Editor in Chief, James Bopp (National Right to Life Counsel) leads with the following preface to Gregory J. Roden’s seminal article on Constitutional Personhood.
The featured article, by legal scholar Gregory J. Roden, discusses the
question whether unborn children are “persons” within the language and
meaning of the Fifth and Fourteenth Amendments. Because there is no
constitutional text explicitly holding unborn children to be, or not to be,
“persons,” his examination is founded on the historical understanding and
practice of the law, the structure of the Constitution, and the jurisprudence
of the Supreme Court.
In Roe v. Wade, the state of Texas argued that “the fetus is a ‘person’
within the language and meaning of the Fourteenth Amendment.” The
Supreme Court responded in its majority opinion that “[i]f 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.”
Unfortunately, the majority’s legal analysis arrived at the opposite
conclusion, “that the word ‘person,’ as used in the Fourteenth Amendment,
does not include the unborn.” It is the majority’s legal analysis that Mr.
Roden examines in fine detail.
First, Mr. Roden points out that the Constitution does not confer upon
the federal government the power to grant or deny “personhood” under the
Fourteenth Amendment. Rather, the power to recognize or deny unborn children as holders of certain statutory and common law rights and duties has historically been exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty.
Second, he demonstrates that, at the time Roe was decided, the states
had exercised this power and held unborn children to be persons under their
criminal, tort, and property law. Because of the unanimity of the states in
holding unborn children to be persons under criminal, tort, and property
law, Mr. Roden argues that the text of the Equal Protection Clause of the
Fourteenth Amendment compels federal protection of unborn children as
persons. Furthermore, he shows that to the extent the Court examined the
substantive law in these disciplines, its legal conclusions were not warranted.
Finally, Mr. Roden illustrates the inconsistency of federal statutory law
with Roe, in that it also treats unborn children as persons by recognizing
their eligibility for federal entitlements.
Due to the length of the featured article, no other material is included
in this edition.
James Bopp, Jr., J.D.
Read the entire article here: