The inalienable right to life possessed by every human being is present from the moment of initial formation, and all human beings shall be entitled to the equal protection of persons under the law.
Personhood and Ron Paul
Bill Fortenberry
We have received several requests for an endorsement of Mr. Paul's candidacy for president, and those submitting the requests have often been shocked that a pro-life organization is not willing to support the man who claims to be the most pro-life candidate in the race. We have put together this brief article to explain our position and perhaps help others in the pro-life community to better understand Mr. Paul's position.
According to his campaign website, Mr. Paul's position on abortion is that “The first thing we have to do is get the federal government out of it. We don’t need a federal abortion police. That’s the last thing that we need." That link also states that "Ron Paul believes that the ninth and tenth amendments to the U.S. Constitution do not grant the federal government any authority to legalize or ban abortion. Instead, it is up to the individual states to prohibit abortion." (http://www.ronpaul.com/on-the-issues/abortion/)
In a 2006 article on the topic of abortion, Mr. Paul stated that "Roe v. Wade was wrongly decided, but not because the Supreme Court presumed to legalize abortion rather than ban it. Roe was wrongly decided because abortion simply is not a constitutional issue. There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion ... So while Roe v. Wade is invalid, a federal law banning abortion across all 50 states would be equally invalid." (http://www.lewrockwell.com/paul/paul301.html)
Mr. Paul also demonstrated his adherence to this position by authoring the Sanctity of Life Act in 2009. That act was an attempt to prevent any federal court from ruling on the constitutionality of any law regarding abortion, but the second section of that act stated that the term "person" includes unborn children. (http://www.govtrack.us/congress/billtext.xpd?bill=h111-2533)
Now, if Mr. Paul truly believes that all unborn children are real persons and that they should be define as such under the law, then he cannot hold to his claim that abortion is not a constitutional issue. Even the Roe Court recognized that “If this suggestion of personhood is established ... the fetus’ right to life would then be guaranteed by the 14th Amendment.” (http://laws.findlaw.com/us/410/113.html) If the unborn child is a person with an unalienable right to life, then the security of that right becomes not just any federal issue but the supreme and foundational federal issue upon our nation was established.
The president is required by the Constitution to swear an oath to "preserve, protect and defend the Constitution of the United States." Mr. Paul cannot honestly take that oath while holding to the position that he currently holds on abortion, and I will not vote for a candidate who stands at odds with that oath.
According to his campaign website, Mr. Paul's position on abortion is that “The first thing we have to do is get the federal government out of it. We don’t need a federal abortion police. That’s the last thing that we need." That link also states that "Ron Paul believes that the ninth and tenth amendments to the U.S. Constitution do not grant the federal government any authority to legalize or ban abortion. Instead, it is up to the individual states to prohibit abortion." (http://www.ronpaul.com/on-the-issues/abortion/)
In a 2006 article on the topic of abortion, Mr. Paul stated that "Roe v. Wade was wrongly decided, but not because the Supreme Court presumed to legalize abortion rather than ban it. Roe was wrongly decided because abortion simply is not a constitutional issue. There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion ... So while Roe v. Wade is invalid, a federal law banning abortion across all 50 states would be equally invalid." (http://www.lewrockwell.com/paul/paul301.html)
Mr. Paul also demonstrated his adherence to this position by authoring the Sanctity of Life Act in 2009. That act was an attempt to prevent any federal court from ruling on the constitutionality of any law regarding abortion, but the second section of that act stated that the term "person" includes unborn children. (http://www.govtrack.us/congress/billtext.xpd?bill=h111-2533)
Now, if Mr. Paul truly believes that all unborn children are real persons and that they should be define as such under the law, then he cannot hold to his claim that abortion is not a constitutional issue. Even the Roe Court recognized that “If this suggestion of personhood is established ... the fetus’ right to life would then be guaranteed by the 14th Amendment.” (http://laws.findlaw.com/us/410/113.html) If the unborn child is a person with an unalienable right to life, then the security of that right becomes not just any federal issue but the supreme and foundational federal issue upon our nation was established.
The president is required by the Constitution to swear an oath to "preserve, protect and defend the Constitution of the United States." Mr. Paul cannot honestly take that oath while holding to the position that he currently holds on abortion, and I will not vote for a candidate who stands at odds with that oath.
_Here are Bill’s answers to the four most common responses that we received from the above article:
1) Murder is a crime within the jurisdiction of the state.
You are mistaken. The states have the responsibility for penalizing murderers, but it is the federal government which prevents murder itself from ever being legalized. In particular, it is the prohibition against the deprivation of life stated in the Fifth and Fourteenth Amendments of the Constitution of the United States which forbids any state from legalizing murder. If unborn children are actual persons as Mr. Paul claims, then these amendments apply equally to both the born and the unborn, and the states should be prohibited by the federal government from legalizing abortion.
2) The Tenth Amendment denies the federal government the authority to pass laws on abortion.
The Tenth Amendment states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Most people forget that there are two qualifications in this amendment. It does not just state that the "powers not delegated to the United States" which are reserved to the states. It also declares that the states cannot claim any powers which are prohibited to them by the Constitution.
The Fourteenth Amendment states in part that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
According to this amendment, the states are prohibited from depriving any person of life and from denying any person the equal protection of the laws. Mr. Paul has correctly stated that unborn children are persons under the law. That means that the states do not have the right to deny those unborn children the equal protection of the law nor do they have the right to deprive them of life without due process. Nor do the people have the right to make that decision individually, for the rights reserved to the people are subject to the same qualifications as the rights reserved to the states.
In sum, if the unborn child is a person, then his right to life is protected by the Constitution of the United States, and no state or individual has the authority to deny him that right.
3) Congress should revoke the Supreme Court's jurisdiction over cases on abortion laws.
Article III, Section 2 of the Constitution states in part that "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Notice that it is only "in all the other Cases before mentioned" that the jurisdiction of the Court can be limited by Congress. Those cases aforementioned are the ones listed in the first paragraph of Section 2. They are the cases in which the Supreme Court has appellate jurisdiction.
There is another category of cases, however, over which the Supreme Court has original jurisdiction. That category includes cases "in which a state shall be a party." Congress has no authority to limit the Supreme Court's jurisdiction over cases in this category. Therefore a suit brought against a state as a result of their laws on abortion must be heard by the Supreme Court regardless of any act of Congress to the contrary.
4) The Fourteenth Amendment only applies to those who have been born.
The distinction between the words "person" and "citizen" has a long history in American jurisprudence. The Supreme Court exemplified this distinction in Plyler v. Doe when it ruled that the use of the term "person" in the Fifth and Fourteenth Amendments guarantees certain rights to those who are within the borders of the United States but who are not yet citizens thereof.
"In concluding that 'all persons within the territory of the United States,' including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 238. Our cases applying the Equal Protection Clause reflect the same territorial theme."
In Wong Wing v. United States, Justice Field stated that “The term ‘person,’ used in the fifth amendment, is broad enough to include any and every human being within the jurisdiction of the republic.”
In fact, the very author of Section 1 of the Fourteenth Amendment, Congressman John Bingham, explained that "natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guarantied by the broad and comprehensive word 'person,' as contradistinguished from the limited term citizen—as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that 'no person shall be deprived of life, liberty, or property, but by due process of law; nor shall private property be taken without just compensation.'" (CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859))
And prior to the Fourteenth Amendment, Justice Marshall declared in United States v. Palmer that "The words 'any person or persons,' are broad enough to comprehend every human being."
The claim that only those who meet a certain part of the definition of a citizen can be considered as persons under the Fourteenth Amendment stands in direct contradiction to the precedent of the Court with one very notable exception. That one was the Dred Scott decision in which the Supreme Court infamously ruled that slaves were not to be considered people under the meaning of the Fifth Amendment. According to Justice Field's opinion in the Slaughter-House Cases:
"The Chief Justice, in that case [Dred Scott], and a majority of the court with him, held that the words ‘peoples of the United States’ and ‘citizens’ were synonymous terms; that the people of the respective States were parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought into this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution.”
Of course, we would both agree that the Dred Scott case was wrongfully decided. Therefore, we should also agree that the term "person" has a much more broad definition than the term "citizen," and perhaps you will agree with me in concluding that Justice Marshall is correct in that the word "person" in our Constitution is "broad enough to comprehend every human being" even if that human being happens to reside within the womb of another.
1) Murder is a crime within the jurisdiction of the state.
You are mistaken. The states have the responsibility for penalizing murderers, but it is the federal government which prevents murder itself from ever being legalized. In particular, it is the prohibition against the deprivation of life stated in the Fifth and Fourteenth Amendments of the Constitution of the United States which forbids any state from legalizing murder. If unborn children are actual persons as Mr. Paul claims, then these amendments apply equally to both the born and the unborn, and the states should be prohibited by the federal government from legalizing abortion.
2) The Tenth Amendment denies the federal government the authority to pass laws on abortion.
The Tenth Amendment states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Most people forget that there are two qualifications in this amendment. It does not just state that the "powers not delegated to the United States" which are reserved to the states. It also declares that the states cannot claim any powers which are prohibited to them by the Constitution.
The Fourteenth Amendment states in part that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
According to this amendment, the states are prohibited from depriving any person of life and from denying any person the equal protection of the laws. Mr. Paul has correctly stated that unborn children are persons under the law. That means that the states do not have the right to deny those unborn children the equal protection of the law nor do they have the right to deprive them of life without due process. Nor do the people have the right to make that decision individually, for the rights reserved to the people are subject to the same qualifications as the rights reserved to the states.
In sum, if the unborn child is a person, then his right to life is protected by the Constitution of the United States, and no state or individual has the authority to deny him that right.
3) Congress should revoke the Supreme Court's jurisdiction over cases on abortion laws.
Article III, Section 2 of the Constitution states in part that "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Notice that it is only "in all the other Cases before mentioned" that the jurisdiction of the Court can be limited by Congress. Those cases aforementioned are the ones listed in the first paragraph of Section 2. They are the cases in which the Supreme Court has appellate jurisdiction.
There is another category of cases, however, over which the Supreme Court has original jurisdiction. That category includes cases "in which a state shall be a party." Congress has no authority to limit the Supreme Court's jurisdiction over cases in this category. Therefore a suit brought against a state as a result of their laws on abortion must be heard by the Supreme Court regardless of any act of Congress to the contrary.
4) The Fourteenth Amendment only applies to those who have been born.
The distinction between the words "person" and "citizen" has a long history in American jurisprudence. The Supreme Court exemplified this distinction in Plyler v. Doe when it ruled that the use of the term "person" in the Fifth and Fourteenth Amendments guarantees certain rights to those who are within the borders of the United States but who are not yet citizens thereof.
"In concluding that 'all persons within the territory of the United States,' including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 238. Our cases applying the Equal Protection Clause reflect the same territorial theme."
In Wong Wing v. United States, Justice Field stated that “The term ‘person,’ used in the fifth amendment, is broad enough to include any and every human being within the jurisdiction of the republic.”
In fact, the very author of Section 1 of the Fourteenth Amendment, Congressman John Bingham, explained that "natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guarantied by the broad and comprehensive word 'person,' as contradistinguished from the limited term citizen—as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that 'no person shall be deprived of life, liberty, or property, but by due process of law; nor shall private property be taken without just compensation.'" (CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859))
And prior to the Fourteenth Amendment, Justice Marshall declared in United States v. Palmer that "The words 'any person or persons,' are broad enough to comprehend every human being."
The claim that only those who meet a certain part of the definition of a citizen can be considered as persons under the Fourteenth Amendment stands in direct contradiction to the precedent of the Court with one very notable exception. That one was the Dred Scott decision in which the Supreme Court infamously ruled that slaves were not to be considered people under the meaning of the Fifth Amendment. According to Justice Field's opinion in the Slaughter-House Cases:
"The Chief Justice, in that case [Dred Scott], and a majority of the court with him, held that the words ‘peoples of the United States’ and ‘citizens’ were synonymous terms; that the people of the respective States were parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought into this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution.”
Of course, we would both agree that the Dred Scott case was wrongfully decided. Therefore, we should also agree that the term "person" has a much more broad definition than the term "citizen," and perhaps you will agree with me in concluding that Justice Marshall is correct in that the word "person" in our Constitution is "broad enough to comprehend every human being" even if that human being happens to reside within the womb of another.