Raymond B. Marcin is a Professor of Law Emeritus at The Catholic University of America School of Law. He has taught Constitutional Law for four decades and has co-authored The American Constitutional Order: History, Cases, and Philosophy (with Kmiec, Presser, and Eastman), 3rd ed. (Charlottesville, VA: LexisNexis, 2009).
All but ignored in the Dobbs arguments was the issue of whether the living, developing, and growing human child in the womb of her mother has the right to life guaranteed to persons in the text of the Constitution as well as in the text of the Declaration of Independence.
In the arguments before the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization1 on December 1, 2021, there was one major issue that was all but ignored. The attorneys for both sides as well as the Justices all seemed to assume that an overturning of Roe v. Wade2 would result in the matter of abortion regulation being left to the state legislatures.
The late, great Justice Antonin Scalia had that view, and voiced it in his separate opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. 3 After asserting that the United States Constitution does not contain the right to abortion, he went on: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”4 Leaving the matter of protecting of the lives of God’s littlest children to the mercies of the fifty individual state legislatures, however, would seem to be a problematic solution at best.
All but ignored in the Dobbs arguments was the issue of whether the living, developing, and growing human child in the womb of her mother has the right to life guaranteed to persons in the text of the Constitution as well as in the text of the Declaration of Independence.5
That right-to-life issue lay at the heart of the constitutional ruling in the original Roe v. Wade decision. Justice Blackmun, writing for the majority, dealt quite clearly (and quite wrongly, as we shall presently argue) with the constitutional right-to-life issue in his majority opinion in Roe v. Wade, where he wrote: “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”6
Justice Blackmun then went on to list every usage of the word “person” in the Constitution, and drew the conclusion that none of those usages (and these are Justice Blackmun’s words) “indicates, with any assurance, that it has any possible pre-natal application.”7
Was Dred Scott a “Person”?
Interesting question. Was Dred Scott a constitutional “person”?
It is in the context of the denial of personhood to the living, developing and growing prenatal child that a telling analogy has been drawn between Justice Blackmun’s denial of constitutional personhood to fetuses in his Roe v. Wade opinion in 1973 and Chief Justice Taney’s denial of constitutional personhood9 to blacks, slave or free,in his now rightly condemned Dred Scott v. Sandford10 opinion in 1857. These are Chief Justice Taney’s words: “Neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument ( i.e., the Constitution).”11
There have only been two times in the entire history of the United States Supreme Court when the Court has denied constitutional personhood to any classes of human beings. The first time was the Dred Scott decision in 1857 and the second was the Roe v. Wade decision in 1973. Chief Justice Taney was surely wrong in his denial of constitutional personhood (or to be more literal, “constitutional peoplehood”) to blacks, slave whether they had become free or not.
Was Justice Blackmun similarly wrong in denying constitutional personhood to prenatal human children living in the protective wombs of their mothers? Was his textualist quest for some assuring word in the Constitution that might have “possible prenatal application” sound reasoning? Sound or not, it is the currently operative case-law precedent. Justice Blackmun’s must be met with an effort to find, somewhere in the text of the Constitution, a reason why the rights inherent in constitutional personhood should be understood as encompassing prenatal children in the protective wombs of their mothers. Perhaps Justice Blackmun missed some textual reference in the Constitution.
Personhood and the Preamble to the Constitution
When Justice Blackmun, in his Roe v. Wade majority opinion, listed every usage of the word “person” in the Constitution (before concluding that none of those usages “indicates, with any assurance, that it has any possible prenatal application”12), he actually neglected one usage—a usage that happened, ironically, to be the one seized upon more than a century earlier by Chief Justice Taney. Justice Blackmun did indeed find every instance in which the exact word “person” appeared in the Constitution, but he neglected one variant of the plural form of that word “person”—the word “people.” The word “people” is found in the well-known and oft-memorized Preamble of the Constitution, here quoted in pertinent part: “We the People of the United States, in Order to … secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”13
The United States Constitution’s Preamble thus contains a clear indication that those who framed the Constitution wanted it to be interpreted in a way that secured the “Blessings of Liberty” (which presumably would presuppose the blessings of life) not only to themselves but also to their yet-to-be-conceived posterity.
To phrase it a bit more clearly, those who framed and those who adopted the Constitution seemed to be saying in their Preamble that, if a question should arise as to whether a provision of the Constitution should be interpreted in a way in which the interests of yet-to-be-conceived posterity would be taken protectively into account, or in a way in which those interests would be essentially ignored (or worse, denied), the former interpretation should be the one adopted. That, according to the Preamble of the Constitution, was the purpose and intent of the framers of the Constitution and the purpose and intent of those who adopted the Constitution, i.e., the People of the United States of America. The framers and those who adopted the Constitution intended to secure to themselves, and to their yet-to-be- conceived Posterity, the “Blessings of Liberty,” including (as one must) the right to life, so that those blessings could be enjoyed by yet-to-be-conceived “Posterity.”14 Possible tentative conclusion? The very text of the Constitution itself supports a fetal-personhood right-to-life interpretation.
But wait. To be practical and to “give the devil his due,” one must acknowledge that it would be disingenuous in the extreme to suggest that the word “Posterity” somehow refers exclusively to prenatal children in the protective confines of their mothers’ wombs. Quite obviously the framers and adopters of the Constitution intended the word to refer to the generations yet to come, i.e., the descendants of the people of the United States of America (and doubtless not even in an exclusively biological sense). In that context, however, and even with that gloss of understanding, the clause represents a textually specific indication that the Constitution was intended, and presumably should be understood and interpreted, to secure the “Blessings of Liberty” to descendants as yet unconceived. Indeed, it is not disingenuous to suggest that the Constitution places two classes of people on a par in terms of entitlement to the “Blessings of Liberty,” i.e., “ourselves” and “our Posterity,” and the word “Posterity”15 is difficult to define except in terms of yet-to-be-conceived persons. To put the matter quite simply, from a textualist perspective, the conclusion seems inescapable that one of the purposes for the establishment of our Constitution, identified as such in the Preamble, is to secure the “Blessings of Liberty” to yet-to-be-conceived-persons who, once conceived, become a living, developing, and growing member of posterity.
Here is the point: When Justice Blackmun wrote that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible prenatal application,”16 he was incorrect. He had neglected the usage of that variant plural of the word “person” that appears in the Preamble— “People”—and its association with “Posterity.” His conclusion that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible pre-natal application” is incomplete and therefore flawed—he did not analyze the implications of the inclusion of “ Posterity” in the “We the People” formulation in the Preamble—and this harks back to his statement: “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the (Fourteenth) Amendment.”17
One apparent difficulty with this argument from the Preamble is that, according to more or less settled case law on the use of preambles, the preamble cannot be used as an independent source of rights and powers, but can only be used to elucidate those which do appear in the main text of the law in question.
The difficulty, however, is only apparent. The pro-life position is not that the Constitution’s Preamble is an independent source of a constitutional right to life inhering in human fetuses. The pro-life position points first to the two constitutional guarantees of the right to life to persons in the text of the Constitution,18 and then, as is permitted, uses the Posterity-in-the-Preamble argument to elucidate, or shed light on, the meaning of the word “person,” by demonstrating that the Ordainers and Establishers of the Constitution wanted the Document to be understood into the indefinite future to be as much “posterity”-oriented as “selves”-oriented—an intent not unlike the intent undergirding the familiar Golden Rule,19 and which undergirds an oft-employed ethical “honest-doubt” principle (discussed below).
Under this analysis, the Court, when faced with an interpretive question which could be resolved in a way in which the concept of “posterity” is (1) taken positively and protectively into account, that is, an interpretation which is posterity-oriented, at least in part, or (2) ignored or treated negatively, would in light of the “Blessings of Liberty” clause ordinarily choose the former. This argument is more negative than positive in its casting, stressing only that interpretations which ignore or treat negatively the interests of posterity, or which fail to put posterity on the same level as “selves,” are very likely not in accord with the spirit of the Constitution. It does not suggest that posterity has some affirmative constitutional claim to rights or entitlements.
As applied to the Roe decision, however, the argument carries some force. In Roe the Court was faced with at least two plausible choices,20 one of which (extending Fifth-and-Fourteenth-Amendment right-to-life coverage to prenatal children) was posterity-oriented in that it would have taken the interests of a portion of posterity positively and protectively into account, and the other of which (denying Fifth-and-Fourteenth-Amendment right-to-life coverage to prenatal children) could hardly be said to be posterity-oriented or to put “Posterity” on the same level as “selves,” in that it recognized no protectable interests of the portion of posterity in question (it did, however, recognize a severely qualified and conditioned interest of the government in “potential” human life). The Court chose the latter interpretation, and in doing so (so the argument would go) was not in accord with the spirit of the Constitution as informed by the “Blessings of Liberty to … our Posterity” clause of the Preamble.
And finally, even aside from the text of the Preamble and the Fifth and Fourteenth Amendments, an “honest-doubt ethical principle” expresses a very basic moral sentiment that is ingrained in natural-law theory, and (one might suppose) in any system of ethics worthy of the appellation (not to mention in ethical common sense): If there is an honest doubt as to whether any given entity ( e.g., a slave, a former slave, a prenatal human being) is a person, any truly humane and civilized society ought to resolve that doubt in favor of personhood rather than against it.
1 Pending United States Supreme Court case # 19-1392; argued December 1, 20121. Issue to be decided: Whether all pre-viability prohibitions on elective abortions are unconstitutional.
2 410 U.S. 113 (1773).
3 505 U.S. 833 (1992).
4 505 U.S., at 980, Scalia, J., concurring in part and dissenting in part (emphasis in original).
5 U.S. Const. amends. V (“No person shall . . . be deprived of life . . . without due process of law . . ..”) and XIV § 1 (No State shall . . . deprive any person of life . . . without due process of law . . ..”). The “unalienable” right to life is guaranteed as well in text of our Nation’s Declaration of Independence ¶ 2 (“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . .. ).
6Roe, 410 U.S., at 156-157 (emphasis added).
7 Id., at 157 (emphasis added).
8 For example, eligibility to be a Representative (Article I, sec.2), a Senator (Article I, sec.3), a President (Article II, sec.1), etc., etc.
9 To be fastidiously literal, Taney denied people-hood to all persons who had been imported as slaves whether they had become free or not, “people” being an alternative plural form of the word “person.”
10 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
12 Roe, 410 U.S., at 157.
13 U.S. Const. Preamble (emphasis added). Although the Preamble may not be resorted to as a source of constitutional rights, it may be resorted to as an aid in interpreting the meaning of rights that are expressly mentioned in the main body of the Constitution, e.g., the meaning of the Rights to Life in the Fifth and Fourteenth Amendments. See Joseph Story, Commentaries on the Constitution of the United States §§ 218, 219, at 163-64 (abridged ed. 1833).
14 The argument that a fetus might be a member of “posterity” first appeared in James Joseph Lynch, Jr., “Abortion and Inalienable Rights in American Jurisprudence: A Prospective Policy” (Unpublished Lecture, 1987); referred to in James Joseph Lynch, Posterity: a Constitutional Peg for the Unborn, 40 Am. J. Juris. 401, 401 (1995). See also Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro Life Position, 38 Am. J. Juris. 273, 293-94 (arguing that attentiveness to the interests of fetuses (yet-to-be- conceived “posterity”) is consistent with John Rawls’s “Justice Between Generations” in his A Theory of Justice 251-58 (Harvard Univ. Press, rev. ed. 1999) (1971).
15 Webster’s Third New International Dictionary defines “Posterity” as “the off-spring of one progenitor to the furthest generation” or descendants,” and cites and quotes the “blessings of liberty” clause in the Preamble to the Constitution as its example.
16 Roe, 410 U.S., at 157.
17 Id., at 156-57.
18 U.S. Const. amends. V and XIV § 1.
19 I.e., Do unto others as you would have them do unto you. See Matthew 7:12.
20 A third choice, to leave the matter to the legislatures as the late Justice Scalia would have had us do. In that context, however, choosing to leave the matter to the legislatures would amount merely to a postponement of the interpretive problem. The constitutionality of the legislatures’ work products, be they pro-life, pro-choice, or something else, would still have to be assessed in light of the Blessings-of-Liberty Preamble and the Right-to-Life Clauses.