Nathaniel Hawthorne wrote about adultery in The Scarlet Letter, but the “A” word these days is abortion. People often break off friendships, ostracize each other, and are intolerant of others having different opinions on this subject. This is sad because we can all learn from each other. The rest of this abortion essay is divided into two parts. First is a general discussion mentioning some legal issues. Then the legal issues will be discussed in more detail. Be aware that some of the following material is a personal opinion, although you will also find a lot of information (including links).
For thousands of years of western civilization, abortion was generally illegal after “quickening” (the point at about four months into the pregnancy when a baby kicks). This tradition can be traced back at least to the Ancient Greeks. In his book “Politics,” Aristotle said that “the line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive.”  Aristotle thus contended that the right to life generally accrues earlier than birth and irrespective of whether the baby is strong enough to survive after birth (i.e. viability). This broad standard of Aristotle leaves plenty of room for special rules and exceptions in order to allow some late abortions for the life of the mother, rape, incest, grave fetal deformity, maiming of the mother, et cetera. 
Prices start at $12
Prices start at $11
Prices start at $12
Quickening usually occurs at least two months before viability. Many people, including myself, advocate drawing a line between lawful and unlawful abortion no later than four months after conception but no earlier than the end of the embryonic stage. This happens to be what the vast majority of people generally believe.  Because the abortion pill RU486 is only effective on an embryo up until the ninth week of pregnancy, I have loudly supported its legalization for many years.
If we are to face facts, we must acknowledge that the human experience does not suddenly begin the moment each of us is born. All medical experience shows that a fetus has sensations (e.g. taste, hearing, touch, smell, and sight). More importantly, a fetus can think and has been proven to remember things (like the voice of its mother) after it is born. We are all human beings, and as such are not property.
Here are the numbers: over a million abortions are reported each year in the United States, and of these more than 12% occur after the thirteenth week. In other words, there are about 150,000-second trimester abortions in the United States each year. Common reasons for these delays in terminating a pregnancy include denial of pregnancy, menstrual irregularity preceding pregnancy, physician delay, ambivalence towards termination, major or minor fetal abnormality, and unexpected threats to maternal health or comfort.
It is sadly true that many women have been oppressed, forced into pregnancy, forced out of pregnancy, beaten, pushed around, and generally subjugated in a vast number of instances over the millennia. But does that entitle any woman to do the same thing to the most helpless and innocent among us?
If a father encourages or assists a mother to have an unjustifiably late abortion, then the father ought to be penalized as much as the mother for committing the crime, and perhaps more severely given that he will not suffer the abortion procedure itself. It is simply wrong to assert that abortion would be totally legal if men, as well as women, got pregnant; the fact is that many states today punish men who kill a pre-viability fetus with the same penalties given to murderers.
Should a woman be physically restrained so she will bring her advanced pregnancy to the point of viability? No, not in my opinion. Penalties can be imposed on such a woman even after allowing her to get a safe pre-viability abortion. In other words, it is possible to legalize the attempt but outlaw the thing attempted. This may sound perverse, but the law does things like this all the time. For example, in a “tort” action, you normally can’t sue someone for trying to do something hurtful, and can only sue for damages after the harm is done. Forced pregnancy is not something to which any civilized society should aspire, and doctors who perform pre-viability abortions generally ought to have immunity from punishment.
If pregnancy is biologically healthy, is well past the first trimester, and was voluntarily conceived, then there should be some sort of abortion penalty absent extraordinary circumstances. Hasn’t the mother chosen to run risks and allowed the fetus to reach this stage? And shouldn’t women be treated like any responsible person, and asked to live with some of their choices instead of trying to reverse them whenever it suits their fancy? I’m referring to a small minority of women who would do these awful things. But should that small minority of women, who would treat a fetus as they would treat a bag of trash, be immune from the law in the name of safeguarding other women from the oft-mentioned “slippery slope”?
Women have the right to vote, thank goodness, and women are not going to lose their rights and power as long as they vote. Speaking of which, here’s a hyperlink full of quotes from great women who won for all women the right to vote. People like Elizabeth Cady Stanton and Susan B. Anthony strongly believed that abortion, generally speaking, is a crime. As a personal matter, I believe that it is dangerous to tamper with the chain of human life and possibly snuff out a human soul even with respect to an embryo, but I want people to make their own choices and would not try to impose my view on anyone else with respect to embryos. In contrast, the medical evidence is vastly more persuasive that a second-trimester abortion actually has thinking and feeling human beings on the receiving end of the brutality.
This issue has a wide spectrum of nuances and variations and is not black and white. Nor is this is a fun issue to deal with, by any stretch of the imagination. Nevertheless, reasonable, moderate people should try to deal with this issue rather than duck it, or else the extremists win.
Discussion of Legal Issues
Being a lawyer, I am especially aware that this abortion issue has a lot of legal ramifications, in addition to the difficult moral questions. Consider the 1973 case of Roe v. Wade. Whether you agree with Roe v. Wade or not, I think we can all agree that Justice Blackmun did not do a 100% perfect job for his own cause or for the cause of eventual reconciliation.
First some legal history. For millennia, from Aristotle thru the English common law, thru the abortion laws of the nineteenth century, and thru most of the twentieth century, our legal tradition has made abortion consistently illegal after quickening.  This may seem like an ethnocentric statement, but it would be very difficult to operate our legal system based upon more than one chain of precedent (imagine the chaos that would ensue if the 19th-century court decisions of Persia, Greece, or Italy carried as much weight in the United States today as the 19th-century court decisions of the U.S. Supreme Court). Sometimes, in our legal tradition, abortion was actively prevented before the fact, and sometimes a penalty was instead imposed after the fact.
It would not have been legally outrageous for a state legislature in 1973 to have made post-quickening abortions legal, but it surely was outrageous for a court of law to have done so against the obvious wishes of the people who wrote the Constitution and laws that the Roe Court relied upon in 1973.
A basic tenet of our legal system is that “the intention of the lawgiver is the law” as Lincoln said in his first inaugural address. People can disagree about what the lawmakers intended, and they can disagree about how much flexibility the lawmakers intended for us to have in interpreting the laws and the Constitution. But it should be manifestly obvious that courts of law must not be free to make up their own definitions for words used in the Constitution if those new definitions fly in the face of everything we know about the Framers of the Constitution. Unfortunately, the Roe Court departed dramatically from this bedrock principle of the intention of the lawgiver being the law, and we are all the poorer for it. As discussed below, the Roe Court completely redefined the words “due process” beyond anything recognizable to the people who wrote and amended the Constitution, and the Roe Court furthermore held the common law unconstitutional as regards abortion. George Washington said it well in his Farewell Address when he said this:
“If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no changes by usurpation; for though this, in one instance, maybe the instrument of good, it is the customary weapon by which free governments are destroyed.”
It may well be that the Eighth Amendment protects a woman from being forced to continue a pregnancy against her will (see Planned Parenthood v. Danforth). The Eighth Amendment, as you may know, prohibits the federal government from inflicting cruel and unusual punishment. Instead of taking this legal avenue, the Court in Roe v. Wade took a different and much more dubious route.
What the Roe Court did was to say that the “due process clause” of the Fourteenth Amendment (the 14th Amendment went into force in 1868) forbids a state from penalizing a woman for aborting a nonviable fetus. Incidentally, the Fifth Amendment says the federal government may not violate due process, whereas the Fourteenth Amendment says that the state governments may not do so; both the Fifth and Fourteenth Amendments prohibit the government from depriving people of “life, liberty, or property, without due process of law.” Aside from the significant fact that the America of 1868 clearly would never have intended that the Fourteenth Amendment produce such a result, based on the abortion laws then in force, there are various other cogent reasons for questioning the wisdom of Roe v. Wade.
As a matter of plain English, it is evident that due “process” is supposed to be a guarantee of procedural rights rather than substantive rights. Sir Edward Coke, a great 17th-century English commentator on the law, wrote that “due process of law” means the same thing as “the law of the land” in the Magna Carta. Thus, the due process guarantees of the Fifth and Fourteenth Amendments are aimed at prohibiting deprivation of life, liberty, or property without authority from the “law of the land.” When a legislature enacts the “law of the land,” the due process requirement is not violated. But, when a court or other government official deprives someone of life, liberty, or property without authority from the “law of the land” then due process is violated. This is the essence of due process; due process simply refers to the process which is due to each of us according to the law of the land, and due process includes access to courts of justice when there is controversy as to what the law means.
There is every reason to believe that the people who wrote the 14th Amendment intended that “due process” have the same definition as the same words in the Fifth Amendment. Likewise, there is every reason to believe that the people who wrote the Fifth Amendment intended that “due process of law” be synonymous with “the law of the land” in the original (unamended) Constitution.
Article VI of the Constitution explicitly says that the Constitution and the laws of the United States made in pursuance thereof “shall be the supreme law of the land,” and this quoted phrase has never limited the types of laws that Congress can make. Thus, the Constitution’s guarantees of due process are satisfied whenever someone is deprived of life, liberty, or property by a process conforming to laws passed by Congress and conforming to the Constitution itself. This “due process of law” principle is now fashionably known as “procedural due process,” in order to make room for that most awkward creature called “substantive due process” which is directly aimed at controlling Congress and the state legislatures.
The great Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis were once persuaded that the Constitution’s due process requirements are inapplicable to substantive law, but they later changed their minds (see Whitney v. California). Holmes and Brandeis subsequently admitted to “more than anxiety” about that change of mind (see Baldwin v. Missouri). The great Supreme Court Justice Hugo Black had the same view of “due process” and “law of the land” to which I subscribe, and Justice Black never accepted the concept of substantive due process (see Black’s dissent in In Re Winship).
Even if you deny that substantive due process is an oxymoron, at least there should be some logical limit to this notion so that it will not be a blank check for the courts to interpret however they see fit. Judges, after all, are often unelected, serve for life, and are susceptible to the lust for power and greatness like anyone else (present company excepted, of course). One logical limit to substantive due process, initiated early in the twentieth century, was that it extends only so far as to bar states from violating enumerated rights already protected from federal intrusion by the Bill of Rights (by itself, the Bill of Rights does not restrict the states, as discussed in the 1833 case of Barron v. Baltimore).
An even better and much more straightforward way to apply the Bill of Rights to the states would be by applying the “privileges and immunities” clause of the 14th amendment, as the framers of the 14th Amendment intended would happen. Justice Black was one of several justices who espoused the limited view of the 14th amendment, and he persuasively opposed the idea that the 14th amendment covers substantive issues not addressed by the Bill of Rights or by Congress. Justice Black well knew the abuses to which the oxymoronic doctrine of substantive due process could be put, and had been put.
The substantive due process doctrine was first applied by the U.S. Supreme Court in the infamous Dred Scott decision. That opinion was probably the most heinous opinion ever issued by the high court, doing great injustice to African Americans and contributing to the onset of the Civil War. The unlimited substantive due process doctrine was revived early in the twentieth century by a Supreme Court opposed to federal interference in commercial matters, and the Court’s decision in Lochner v. New York led to other decisions which crippled the federal government’s ability to prevent or remedy the Great Depression.
That situation only improved after President Franklin Roosevelt threatened to expand the number of Justices on the Supreme Court (“court-packing”). Nowadays, a virtually unlimited doctrine of substantive due process is being used a third time, to alter the course and sweep of American history, and to prolong a tragic controversy that should properly be worked out primarily through the legislative process in which women are entitled by law and by natural right to fully participate. The concept that Congress and the state legislatures should be trusted with the authority to penalize some pre-viability abortions is no more unrealistic than the mantra that every woman will consult her conscience, her priest, her doctor, and her God before having an abortion.
If you have plowed all the way to this point of my little rant, you may be thinking that, if you limit the 14th amendment to the incorporation of rights enumerated in the Constitution, then you can still justify Roe v. Wade on the basis that anti-abortion laws violate a “right to privacy” implicitly embodied in the Bill of Rights. The majority opinion in Roe v. Wade did discuss a right to privacy but grounded the privacy right entirely in the Fourteenth Amendment’s due process clause, and Justice Blackmun chose not to rely on the Ninth Amendment or on any other part of the Bill of Rights. The theory that the Bill of Rights protects a sweeping right to privacy was pioneered by Supreme Court Justice William O. Douglas, and that theory deserves a few words, even though it was not relied upon by the majority opinion in Roe v. Wade.
If the Framers of the Bill of Rights had wanted to enshrine an expansive right to “privacy” or “personal autonomy”, they could have used such words in the Bill of Rights, but they instead purposely protected privacy rights in very specific and defined ways.  For good reason. Crimes committed to private can be just as awful, just as worthy of punishment and condemnation, as crimes committed in public. Child abuse, spousal abuse, and crimes are usually committed by cowards under cover of privacy, and there is absolutely no way that I will ever defend the idea that those creeps are completely protected by the Bill of Rights. (Likewise, almost every crime begins with a private decision in someone’s mind, but that fact should not cause us to legalize those crimes.) We have laws that boss men around in all kinds of intimate ways, and women should not be exempt from these types of laws so that they will be the only gender with complete control over their private matters.
In my view, the courts ought to stop trying to usurp this type of legal power which actually belongs to elected representatives. Even if the Bill of Rights did expansively protect privacy, it seems pretty clear that aborting a biologically healthy second-trimester pregnancy in a clinic or hospital is not an entirely private matter, seeing as how medical professionals are involved, an exchange of money is required, travel to and from the clinic or hospital is necessary, insurance company employees must be notified, and of course, there is also a nonconsenting victim.
Under the Fourteenth Amendment, Congress has always had the power to enforce the due process clause by enacting appropriate legislation, but congressional toleration of state laws has not received any deference whatsoever from the Supreme Court. Nor has the Supreme Court shown any patience with the state legislatures. Any number of “substantive due process” cases that have come before the Supreme Court would have been ironed out legislatively but for the Court’s unnecessary intervention, an example being Griswold v. Connecticut. In Griswold, the Connecticut House of Representatives had approved a bill that would have achieved the Supreme Court’s desired result of legalizing contraceptives, but action by the Connecticut Senate was pre-empted by the Court’s opinion.
Even if the Connecticut House and Senate had decided to maintain a ban on contraceptives, the U.S. Congress could have overturned such a ban by using the federal power to regulate interstate commerce (just as the federal government is today regulating the use of RU486). Likewise, in the abortion controversy, we have a Supreme Court that apparently feels duty-bound to defy Congress, the state legislatures, consistent public opinion, the ancient common law, the clearly expressed intentions of the Constitution’s framers, the text and structure of the Constitution itself, and even the combined weight of all these factors. This is not a showcase of constitutionalism.
If Roe v. Wade continues to stand unaltered, then the federal government and the state governments will be unable to impose even the slightest penalty for any pre-viability abortion. When a woman decides to have an abortion for the most frivolous of reasons, then a five-month-old fetus can be torn apart limb from limb, without anesthesia, with as much force and efficiency as modern technology can muster against a completely defenseless victim. This casual slaughter is happening every day without the slightest penalty, not even the penalty one incurs for littering or jaywalking. It is said that the government should not intrude into such a private domain, but that is exactly what the Supreme Court is doing by denying recourse to a law-abiding father who would act on behalf of that five-month-old fetus, and what the Supreme Court is doing by authorizing the invasion of the most private sanctuary on Earth.
This issue is not black and white (as emphasized here), which is why we need abortion statutes that can be amended as we discover flaws in those statutes. We do not need the U.S. Supreme Court to rashly interfere with the legislative process, and, in so doing, dare future Supreme Court Justices to meddle with the important principle of Stare Decisis (according to which courts are reluctant to overturn or amend previous court decisions). We now have a highly and increasingly politicized Supreme Court that is, unfortunately, polarizing the abortion issue with every new opinion it issues. 
The Supreme Court says pre-viability second-trimester abortions must be permitted for any trivial reason whatsoever, without the slightest post-abortion penalty whatsoever on either parent, and that’s plain wrong in my view in addition to being a bad interpretation of the law. Nobody can say for sure what a fetus goes through during a first, second, or even a third-trimester abortion because a fetus cannot speak to us, but certainly understanding English should not determine whether someone is entitled to human rights. As far as the real objective truth of second and third-trimester abortion is concerned, it is very reasonable based upon all the medical evidence to assume that there are real, helpless, innocent, live, suffering human victims.
 If you read Aristotle’s Politics, you’ll see that he advocated a very active role for the state in regulating procreation, even to the extent of requiring mandatory early-term abortion if the state becomes overpopulated (this is not something that I am supporting!). It is thus very apparent that Aristotle recognized the right to life of a fetus after the first trimester, even against the power of an intrusive state, against the pressures of overpopulation, and against the desire of a mother to get an abortion. Aristotle had no means to detect sensation and life, and thus to ascertain the line between lawful and unlawful abortion, except by examining fetal movement. He wrote as follows in his History of Animals:
“In the case of male children the first movement usually occurs on the right-hand side of the womb and about the fortieth day, but if the child is a female then on the left-hand side and about the ninetieth day. However, we must by no means assume this to be an accurate statement of fact, for there are many exceptions, in which the movement is manifested on the right-hand side through a female child becoming, and on the left-hand side through the infant is a male. And in short, these and all suchlike phenomena are usually subject to differences that may be summed up as differences of degree.”
Incidentally, biologists now know with certainty that a fetus of either gender actively moves around and kicks after ninety days (i.e. three months) even if the mother does not feel it until later. Over the centuries, Aristotle’s standards were applied by penalizing abortions that occur after the mother distinctly feels fetal movement (at around four months), and this point came to be called “quickening.” Henry Bracton wrote, in his thirteenth-century work The Laws and Customs of England, that:
“If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide.”
By the seventeenth century, the common law penalty had relaxed somewhat, and abortion after quickening was sometimes considered a misdemeanor. Sir Edward Coke wrote (as quoted in Keeler v. Superior Court):
“If a woman is quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the child dieth in her body and she is delivered of a dead child, this is a great misprision [i.e., misdemeanor], and no murder; but if the child be born alive and dyeth of the potion, battery, or other cause, this is a murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.”
This remained the common law through the eighteenth century. Blackstone wrote essentially the same thing in 1765 (again, as quoted in Keeler v. Superior Court):
“[If] a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”
The quickening standard was ultimately codified in England in 1803 and later in many of the American states. The common law ban on post-quickening abortion remained in effect until it was continued by statute. Justice Blackmun asserted in Roe v. Wade that “it now appears [s] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus” (compare Justice Douglas’ remarks at note four below). Later, in Planned Parenthood v. Casey, four Supreme Court Justices went uncontradicted (even by Justice Blackmun) when they correctly stated that “The common law which we inherited from England made abortion after ‘quickening’ an offense.”
 It’s easy to get tangled up in the issue of whether an abortion should always be legal when maternal health is at risk. Someone who wants to weaken all abortion regulation can argue that a maternal headache (or a maternal bout of depression) justifies any abortion at any time, or likewise can argue that, although giving birth would be safe for the mother, an abortion would be safer. This is why, in my view, abortion regulations should be drawn up with health exceptions that are specific, and many states have already done so with respect to post-viability abortions.
Mental health exceptions are especially problematic because mental disorders are so frequently subjective, or difficult to diagnose, or unverifiable by objective evidence. The best way to deal with all of these questions related to maternal “health” would be legislative; Congress or the state legislatures can explore and investigate many different scenarios beyond one single woman’s particular case, can amend statutes that turn out to be flawed, and can respond to the “reality check” provided by constituents. As far as rape justifying late abortions is concerned, the legal burden of proving that a woman was raped should never be the woman’s burden; rather the government should have the burden of proving what actually happened (provided that the government is given the authority necessary to conduct a meaningful investigation).
 The vast majority of Americans have consistently believed that abortion, generally speaking, should be legal in the first trimester and illegal in the second trimester. Poll data proves that this is true. See, for example, the Gallup Poll which gives the following results:
1] Do you think abortion should generally be legal or generally illegal during the first three months of pregnancy?
Should be legal 65%, Should be illegal 31%, Depends on 2%, No opinion 2% (March, 2000)
Should be legal 64%, Should be illegal 30%, Depends on 4%, No opinion 2% (July, 1996)
2] Do you think abortion should generally be legal or generally illegal during the second three months of pregnancy?
Should be legal 24%, Should be illegal 69%, Depends 4%, No opinion 3% (March, 2000)
Should be legal 26%, Should be illegal 65%, Depends 7%, No opinion 2% (July, 1996)
3] Do you think abortion should generally be legal or generally illegal during the third three months of pregnancy?
Should be legal 8%, Should be illegal 86%, Depends 3%, No opinion 3% (March, 2000)
Should be legal 13%, Should be illegal 82%, Depends 3%, No opinion 2% (July, 1996)
 Some of this history is described at footnote  supra. Regarding quickening, the concurring opinion of Justice Douglas in Roe v. Wade stated that “a rightful concern of society [is] the life of the fetus after quickening” (this concurring opinion of Justice Douglas Douglas was technically included in the case Doe v. Bolton instead of the companion case Roe v. Wade). Despite the concerns of Justice Douglas, Justice Blackmun’s opinion in Roe v. Wade dismissed the ancient quickening standard and instead held that “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability.” Ever since Roe v. Wade, the Supreme Court has ignored the standard discussed by Justice Douglas and consistently upheld the viability standard. Most recently, in Stenberg v. Carhart, the Court again held that “before viability … the woman has a right to choose to terminate her pregnancy.”
The quickening standard may not be perfectly tailored to modern medical science (e.g. we now know that quickening is perceived later in pregnancy for overweight women), but the quickening standard certainly has a much firmer legal history than the viability standard, it measures sensation and life with more accuracy than the viability standard, and it would limit abortions when an unborn baby is highly developed and alive. It should be noted that legal dictionaries have various different definitions of quickening, and sometimes the definition involves fetal movement regardless of whether the movement is perceived by the mother (e.g. see Barron’s Law Dictionary by Steven Gifis, c. 1984).
Likewise, the words “quick with child” are sometimes defined in different ways (e.g. see Black’s Law Dictionary, c. 1979, which defines this term as “having conceived,” whereas English law recognized that pregnancy does not necessarily imply being “quick with child”).
 The Magna Carta stated that “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed–nor will we go upon or send upon him–save by the lawful judgment of his peers or by the law of the land.” Lord Coke, citing and commenting on the Magna Carta, said, “no man shall be disseized, &c. unless it is by the lawful judgment, that is, the verdict of equals, or by the law of the land, that is, (to speak it once for all,) by the due course and process of law.” This famous passage from Coke appears in several Supreme Court cases (e.g. see Konigsberg v. State Bar, Hovey v. Eliott, Trustees of Dartmouth v. Woodward, and Hurtado v. California).
It has long been established that the phrases “by due process of law” and “by the law of the land” are constitutionally synonymous, and the Supreme Court has repeatedly said so (e.g. shortly after ratification of the 14th amendment, the Court held in Walker v. Sauvinet that “Due process of law processes due according to the law of the land,” exactly as it had held 20 years earlier in Murray v. Hoboken Land).
Indeed, when the states proposed a Bill of Rights in 1788, Virginia proposed the “law of the land” version and New York proposed the “due process of law” version. Even if we suppose that there is some meaningful difference between the prevailing New York requirement and the rejected Virginia requirement, still the New York requirement is by its own terms inapplicable to legislation. Alexander Hamilton of New York stated that “the words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature” (emphasis added). Hamilton was discussing New York’s constitution and bill of rights, which said that citizens could not be deprived of their various constitutional rights “but by” due process of law (the due process clauses of the U.S. Constitution use the word “without” instead of “but by” or “unless by”).
 If “law of the land” in the Constitution’s Supremacy Clause (that’s the clause stating that federal law “shall be the supreme law of the land”) is interpreted as limiting the types of laws that Congress can make, then numerous other parts of the Constitution become completely and needlessly superfluous, including, for example, the prohibition against Bills of Attainder in Article I, Section 9, Clause 3 (a “bill of attainder” inflicts punishment against particularly specified people without granting them a trial).
It is true that Daniel Webster once argued, in Trustees of Dartmouth v. Woodward, that the term “law of the land” does have a very specialized meaning:
“Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land.”
However, it is important to bear in mind that Webster was discussing the words “law of the land” as they appeared in a state constitution, and not as used in the federal constitution. In any event, the U.S. Supreme Court decided not to address this argument by Webster, because the interpretation of a state constitution is best done by a state court.
Note that Alexander Hamilton (in Federalist #33) emphasized in 1788 that “the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of the federal government” (emphasis added).
The words “law of the land” in the Constitution thus do not have some greater meaning entitling the judiciary to strike down laws inconsistent with that greater meaning. Interestingly, Hamilton had articulated a slightly different view in 1787, when he indicated that “law of the land” means presentment and indictment, and process of outlawry, as contradistinguished from trial by jury, but even Hamilton’s 1787 interpretation places no substantive limits on the content of the law. Likewise, Blackstone wrote the following in 1765:
“It was endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by the authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by Magna Carta, that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. . .”
I argue that it is wrong to consider the 14th Amendment in isolation, without looking at the Fifth Amendment, the Supremacy Clause, and the other related parts of the Constitution. In stark contrast, take a look at Chicago, Burlington & Quincy v. Chicago regarding just compensation for private property taken by a state for public use; the Supreme Court completely ignored not just the Supremacy Clause but also the Fifth Amendment’s Takings and Due Process clauses as well! In this respect, a somewhat more reasoned opinion was rendered by the Court in Hurtado v. California regarding the due process:
“We are to construe this phrase in the fourteenth amendment by the usus loquendi of the constitution itself. The same words are contained in the fifth amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that ‘no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself.’
It then immediately adds: ‘nor be deprived of life, liberty, or property without due process of law.’ According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without a clear reason to the contrary, that any part of this most important amendment is superfluous.
The natural and obvious inference is that, in the sense of the constitution, ‘due process of law’ was not meant or intended to include, ex vi termini, the institution, and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent . . .”
As far as I am aware, no Supreme Court decision, apart from the dissent in Adamson v. California, has bothered to seriously examine the intent of the people who wrote the Fourteenth Amendment. In introducing the proposed Fourteenth Amendment to the House on May 8, 1866, Mr. Stevens speaking for the Committee on Reconstruction said quite clearly that, “The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the ‘equal’ protection of the laws” (emphasis added).
 The Fourteenth Amendment is not a model of clarity, and it is likely that various aspects of it were perceived differently by the various different state and federal legislators who adopted it. It is sometimes argued that, if the Privileges and Immunities Clause of the 14th Amendment (PIC14) truly incorporated the enumerated rights protected from federal intrusion by Amendments One thru Eight, then it would follow that the Due Process Clause of the 14th Amendment would be superfluous in view of the Fifth Amendment’s Due Process Clause. The flaw in this argument is that PIC14 applies only to “citizens” whereas the Due Process Clause of the 14th Amendment applies to “any person” including non-citizens.
In other words, the authors of the 14th Amendment may have wanted every state to be automatically bound by the Bill of Rights and other federal constitutional protections with respect to United States citizens, and for every state to also provide due process to foreigners. This aspect of the Fourteenth Amendment would have been much more clear if the word “other” had been used (i.e. “deprive any other person” instead of “deprive any person”), and this whole matter would have been even more obvious if the amendment had said “deprive any further persons” instead of “deprive any person.”
As discussed later in this footnote, it is very possible that the people who framed and ratified the 14th Amendment intended for Congress to have discretion in deciding whether and to what extent the Bill of Rights would be enforced against the states. The U.S. Supreme Court has said that Section 5 of the 14th Amendment (giving Congress enforcement power) is remedial rather than substantive, and therefore does not allow Congress to alter the scope of the rest of the amendment (see City of Boerne v. Flores).
However, at least some of the authors of the 14th Amendment understood Section 5 of that amendment as an exclusive means of enforcing Section 1, so that no state would be compelled to do anything without a congressional enforcing statute subject to judicial review (see Puerto Rico v. Branstad confirming that various provisions of the Constitution were not viewed as self-enforcing back in the 1800s). This idea that a statute would be necessary to give meaning to Section 1 of the Fourteenth Amendment is especially applicable to the Privileges and Immunities Clause of the Fourteenth Amendment, because, as discussed below, it was modeled after the Privileges and Immunities Clause of Article IV which has a meaning that expands and contracts to depend upon the enactment of state statutes.
The Privileges and Immunities Clause of the 14th Amendment (PIC14) has pretty much been a dead letter since the 1870s. However, it is interesting that the Supreme Court has recently applied PIC14 for the first time in decades, in the case of Saenz v. Roe.
The words “privileges and immunities” in the Constitution have often been understood to fall within the group of rights that are “fundamental” provided that those rights have “at all times” been enjoyed by the citizenry in the United States (see the 1823 case of Corfield v. Coryell decided by Justice Bushrod Washington). Extensive historical evidence about the intention underlying the Fourteenth Amendment can be found in Adamson v. California, although Adamson was not mentioned in the recent Saenz decision. From the discussion in Justice Black’s dissent in Adamson, it is pretty clear that at least some of the authors of the 14th Amendment intended that PIC14 should incorporate the Bill of Rights, so as to apply the Bill of Rights to the states as well as to the federal government.
Both before and after the 14th Amendment’s adoption in 1868, the prevailing view has been that the Privileges and Immunities Clause of Article IV (PIC4) “does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities,” as Justice Curtis put it in his Dred Scott dissent. Indeed, it is implicit in the opinion of Chief Justice Marshall in Barron v. Baltimore that PIC4 need not include the protections of the Bill of Rights. In other words, the consensus view prior to 1868 was that, if any citizen of a state “goes into another State, the Constitution clothes him, as to the rights of the person, with all the privileges and immunities which belong to citizens of the State,” in the words of Chief Justice Taney’s opinion in Dred Scott.
Justice Miller restated this consensus view of PIC4 in the Slaughter-House Cases, saying that PIC4 provided “no security for the citizen of the State in which [rights] were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” Likewise, Justice Field’s Slaughter-House dissent opined that “under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States . . .”
Although some of the framers of PIC14 believed that “privileges and immunities” in Article IV necessarily included the rights specified in the federal Bill of Rights, that view was emphatically not the prevailing view either before or after the 14th Amendment was created in 1868. Conversely, although some of the framers of PIC14 believed that the privileges and immunities of Article IV were strictly limited to fundamental and ancient rights (as discussed in Corfield v. Coryell), that was not the prevailing view either, in the sense that equal rights for out-of-state visitors were never limited to a narrow range of fundamental and ancient rights.
The plain language of PIC14 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) does not define what those PIC14 privileges or immunities are. Justice Field’s Slaughter-House dissent opined that “The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness. . .” But, it seems unlikely that the people who framed and adopted the 14th Amendment intended to give the Courts or Congress sweeping power to strike down all state laws that make people unhappy.
Arguably, the privileges and immunities of PIC14 are in one or both of the following two categories:  whatever privileges or immunities the federal government is forbidden to violate, or  whatever privileges and immunities the Supreme Court and Congress (or the Supreme Court alone) feel are appropriate to safeguard against violation by state governments. It has been argued that category  was undoubtedly not intended, for otherwise, the federal government would have obtained almost unlimited power to dictate to the states. It seems highly probable that at least category  was intended by some of the 14th Amendment’s framers, which would mean that PIC14 protects rights of person and property which the Constitution already has safeguarded against federal abridgment.
This conclusion has been aptly called the “Lost Compromise.” In 1869, the year after the 14th Amendment took effect, the Court in Twitchell v. Commonwealth held that the Bill of Rights is not applicable to the states; the 14th Amendment was not addressed in Twitchell nor apparently did the Court ask counsel to address that Amendment and Twitchell were subsequently cited and endorsed (in dicta) by the Court in Justices v. Murray, 76 U.S. 274 (1869) which again did not mention the 14th Amendment. Both of these cases (Twitchell and Justices v. Murray) were apparently unanimous, and in neither case did the Justices see any relevance in the 14th Amendment. In view of these two decisions rendered immediately after the 14th Amendment was adopted, it would be reasonable to infer that the protections of the Bill of Rights were not commonly understood as having been given to a state’s citizens by PIC14, at least not without legislative action by Congress.
The idea that congressional action may be necessary to enforce the Bill of Rights against the states is in keeping with the spirit of PIC4 which everyone agrees extends protection to out-of-state visitors only when a state confers rights on its own citizens either by a state statute or the state constitution. In other words, it would be reasonable to assume that PIC14 was not meant to be enforced without authorization from Congress. If PIC14 has little or no substantive meaning without congressional action, then PIC14 is very much like its neighbors in the same sentence of the Fourteenth Amendment; the Supreme Court has long recognized that the Equal Protection Clause “creates no substantive rights” (see Vacco v. Quill), and likewise, a significant minority of the Supreme Court has long recognized that “substantive due process” is an “oxymoron” (see the dissent in the United States v. Carlton).
Although this footnote is getting pretty long, I want to mention that Congress exerted its power to enforce PIC14 in the Civil Rights Act of 1871 by forbidding anyone to “conspire together . . . for the purpose, . . . of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws.” Congress thus distinguished between laws that provide protection on the one hand, and laws that guarantee privileges or immunities on the other hand, and Congress wanted both types of laws to be applied equally to all citizens of the United States. This congressional interpretation is very much consistent with a legal history leading up to the 14th Amendment; the Civil Rights Act of 1866 did not seek to confer any absolute rights, but merely the “same right” on all people in every state and territory, and President Andrew Johnson’s unsuccessful veto message described that Act as conferring on everyone “all the privileges and immunities of citizens of the United States.”
It thus appears clear that PIC14 was primarily intended as a type of equality provision that would complement the Equal Protection Clause. The equality aspects of PIC14 and the Equal Protection Clause should surely be enforced by the courts with respect to citizens who are similarly situated. For citizens who are not situated in the same state, the issue is more difficult, and the case for discretionary congressional enforcement stronger. An argument can be made that Congress ought to have at least some discretion to ensure that people living in the fifty states have the same basic rights vis a vis their local governments as people living in territories under the direct authority of the federal government.
 In Adamson v. California, Justice Black provides extensive historical material about the framing of the 14th amendment. Justices Black and Douglas also expressed the following view about “substantive due process”:
“to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of ‘natural law’ deemed to be above and undefined by the Constitution is another. ‘In the one instance, courts proceeding within clearly marked constitutional boundaries seek to execute policies written into the Constitution: in the other, they roam at will in the limitless area of their own beliefs as to the reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people.’ Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575.”
Adamson was decided in 1947. Justice Black reiterated and expanded upon these views much later in his dissent in the 1970 case of In Re Winship.
 Here’s an excerpt from the dissent of Supreme Court Justice Benjamin Robbins Curtis in the Dred Scott case:
“[t]he position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, [does not] bear examination. It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter.
It existed in every political community in America in 1787 when the ordinance prohibiting slavery north and west of Ohio was passed. And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna Charta, the ordinance of 1787 also violated it; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation?
The people of the States had conferred no such power. I think I may at least say if Congress did then violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding States which have enacted the same prohibition? As early as October 1778, a law was passed in Virginia, that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free.”
It is interesting to compare this dissent of Justice Curtis in Dred Scott to the very similar dissent of Justice Rehnquist in Roe v. Wade, in which Rehnquist cited the abortion laws in force when the Fourteenth Amendment was created. It is also interesting to note that Justice Curtis previously wrote an opinion for the Court dealing with Fifth Amendment due process, in Murray v. Hoboken Land. The Murray Court correctly reiterated Lord Coke’s view that “The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta.” But then the Murray Court went further, saying that the Fifth Amendment’s Due Process Clause is:
“a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this, the answer must be twofold. We must examine the constitution itself, to see whether this process is in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”
This two-prong test of Justice Curtis is of very limited use and has long since been discarded (the Murray Court itself decided not to strike down any legislation based upon this test). Regarding the first prong of this two-prong test, if a process enacted by Congress violates some provision of the Constitution apart from the Fifth Amendment’s Due Process Clause, then Congress is in violation of the Constitution regardless of whether due process is violated, so this first prong of the Murray test will always be moot. Regarding the second prong, if a process enacted by Congress violates settled usage prior to the eighteenth century then certainly it should not be doomed to unconstitutionality, or else Congress could never write innovative laws that bear no resemblance to eighteenth-century statutes.
The clearest evidence that this two-prong test has been discarded are the cases of Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court held that all of the common law penalties for pre-viability abortions violated due process (see footnote one above). Unfortunately, the Supreme Court has replaced the faulty two-prong test of Justice Curtis with a subjective test that conflicts even more egregiously with the intent of the Constitution’s framers. I entirely and emphatically agree with Justice Black who wrote (see the dissent in In Re Winship) that, “Mr. Justice Curtis . . . gave ‘due process of law’ an unjustifiably broad interpretation.
For me the only correct meaning of that phrase is that our Government must proceed according to the ‘law of the land’-that is, according to written constitutional and statutory provisions as interpreted by court decisions” (see discussion on “law of the land” at footnote six above). Historical factors are useful in understanding the intent of lawmakers and in establishing judicial precedent, but as an independent test of constitutional “due process” they are of dubious value and legitimacy.
 The Fourth Amendment of the Constitution says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Even if you believe that the issue of abortion somehow fits into the scope of this great amendment, still the standard for governmental action is simply that it not be “unreasonable.” The Fourth Amendment does not require a “compelling state interest.” Even if the Constitution did require a compelling state interest, states certainly do have a compelling interest in protecting the frailest, the most helpless, and the most abused. Moreover, if the legislative process results in a strange compromise that only affords partial or incomplete protection to second or third-trimester fetuses, it would be unreasonable to expect a legislature to deal with this entire issue in one fell swoop.
 In Stenberg v. Carhart, Justice Breyer delivered the opinion of the Court. As discussed above, the vast majority of Americans believe abortion should generally be legal in the first trimester and illegal thereafter. Justice Breyer began the Carhart opinion by recognizing the extremists instead of the vast majority:
“We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with the least resources to undergo illegal abortions with the attendant risks of death and suffering.
Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.”
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