Article in Harvard Law Journal concludes: The preborn child is a constitutional person

By Calvin Freiburger | June 1, 2017 , 02:42pm

Pro-lifers and honest pro-abortion legal scholars agree that Roe v. Wade was wrongly decided. But just how wrong is it? Is it bad law solely because it declares a right to something the Constitution is silent about, or does its judicial malpractice run deeper?

I have long argued that legal abortion violates not only the spirit of the Constitution, but the text itself – specifically, that the Fourteenth Amendment’s guaranteed equal protection of all people’s right to life has always applied to the preborn. Now, The Stream reports that the “Harvard Journal of Law and Public Policy” has published an article written by Harvard law student (and former Live Action contributor) Josh Craddock that lays out the case in perhaps the most depth it’s ever received.

The first key point of Craddock’s work, critiquing the late, great Justice Antonin Scalia from the right, is an audacious undertaking, but here it’s warranted. You see, while Scalia was a committed originalist and clear opponent of Roe, he was also of the opinion that the Constitution is neutral toward abortion – that its use of the word “persons” “clearly means walking-around persons,” and therefore, states should be left free to set whatever abortion laws they want. Craddock notes several other pro-life judicial originalists who hold (or held) this view, though Scalia is the most recent and most revered modernly.

Craddock concedes that there is some basis for this thinking because “natural rights were not exhaustively enshrined in the federal Constitution” and “states have traditionally decided the question of personhood.” However, he rightfully maintains that a truly originalist answer to the question has to consider what the word “persons” was understood to mean when the Fourteenth Amendment was written and ratified.

He proceeds to explain that layman’s dictionaries treated the concepts of humanity and personhood interchangeably, and so did legal terminology – more explicitly so, in fact. As we’ve discussed in the past, Craddock notes that Blackstone expressly recognized that personhood and the right to life existed before birth with a simple and clear legal standard: “where life can be shown to exist, legal personhood exists” (emphasis added). This also perfectly explains why it’s irrelevant that past laws didn’t protect the preborn prior to quickening.

Craddock next shows that many of the states that voted to ratify the Fourteenth Amendment had also criminalized abortion, meaning they understood personhood then in much the same way that pro-lifers understand it now:

By the time of the Fourteenth Amendment’s adoption, “nearly every state had criminal legislation proscribing abortion,” and most of these statutes were classified among “offenses against the person.” The original public meaning of the term “person” thus incontestably included prenatal life. Indeed, “there can be no doubt whatsoever that the word ‘person’ referred to the fetus.” In twenty‐three states and six territories, laws referred to the preborn individual as a “child.” Is it reasonable to presume that these legislatures would have used this terminology if “they had not considered the fetus to be a ‘person’”?

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

From there, Craddock explains how the quickening standard was little more than a practical evidentiary standard, not a meaningful commentary on prenatal life (or lack thereof). But interestingly, he points out that even by the mid-nineteenth century, courts and states alike were increasingly rejecting it as scientifically obsolete, and replacing it with – surprise! – fertilization.

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Twenty‐three states and six territories referred to the fetus as a “child” in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an “offense[] against the person” or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The “only plausible explanation” for this phenomenon is that “the legislatures considered the mother and child to be equal in their personhood.” Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

Next, and perhaps most importantly, Craddock examines the thinking of the Fourteenth Amendment’s drafters. There’s an understandable assumption that because the amendment’s primary purpose was extending citizenship to freed blacks after the Civil War, its effects shouldn’t be construed to extend beyond that purpose. But under the originalist principle of authorial intent, the first word is often the last word in resolving such confusion:

Senator Jacob Howard, who sponsored the Amendment in the Senate, declared the Amendment’s purpose to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.” Even the lowest and “most despised of the [human] race” were guaranteed equal protection. Representative Thaddeus Stevens called the Amendment “a superstructure of perfect equality of every human being before the law; of impartial protection to everyone in whose breast God had placed an immortal soul” […] The primary Framer of the Fourteenth Amendment, Representative John Bingham, intended it to ensure that “no state in the Union should deny to any human being . . . the equal protection of the laws.”

In light of this evidence and reasoning (as well as rebuttals to possible objections I have skipped, but which you should take the time to read), Craddock concludes that there is only one proper constitutional approach to abortion:

If prenatal life is to be protected under the Fourteenth Amendment, Congress or the courts must intervene in states that do not guarantee equal protection and due process to preborn human beings. After all, “the [Fourteenth] amendment was designed to limit state power and authorize Congress to enforce such limitations.” Should a state refuse to protect prenatal life, it would be a violation of equal protection[.]

Exactly, and it’s not “statist” or “big government” or “judicial activism” to say so. The principle of limited government means the government mustn’t exceed its constitutional purposes, but protecting the right to life is its most basic purpose – and a national-level responsibility. While the Founding Fathers wanted federalism to leave states free to decide a wide range of policy decisions for themselves (so America’s large, diverse, spread out population could live in harmony under a single flag while expressing different secondary values and experimenting with different ideas), they also believed that a select few principles, like our most fundamental rights, require a uniform standard.

Craddock concludes on a pessimistic note, predicting that the Supreme Court is unlikely to abandon Roe anytime soon, making a human life amendment to the Constitution politically necessary even though it’s not legally necessary. That’s true for the time being…but it doesn’t have to be.

The past four decades’ worth of abortion jurisprudence has nothing to do with legal merit and almost everything to do with the partisan politics of the presidents who nominated judges and the senators who reviewed them. So while this rot has been allowed to fester for a long time, there are no legal barriers keeping us from challenging it – we need only the will and imagination to change our tactics.

We can demand that our presidents select bolder, more proven judges. We can push Congress to assert its coequal right and duty to protect individual rights by enacting the Life at Conception Act. And we can call on our lawmakers to exercise their constitutional powers to rein in and punish judges who refuse to protect the constitutional rights of every American.

This is where national-level pro-life activism needs to go…and fortunately, Josh Craddock has given that effort an unassailable foundation.

Editor’s Note, 10/17/18: The original headline of this article read ‘Harvard Law Journal concludes: The preborn child is a constitutional person,’ reflecting The Stream’s reporting of the title of Harvard’s press release with the same headline. We attempted to locate the original press release and cannot find it to verify its contents, so the title has been changed to: “Article in Harvard Law Journal concludes: The preborn child is a constitutional person.”

Marriage – More Than Hearts and Flowers But Don’t Forget the Flowers

 

Why does the Catholic Church teach that marriage is indissoluble when there are so many divorces today? To answer this question, we must first look at exactly what the Church teaches. This is summarized in paragraph 1061 of the Catechism of the Catholic which states: “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.” This has been carried over into Canon Law. Canon Law states: “The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament.” (Code of Canon Law 1056) It is a relationship in which the two people involved, by mutual consent; give themselves freely and totally to the relationship in an “irrevocable covenant”. (Code of Canon Law 1057 §2)

There are a number of key words here. The first is “partnership of the whole of life;” the second is “covenant;” third key phrase is “raised by Christ the Lord to the dignity of a sacrament; and the covenant must be between a “man and a woman.”

The first one we will examine is the phrase “partnership for the whole of life” because it is the most obvious in its meaning and therefore easiest to understand. What is a partnership? Merriam-Webster’s on-line dictionary has this definition: a relationship resembling a legal partnership and usually involving close cooperation between parties having specified and joint rights and responsibilities. What are these rights and responsibilities? While there are many the definition from the catechism sums it up in the words “ordered toward the good of the spouses and the procreation and education of children.” So, we are left with the whole of life which means well, “until death do us part” to put it in the most common phrase we hear today.

Rather than a business partnership in which there is a contract the Church says marriage is a covenant partnership. What is a covenant? It is a solemn agreement between human beings or between God and a human being involving mutual commitments or guarantees (CCC Glossary). This covenant is formed when the bride and groom participate in a “human act by which the partners mutually give themselves to each other”: “I take you to be my wife “- “I take you to be my husband.” This consent that binds the spouses to each other finds its fulfillment in the two “becoming one flesh.”(CCC 1627) This covenant, this sacrament, this marriage covenant involves such an intimate binding of two beings that this is image that God Himself favored, through the Scriptures, as the one which most imitates or emulates the sign of His covenant with His people. Unlike a contract, a covenant is not rendered invalid or broken when one party to the covenant does not keep their commitments.

If this marriage is a sacramental sign of God’s love for His people, as it is testified to in both the Old and New Testaments, the act itself must accurately reflect that love. It must be faithful, monogamous, indissoluble, and fruitful. This is the foundation of all traditional Christian sexual morality. This is the image presented to us by God when he created them male and female (Genesis). This is what Christ taught as recorded in the Gospels in Matthew 19: 1-9 and Mark 10:1-5 where Jesus himself declared marriage as indissoluble.

When Jesus finished these words, * he left Galilee and went to the district of Judea across the Jordan. Great crowds followed him, and he cured them there. Some Pharisees approached him, and tested him, saying, “Is it lawful for a man to divorce his wife for any cause whatever?” * He said in reply, “Have you not read that from the beginning the Creator ‘made them male and female’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? 6 So they are no longer two, but one flesh. Therefore,
what God has joined together; no human being must separate.”

One contention in the secular world is the words “between a man and a woman.” The Church does not recognize in this anything but a biological male and a biological female. Part of the reason is in spite of how the person may “identify” themselves or surgically and chemically modify their body, in essence, the way they were “knit together” in their mother’s womb does not change. Only the union between a man and a woman can produce offspring as God intended.

In his book Your Life is Worth Living, Bishop Fulton J Sheen (p250-253) wrote the following:

Marriage between a man and a woman is meant to be enduring by the nature of love. There are only tow words in the vocabulary of love: you and always. You because is love is unique; always because love is enduring.

            There is an order and a supernatural order. We live in the order of the human and the divine. In addition to the physical life there is supernatural life which is grace………Our Blessed Lord makes marriage a sacrament. To those who are united in His Church, He gives grace, strength and power to live out their mutual existence.

I can attest to the truth of what Bishop Sheen writes. My Wife and I have been married almost 48 years. Our marriage has endured thanks to God’s grace and a recognition that we entered into a covenant. Marriage requires a willingness to make a 100% commitment on the part of both spouses. It is not always wine, roses, and wonderful music. It is not always the love scenes from Hallmark movies. Sometimes it is gritty hard work where you wake up in the morning and make a conscious decision that I am going to love that other person today because of all that has gone before and all that I hope will come. Real love is expressed when in the hardest of times, you say maybe to yourself, I value this union more than I value winning the argument or I do not care how rough the road may get, I will walk it with the person, I will remain faithful to the covenant.

Let me close with more from Bishop Sheen: In embracing one another, we give testimony of that by which we are embraced, namely by the love of God.

Happy Valentine’s Day

Outward Signs of an Internal Reality

From the Catholic Thing Website.

On Being a Hearer and a Doer

Bevil Bramwell, OMI

Sunday, February 9, 2020

Now that we are far enough from Christmas to not offend anyone, one might ask why people started sending pictures of family as Christmas cards? Perhaps one should also ask why many people no longer say grace before meals? Or do not attend Mass. . .you get the picture. What is going on?

These are serious problems, not merely changes in fashion: as St. Thomas Aquinas once explained, “man should not be contented with being united by faith to God’s truth, but ought to confess his faith outwardly.”

This was not just some sort of “pious admonition,” but has to do with the nature of faith itself. The Gospels tell us that the love of God and the love of neighbor are closely interrelated. So too, the Letter of James speaks of “the one who peers into the perfect law of freedom and perseveres and is not a hearer who forgets but a doer who acts.”

In fact, Aquinas explained that in the right situations, if we do not express our faith in actions then “we would deprive God of due honor, or our neighbor of a service that we ought to render him.” Both God and neighbor are part of the consideration of how to do something.

What are the right situations? Ever helpful, Thomas went on to say that, for example, “if a man, on being asked about his faith were to remain silent so as to make people believe either that he is without faith, or that the faith is false, or so as to turn others away from the faith; for in such cases as these, confession of faith is necessary for salvation.”

Acting without faith or appearing to have no faith are not trivial stances, however much the world regards them as of little real substance, especially when the consequences are so serious.

If you send a card at Christmas time, you should feel compelled by the season to mark your actions clearly with reference to Christ’s birth. Christmas is the celebration of actual historical events. That is the context and the only valid reason for the Christmas cards. You can send family pictures at any time. I am not judging anyone’s interior faith, but external actions are something that can be evaluated objectively, as St. Thomas affirms.

Among the faithful, there seems to be a widespread drift towards leaving aside external actions even though they are the way that faith touches the external world and changes it. This is rapidly turning Catholicism into a mere idea and not a way of life based on historical events.

*

People are bowing to the Enlightenment idea that religion is just an idea; so you can have your idea of Christianity, and I can have mine. Concrete historical events, however, create different situations that demand a response. They cannot be entirely shoved away or neglected. They stand, even when we ignore them. Like them or not, they are part of our world and will stand in judgment of us when we are ultimately judged.

As we express the truth in Christmas cards with nativity scenes, we join Christ’s mediation of the great mystery of salvation to the world. Someone sending a picture of the Nativity is an intermediary in God’s reaching out to the addressee and saying to him “Hey, I sent my Son into the world for you.” They are also acts of adoration and acts of sacrifice because we go out of our way to send them.

On the grace before meals, to use Thomas’ words, when we do not say that prayer, it “deprives God of his due honor.” Why? Because a person or family ignore a chance to acknowledge that this meal ultimately comes from God as his gift. Yes, there are intermediaries, but no God means no food, because all of the intermediaries and the growth of food itself all come from God!

We cannot know for sure, but does the drift away from the external expressing of faith mean that there are also fewer truly charitable works? It may be one of the attitudes behind the decline in the numbers of people going to Mass as well, for example, or even may contribute to failure in marriages. We cannot know for sure, but we should pose the question: are there fewer external expressions of faith between husbands and wives – and thereby a lesser bond where God does not enter daily into married life?

Catholicism is amazingly public unless one swallows the Enlightenment myth about how faith is supposed to be a private thing; or the myth that the big questions will be handled by the elite as they pat us on the head and tell us not to worry.

In contrast, instead of imagining the social elite being the source of meaning, the divine Jesus Christ really is the source of all meaning. Hence, Catholicism “brings to mankind light kindled from the Gospel and puts at its disposal those saving resources which the Church herself, under the guidance of the Holy Spirit, receives from her Founder.” (Vatican II)

Catholics cannot do this if they hide the light from friends, the marketplace, the school, and the law courts. And the consequences are no small thing. Little errors in the beginning, as that wise pagan Aristotle taught the Church, lead to larger errors in the end.

 

*Image: The Mealtime Prayer by Fritz von Uhde, 1885 [Alte Nationalgalerie, Berlin]

Using Imperfect Vessels

I try to stay away from politics on this blog.  Given what I have seen on social media and other sites, I am glad I do.  Those that know me best know that I have strong opinions on matters political.  I wanted to share a few thoughts elicited by the commentary I have seen following the State of the Union address.

Bloggers and pundits on both sides of the political spectrum have said it was probably one of the best speeches President Trump has ever given.  I leave that judgement up to the readers.

One of the things I find troubling is the criticism, even from some Catholic sites of the President invoking God, and openly defending life and religious freedom.  One blogger, whose posts I read fairly regularly,  intimated the President holds a hypocritical position on the life issue because he talks about the right to life, but Planned Parenthood still gets funded by Congress.

Since it is Congress, specifically the House of Representatives, that initiates all funding bills, they bear the bulk of the blame.  This is further exacerbated by the fact that in the last several years, all appropriated federal funding has been wrapped up in these gigantic Omnibus funding bills that are pushed forward under the auspices of keeping the government open.  Since this ploy is endorsed by both houses of Congress, both are complicit in this farce.  By doing this Congress leaves the President with only one choice.  Veto the bill and precipitate a government shutdown or sign the bill into law and keep the government operating.  A side benefit of this way of doing business from the Congress’s view, is it shifts total responsibility to the President and allows Congress to escape their part in this fiasco.  Personal note here.  Since I worked in the Federal system, I could write a book on the brokenness and malfeasance that is covered up by this tactic.

The fact that President Trump willingly, forcefully and sometimes with a total lack of tact, gives open throated support for the right to life of all of God’s people,  is enough for me at this juncture in our history.

In critiquing Trump, one thing that is cited is Trump’s colorful background.  Yes he is on his third marriage. Yes he has had affairs and flings.  Some even postulated he may have paid for abortions at some point in his life.  Given this, they totally dismiss him out of hand saying he has no right to even say what he says.

I can only answer this way.   God chooses whom he will to do His work.  To say these things denies that personal conversion and redemption is not possible for everyone.  Let’s examine history a bit.

David is considered to be a man of God.  David fathered an illegitimate child with a man’s wife, then arranged for him to die in battle to cover David’s sin.  Yet God accepted his contrition and continued to use Him.

Let’s move forward in history.  Saul of Tarsus was a persecutor  of the early Church.  Scripture tells us that he stood by and watched approvingly as Stephen the Apostle was stoned to death.  He persecuted, arrested and  imprisoned members of the early Church called The Way.  It is reasonable to believe, given the persecution of the time, that some members of The Way probably died as a result of his actions.   Yet it is St Paul who, after his profound conversion, became zealous for the Lord.  He became the Apostle to the Gentiles and evangelized much of the Roman world of his time.  His letters make up a big portion of the New Testament.  He became a Saint.

Let’s move forward further in time.  Augustine was well established in the Roman society of his time.  He taught Rhetoric, which meant essentially he taught the practice of Law.  If you read his book The Confessions, by his own account he was a rounder, a libertine, with a mistress who bore him a son.  Yet after his conversion he went on to become a revered Bishop and one of the greatest theological writers in all of Christendom.   One of the great schools of theological thought is called Augustinian. He was declared a Saint.

Let’s move forward in time again. Dorothy Day is recognized as one of the greatest workers for social justice, Catholic Social Justice,  ever.   In her life she was, to say the least, an activist, a socialist, some say communist.  She help found the Catholic Worker’s Movement.  She had affairs. She bore a child out of wedlock.  She even had an abortion.  She had a profound conversion as well. She has been proposed for sainthood.

I am offering you this very short list of those who were less than perfect in their lives.  Despite that God saw fit to make use of them to advance His agenda.   It is my prayer that God indeed uses this imperfect man. Trump, who is bombastic, who is crude, who is harsh, who is not socially correct, and who may lie or at least embellish the truth, can be used by God for a greater purpose.  Just like God used David, Saul/Paul, Augustine, and Dorothy Day to do His work, may he use President Trump as his imperfect instrument to accomplish his ends.

St. Michael the Archangel,
defend us in battle. Be our defense against the wickedness and snares of the Devil.
May God rebuke him, we humbly pray, and do thou, O Prince of the heavenly hosts,
by the power of God, thrust into hell Satan, and all the evil spirits,
who prowl about the world seeking the ruin of souls.
– Amen. .