Schopenhauer’s Quantum-Mystical Theory of Justice, and The American Constitutional Order: History, Cases, and Philosophy, 3rd Edition (co-authored with Douglas Kmiec, Stephen Presser, and John Eastman).
