{"id":166917,"date":"2017-06-01T14:42:27","date_gmt":"2017-06-01T18:42:27","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=166917"},"modified":"2020-02-20T13:54:29","modified_gmt":"2020-02-20T19:54:29","slug":"landmark-harvard-essay-preborn-child-constitutional-person","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/landmark-harvard-essay-preborn-child-constitutional-person\/","title":{"rendered":"Article in Harvard Law Journal concludes: The preborn child is a constitutional person"},"content":{"rendered":"
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Pro-lifers and honest pro-abortion legal scholars<\/a> agree that Roe v. Wade<\/em> was wrongly decided<\/a>. 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?<\/p>\n

I have long argued<\/a> that legal abortion violates not only the spirit of the Constitution, but the text itself \u2013\u00a0specifically, that the Fourteenth Amendment\u2019s guaranteed equal protection of all people\u2019s right to life has always applied\u00a0to the preborn. Now,\u00a0The Stream<\/a>\u00a0reports that\u00a0the “Harvard Journal of Law and Public Policy” has published an article<\/a>\u00a0written by Harvard law student (and former Live Action contributor<\/a>) Josh Craddock\u00a0that lays\u00a0out the case in perhaps the most depth it\u2019s ever received.<\/p>\n

The first key point of Craddock’s work, critiquing the late, great Justice Antonin Scalia<\/a> from the right<\/em>, is an audacious undertaking, but here it\u2019s warranted. You see, while Scalia was a committed originalist and clear opponent of Roe<\/em>, he was also of the opinion<\/a> that the Constitution is neutral toward abortion\u00a0\u2013 that its use of the word \u201cpersons\u201d \u201cclearly means walking-around persons,\u201d 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.<\/p>\n

Craddock concedes that there is some basis for this thinking because \u201cnatural rights were not exhaustively enshrined in the federal Constitution\u201d and \u201cstates have traditionally decided the question of personhood.\u201d However, he rightfully maintains that a truly originalist answer to the question has to consider what the word \u201cpersons\u201d was understood to mean when the Fourteenth Amendment was written and ratified.<\/p>\n

He proceeds to explain that layman\u2019s dictionaries treated the concepts of humanity and personhood interchangeably, and so did legal terminology \u2013\u00a0more explicitly so, in fact. As we\u2019ve 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: \u201cwhere life can be shown<\/em> to exist, legal personhood exists\u201d (emphasis added). This also perfectly explains why it\u2019s irrelevant that past laws didn\u2019t protect the preborn prior to quickening.<\/p>\n