Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in...

I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with

the change in circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors.1

Since fetuses and embryos on an objective modern scientific basis are human beings, it may be argued that it is morally wrong to deny unborn human beings the status of personhood.2 If it is accepted, as I believe, that the unborn members of the human species are human beings, then it is arguable that as human beings they are natural persons as a matter of law. If all this is true, I contend that it is immoral and legally wrong to exclude the unborn human being at any age prior to birth from the constitutional meaning of person under the Fourteenth Amendment to the U. S. Constitution. It is my position that American constitutional law will not conform to the rule of law, and will fail to honor the basic doctrines of equal protection under the law and substantive human rights, until the legal meanings of "human being" and "person" are identical and are mutually recognized as a matter of constitutional law when a new human being is created at the time of conception.

Denial of constitutional personhood to the unborn human being segregates an entire class of the human family making the unborn human being legally separate and unequal to those members of the human family who have been born. The result is that only those wanted children who are chosen to live and who are in fact born become legally recognized as a person following a live birth. For it is birth that marks the current legal boundary when a legal person is recognized in the United States of America, and bestows the constitutional rights of life, liberty and citizenship.

Unlike legally recognized persons, the unborn members of the human family who are not chosen for live birth have a different destiny. These unborn human beings are non-persons in law, and as such, are subject to the will of physically mature and legally empowered persons, normally their mothers. As non-persons, these unborn human beings risk treatment as commodities and property, for they are not legal constitutional persons. Their physical body parts, such as fetal brain tissue, may be harvested as living commodities for use in commercial scientific experiments designed to cure diseases of mature persons, such as Alzheimers disease. Many non-persons are thus destroyed and forced into the role of disposable slaves designated to advance medical, reproductive and scientific goals such as embryonic stem cell research and cloning. Other non-persons who are the product of in vitro fertilization (IVF) are created outside the human womb and will also never be born, for millions of these non-persons are frozen indefinitely until used for science or ultimately discarded.

Non-persons have no constitutional right to life. Prior to birth, all non-persons, both wanted and unwanted, have no legal rights other than those specifically bestowed by positive law. Prior to actual birth, a non-person's destiny may change at any time. An unwanted human being may become chosen for birth, and a previously wanted human being may become unwanted. Even after birth, there are no guarantees that constitutional personhood will endure, for a transition from person to non-person is possible, if positive law and legal definition makes it so.

As a matter of current American constitutional law, the word "person" does not have the same meaning as "human being," until the process of live birth has been completed. Until then, the law permits parents, doctors, scientists, and judges, amongst others, to openly discriminate between human beings that are chosen for birth and those that are not. Even though in the United States, the Fourteenth Amendment to the Constitution offers a right of equal protection and due process so that no person is deprived of his or her life or liberty, this right is denied to any human being who is not defined as a person-all unborn human beings.

I contend that the Fourteenth Amendment, unlike the Fifth Amendment, which was intended to protect people from government, was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a living constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings that are defined as non-persons, including all unborn human beings, individually, and as a class. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. It is a matter of judicial interpretation.

In the following discussion, I will show that the common law, history and tradition establish that the unborn from the time of conception, were both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. I will further show by comparison that the legal test used to extend constitutional personhood to corporations, which are legally artificial persons, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood.

I maintain that there is no rule of law if the Constitution is interpreted to perpetuate a legal caste system of "separate and unequal," where there is no justice for the unborn. I contend there is no justice for the unborn human being so long as there is denial of equality, respect, dignity, liberty, life, and due process of law. Since the word "person" in the Fourteenth Amendment is capable of being interpreted liberally in an objective manner consistent with the rule of law to include all human beings, not to do so violates the natural law which is the foundation of the Declaration of Independence and the core liberal ideals of equality and human dignity.

Finally, I will argue that all unborn human beings, whether wanted or not, have a right to equal protection and due process under the Fourteenth Amendment. If I am right, then the Constitution gives all embryos and fetuses the right to life and the inherent right to be born, free from the current and future threats of unnatural death and involuntary sacrificial exploitation as subjects in medical experiments.

Relying on the reasoning of the Supreme Court in Brown v. Board of Education,3 I will show by analogy and the use of paraphrase that the U.S. Supreme Court can overrule Roe v. Wade4 on the grounds of equal protection alone. Such a result would not return the matter of abortion to the various states. The Fourteenth Amendment would thereafter prohibit abortion in every state.

What follows is a blueprint for constitutional change that will show that the jurisprudence and constitutional text exists for interpreting "person" to mean the same thing as a natural human being.

The Supreme Court has the power to reverse flawed precedent and can now do justice according to the rule of law. There is simply no place in American society for a caste system5 that discriminates against non-persons.

I. Dividing Human Beings Into Persons and Non-persons

Does the word "person" in the Fourteenth Amendment include unborn human beings? If it does, then embryonic stem cell research, cloning, the destruction of IVF embryos, and abortion are potentially unlawful. If it does not, as a matter of logic and consistency, cloning, embryonic stem cell research, the freezing and destruction of embryos, and abortions ought all to be lawful, subject to rational regulation.

To decide whether an unborn human being is a "person" in the constitutional sense, the first steps are to decide what is a human being, and when a human being begins its existence as a living organism. The next steps are to discover what is a person, decide whether a human being is equivalent to a person, and whether a person in the constitutional sense ought to be confined to natural persons born and unborn-that is, human beings that are fully human and are not artificial beings or any derivative or hybrid of any non-human animal species.

A. Human Being

What is a human being? Science informs us as to the answer. Putting aside philosophical differences, biology supplies the lowest common denominator of agreement between reasonable people. Human embryology is so advanced there is no doubt that a new human being is created at the time of conception.6 Unlike living stem cells, sperm, or eggs, once there is union between a sperm and an egg, a new human being is created. It is a unique individual with its own DNA and is a member of the human race. This new human being, provided it survives natural and externally induced hazards, will develop according to its own genetic blueprint long after its birth, until the process of development and degeneration cause this organism to die of natural or external causes.

From the time of conception, a new creation, the zygote, has come into existence.

[O]nce the zygote had been formed, there is a new organism, different from the two gamates taken separately, but the same as the fetus, the child and the adult into which it develops. For there is no discontinuity in the process of embryogenisis from the zygote stage to the fetal stage and beyond. No substantial changes take place after fertilization. The neo-conceptus, i.e. zygote and the entity after the first cleavages, is the same individual organism as the adult into whom it later develops.7

The new genome, contained in the zygote, is internally activated by a biochemical process and assumes control of the whole morphogenetic process from the beginning of embryonic development.8 The zygote divides from one cell into two, from two into four, and from four into eight.9 These cells are called totipotent, because they have a full range of developmental capacity to turn into any type of tissues or organs that are part of the adult human body.10 Totipotent cells are also able to differentiate differently in various environments, and are able to develop into a complete individual.11 Once the eight-cell stage is reached, the cells lose their totipotency.12

The nature of totipotency is to execute a plan according to a given program.13 Undisturbed by external intervention, left alone totipotent cells will carry out the plan nature intended in an ordered unique and coordinated process.14 Given the right conditions, an isolated totipotent cell can start its own life cycle.15 At that point, the cell could be considered a new biological identity.16 Until then, totipotent cells remain part of the embryo without in any way diminishing its unique biological individuality.17

Assuming cell division, or cleavage, continues to occur, the resulting collection of cells is known as the morula.18 The embryo continues to develop, and around the sixth day a fluid-filled space forms within the morula.19 A blastocyst forms as a hollow ball of cells with an inner and outer cell mass.20 Stem cells are part of this inner cell mass.21 They are pluripotent, or undifferentiated cells, potentially able to become a source for any type of human cell, and able to live indefinitely in culture as a cell line.22

Scientists who want to engage in embryonic stem cell research remove these stem cells from the blastocyst, and can grow them indefinitely in p?trie dishes for use in medical research. The good news is that these stem cells hold the potential promise of cures for Parkinson's disease, spinal cord injuries, various cancers, and many other possible afflictions.23 The bad news is that the removal of stem cells from a blastocyst destroys that embryo, and in the process kills an unborn human being.

This scientific search for the biological truth is entirely objective and reliable. I therefore assume all zygotes, embryos and fetuses are human beings from the time of conception until the time of natural death.24

B. Person

What is a person? Law informs us as to the answer. Scientific evidence of humanity is irrelevant. A person may be a human being after birth but not before. A person may be a human being after birth, but that human being may be denied life because of race, disability, or religion. The lawmakers' use of the word "person" is analogous to that of an elastic band, being stretched or retracted to accomplish a political agenda. If a human being is included in the definition of person, then there is legal sanctuary for that individual. If a human being is not included in the definition of a person, then there is no legal protection for that individual. This process is entirely subjective.

For example, designating a human being as viable based on respiratory function is the starting place when the state interest may in theory protect unborn human life.25 In Planned Parenthood of Southeastern Pennsylvania v. casey, Justice O'Connor stated:

[Divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the state's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23-24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may, if/eta! respiratory capacity can somehow be enhanced in the future.26

Viability could have been judicially defined as the time when an unborn child's heart starts beating27 or when its brain begins functioning,28 or when an embryo is able to feel pain.29 After all, for persons, the termination of independent respiratory function does not define death, when an elderly or disabled persons heart is beating and the brain is alive.30 Picking respiratory function is a practical result-oriented conscious subjective choice by justices to permit unrestricted first and second trimester abortions upon non-consenting incompetent human beings, for an unborn child's heart and brain are already functioning usually before the mother even discovers she is pregnant.

Unlike a born person, like Nancy Cruzan, who by an accident became an incompetent non-viable developed human being in the prime of her life, whose life enjoys the protection of law, an unborn human beings life may be legally extinguished without consent by the substituted judgment of another human being who solely holds an arbitrary power of life and death, usually without regard for the best interests of the unborn child.31

Arbitrary legal boundaries, like "viability," which are designed to expose unborn children to legally approved violence in the darkness of the womb, reflect prejudices, domination, and injustice. As a "discrete and insular" minority,32 millions of unborn children, individually or as a group, are powerless to halt their future death and suffer the burden of invidious discrimination and painful loss of life.

II. Dehumanizing Humans with Personhood Theories

I contend that a human being is also a person from the time of conception. I define a person as a fertilized living organism of the species Homo sapiens. I say "fertilized" to distinguish newly created life that, left to nature, will develop into a baby, and eventually into an adult, from a living cell of the human body that has no such future. My definition applies to all persons living both inside and outside the womb. This definition draws a bright line intended to give constitutional legal protection to all human beings, from the beginning to the very end of life. This protection includes the inalienable rights to life, liberty and the pursuit of happiness. In my view, the unborn are human beings, and as such, are to be respected as persons from the first moment of their creation.33

To accept that personhood is a legal right or moral status that may be "conferred" as opposed to an inalienable right reduces the "right" to life to a "privilege." Constitutional persons exercise the power of life and death over the members of the non-person caste through laws that bestow or remove personhood. Inequality is institutionalized and philosophically rationalized. The practical result is the loss of respect for the sanctity of unborn human life.

Personhood theories reveal a common theme-the depersonalization of members of the human family by cleaving personhood from the unborn human being. Our children are inheriting a world that is insensitive to the routine discrimination against the present caste of non-persons-embryos and fetuses, and possibly future non-persons-infants, the physically and/or mentally disabled, the brain injured, the elderly, those in a coma, and those who have incurable fatal illnesses.34 This modern day discrimination between members of the human family is based upon the degree of physical, psychic and social development of the human being.35

There are numerous identifiable boundaries in the lifespan of a human being that may be used by the courts and governments to decide when to confer personhood upon a human being. Where to draw the line causes disagreement, for in the real world of human nature and development, there are no borders or boundaries. Criteria to define personhood rest on philosophic distinctions that create illusions and serve political purposes.36 They are all artificial and arbitrary concepts that purport to neatly and fairly divide the continuum of life that varies for each unique human being.

Some philosophers and legal scholars, whom I call segregationists, argue that unborn human beings are not persons because they do not possess the characteristics of a person. A common technique in this argument is to generate a list of characteristics that define when personhood begins. The following list represents many of these artificial boundaries, which correspond to physical, psychic and social development of the human organism at various stages of development. They include:

1 Moment of conception (assignment of genetic identity);

2. Beginning of the primitive streak (after which time twinning is no longer possible);

3. Implantation of the embryo in the womb;

4. Formation of the nervous system and sentience (the ability to feel pain);

5. Formation of the cerebral cortex of the brain (the ability to reason is a concern, as well as the logic of paralleling "brain life" with "brain death");

6. Quickening (when the mother can feel the baby move);

7. When the fetus looks like what people expect a human being to look like (morphological similarity);

8. Fetal viability (when a pre-mature baby can survive outside the womb with medical assistance and the help of others);

9. Birth (the moment of fully emerging from the mother's body-as distinguished from partial birth);

10. Acquisition of self-consciousness;

11. Acquisition of ability to reason;

12. Demonstration of intelligence (a minimum I.Q.);

13. Self-determination (assertion of will);

14. Socialization (the formation of conscious relationships to other people);

15. Memory (the ability to remember); and,

16. Aspirations (the ability to look forward to achieving hopes and dreams).

Segregationists claim it is morally acceptable to experiment upon embryos up to fourteen days after the time of conception, arguing that these organisms are not even human beings. In rejecting the argument that embryos younger than fourteen days of age are not human beings, Professor Alan Holland writes:37

You and I are human beings. There is only one concept of 'human being'-the biological one. A human being is simply a living organism of the species Homo sapiens. In contemplating embryo research we must describe accurately, honestly and without sentimentality what it is that we propose to do. We must not hide from ourselves (what I believe to be) the fact that when we experiment on human embryos we experiment on human beings.38

One might disagree with Holland by presuming that the proper form of a human being is what our imagination conjures up when we are asked to picture a human being in our minds. Most of us would think of a reflection of ourselves. Why would we not imagine a fetus, an ill or disabled person, or a person of a different race or sex? Our mental image of a human being changes when we realize an embryo can never be a future human being because if already is a human being.39 An embryo is not only a human being; it is also a person. Philosopher Diane Irving sums up the argument: "'Personhood' begins when the human being begins."40

In attempting to identify the criteria needed to be a human being, the one thing that is relevant is ignored-an embryo already possesses all the characteristics it needs to qualify as a human being by its very nature, appropriate to its age and stage of development. To suggest an embryo must possess the characteristics found in a normal human being at a different age and stage of development is simply not a credible argument, even if one assumes such "characteristics" are readily definable.41

To be a person, I contend that it is enough just to be a fertilized living human organism of the species Homo sapiens.42 Human development is a rational continuous process of generating the human organism as well as the rational process of degeneration prior to death. Medical doctors know there is an innate, organized and coordinated pattern to body functions in the living and in the dying that by their very nature are rational.43

The science of embryology proves that new human life begins at the time of conception.44 Still, many pro-choice advocates deny the objective truth of this biological fact and maintain that embryos and fetuses are only potential life. Others, like Judith Jarvis Thomson assume for the sake of argument that a fetus is a human being and a person from the moment of conception.45 Nonetheless, she ably defends abortion, arguing no woman has the moral obligation to carry her unborn fetus to term.46 To illustrate her point, she invents a story about someone waking up to discover her body plugged into a male violinist who would die without life support from a fatal kidney disorder, unless the violinist remains plugged in over the next 9 months.47 The analogy is to an unwanted pregnancy. Thomson decides it is morally permissible to unplug the violinist, without considering whether the mother has a fiduciary duty to be merciful as a "good neighbor" to her unborn child. Anita L. Alien supports Thomson and argues the hypothetical fact of "connection" to the violinist has no moral bearing on the woman's right to choose to remain connected for the next nine months.48

Thomson is right that there is no constitutional obligation to be a "Good Samaritan."49 However, it is this aspect of unselfish love and service to "the least among us" that distinguishes us from others who may be less charitable. It is our love for our neighbor and whether we care for and protect the poor, the helpless and the most vulnerable among us, which determines whether we live in a desirable, civilized society.

Philosopher Michael Tooley, in support of searching for a moral justification of abortion and infanticide asks, "[w]hat properties must something have to be a person . . . [a]t what point in the development of the species Homo sapiens does the organism possess the properties that make it a person?"50 Tooley uses the analogy of human slavery to make the point that most people would find slavery of adult human beings morally unacceptable because, at a minimum, adults have experiences and are capable of expressing thought with language.51 Tooley argues that an embryo, fetus or newborn infant has none of these properties and cannot be regarded as a person.52 Tooley maintains that an organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity. This is known as the "self-conscious" requirement.53

Tooley thus justifies the legalization of infanticide and the euthanasia of persons who are in a persistent vegetative state. What Tooley initially failed to recognize is that human beings at various times move in and out of self-consciousness as fate and circumstances determine if we continue to meet personhood criteria. The ability to enjoy self-consciousness in the case of the unborn is merely a transient state that lasts just a small fraction of one's lifetime. While pari of our society may accept the termination of the unborn, it is not ready to always accept Tooley's position and reclassify a person as a non-person.

Philosopher Joseph Fletcher too has been greatly influential in advancing lists of criteria to remove fetuses from the human family. "What is critical is personal status, not merely human status."54 Fletcher makes no apologies for his goal to promote abortion or his undisguised utilitarian philosophy: "The one [decision] which results in the greater good for people is the correct one. On this basis there is an open and shut case for abortion, obvious and overwhelming; it can be justified very often, sometimes for reasons of human health, sometimes for reasons of human happiness."55

Fletcher frankly admits that for him ethics is the business of providing rational critical reflection about the problems of the moral agent, whether that problem is in biology, medicine or law.56 Ethics in Fletcher's world are result-driven. When Fletcher wanted to put an end to compulsory pregnancy, the means to this end was the creation of a list of criteria to disqualify the fetus from personhood. The ethics of abortion itself, the killing of innocent human life, was irrelevant.

If we adopt the sensible view that a fetus is not a person, there is only one reasonable policy, and that is to put an end to compulsory pregnancy. The ethical principle is that pregnancy when wanted is a healthy process, pregnancy when not wanted is a disease-in fact, a venereal disease. The truly ethical question is not whether we can justify abortion, but whether we can justify compulsory pregnancy. If our ethics is [sic] of the humane brand we will agree that we cannot justify it, and would not want to.57

So far as I can discover, every segregationist philosopher who promotes a list of attributes needed to qualify as a person has made sure that they themselves fit the criteria they propose for others. For example, Tooley later modified his theory to ensure that he would not be considered a non-person during the time he slept. These lists are designed to ensure that embryos, fetuses, and in some cases, neonates will fail the test of "personhood." These lists are not designed to be inclusive of all members of the human family, but are instead meant to exclude classes of human beings who fail to meet the criteria of what a "person" is.

The effect of segregationist philosophy creates a facially neutral and socially acceptable "objective" means to discriminate between human beings in order to transform an immoral act into an ethically acceptable and legal one to achieve desired goals. Abortion, selective reduction, embryonic stem cell research, cloning, the creation of human chimeras and active euthanasia may then be done with a clear conscience, peer approval and with legal immunity.

Personhood theories will remain so long as there is prejudice against unborn human life and a desire to perpetuate an unequal class system in America. However, immoral concepts have no coercive power unless they are embodied in law. Political and judicial institutions have the power to reject and hopefully the wisdom to recognize clever arguments that ask them to condone and sanction immoral acts. The story of The Emperors New Clothes58 is an apt reminder of the wisdom and power of an innocent child who spoke the truth grown-ups lacked the courage to say.

Without a precise judicial answer as to what constitutes a person or a human being, the question of when human life begins remains open as a matter of jurisprudence. A fluid definition of "person" fits new societal goals and circumstances as they arise.59 Personhood is analogous to a rubber band that can be stretched or contracted to decide who is or is not presently eligible to be a member of the human family. Criteria to decide who is eligible to be or remain a person are limited only by one's imagination.

Personhood theories violate the respect for life and human dignity basic to the natural law.60 Removing the status of personhood from living human beings is an affront to human dignity and the essence of what it means to be human. Substance is what matters, not form. At the very core of our humanity, we are all the same and share a common biological origin. Deviance from this creates inequality before and under the law, invidious discrimination and disrespect for human life. All this is as old as the history of mankind.

What is new are the scientific accomplishments made possible by the advance of biotechnology, and the exploitation of a new class of non-persons. Using biotechnology as an opportunity and excuse to create, destroy and manipulate human embryos is nothing less than legalized homicide under the mask of good intentions.61 Just because something is scientifically achievable does not automatically mean that it is morally right.

I reject the arguments for personhood as these theories lack respect for human life. In a single lifetime, a human being will be at different times a person or a nonperson. Fairness and equality require constant respect for human life throughout the continuum of human life in all its forms. We live in community, share our common humanity and depend on one another. When someone is weak and vulnerable, this is our opportunity to demonstrate our love, mercy and kindness.

III. Segregationist Theories Acquire the Force of Law

The legal question of whether an unborn child, presumed to be a human being, was a constitutional person acquired national importance in 1973, when the Supreme Court in Roe v. Wade62 ruled an unborn child was not a person until it was born. The decision in Roe v. Wade opened the door for the legal termination of the life of any form of unborn human life (embryo or fetus) at any time prior to birth within a woman's body.

Justice Blackmun, who authored the majority opinion, avoided answering the question of when human life begins:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.63

It was unnecessary to decide this question, as the answer did not matter, since the Court specifically held that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."64 An unborn being was therefore not a "person" and had no right to life. Personhood was to be conferred by operation of law only after a baby was fully born. The constitutional right to life was thus reserved for those children chosen by love or fate to be born. Justice Blackmun suggested that if the unborn were constitutional persons, the case for abortion would collapse.65

Roe v. Wade declared that unborn human beings were not "persons" and accordingly did not have any constitutional right to life and liberty.66 This result was in line with the Courts review of history that disclosed "the unborn have never been recognized in the law as persons in the whole sense."67 The decision also fully restored the freedom to have an abortion prior to quickening that existed at the time the Constitution was adopted.68

Even though the Court denied personhood to unborn human beings, the Court also held the right to privacy did not elevate the decision to have an abortion into an unqualified or absolute right.69 The "right" to an abortion was subject to state interests in regulation. The Court identified two complementary state interests that become increasingly compelling as the fetus develops biologically. First, the state has a valid interest to regulate the abortion industry by regulations that are "reasonably relate [d] to the preservation and protection of maternal health."70 This state interest commences at the end of the first trimester of pregnancy. Prior to this time, the decision to abort is unregulated and is the exclusive decision of the mother, who presumably relies upon the advice of her abortion provider.71 Second, a state interest is triggered at the point of fetal viability, when the fetus is presumed to have the capacity to have a meaningful life outside its mothers womb.72 In the third trimester, the state is permitted to "proscribe abortion" by regulation "except when it is necessary to preserve the life or health of the mother."73 In this manner, the Court balanced the complementary interests of the state and the pregnant woman, but failed to consider the interests of the unborn.

The unborn are thus denied the right to life under the Constitution, because the unborn are not constitutional persons and are therefore legally unequal to a pregnant woman. As "things," or quasi-property, the unborn are still subject to government regulation. Just as there are federal and state regulations that limit individual liberty to cut down trees, slaughter domestic animals, and control hunting and fishing seasons of wildlife, state laws may protect the health of pregnant women and regulate abortion. Unlike state laws that protect animals from cruelty and excessive slaughter, there are no such limits regarding the abortion of unborn human beings.

In the 1992 case of Cosey, the majority of the Supreme Court, led by Justices Souter, Kennedy and O'Connor, retained and reaffirmed what they believed was the central holding in Roe.

Roe's essential holding, the holding we reaffirm, has three pans. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.74

In rejecting for the sixth time the invitation of both the amicus curiae and the United States' to overrule Roe v. Wade,75 the Court reaffirmed that it was "settled" that the Constitution places limits on a States rights to interfere with a person's liberty to make decisions on family and parenthood.76 "Person" of course means a pregnant woman, and does not include the fetus.

Left unconsidered again was the life and liberty interests of the unborn. The Court in casey did not engage in a balancing analysis between the inferior life interest of the unborn human being and the superior liberty interest of its mother. Departing from Roe, the Court abandoned the trimester framework, as going too far, for it did not recognize enough the state's legitimate interest in regulating abortion prior to fetal viability.77 However, even though the Court recognized the state's profound interest in "potential life" throughout the duration of pregnancy,78 the Court chose once again not to confer constitutional personhood on the unborn.

Justice Stevens, in concurrence with the majority, correctly observed that there has never been a single dissent (let alone a majority opinion) by any Justice on the fundamental issue decided in Roe that the fetus was not a "person" within the language and meaning of the Fourteenth Amendment.79 This is why the termination of "life" by abortion is not entitled to constitutional protection, nor is there a competing life and liberty interest to the life and liberty interest of the pregnant woman.80

Justice Blackmun made the same point in casey, and added that even the Solicitor General in oral submissions before the Court did not question the constitutional non-personhood status of the unborn child.81 The state interest in regulating the lives of unborn children is simply "a legitimate interest grounded in humanitarian or pragmatic concerns."82 Since Roe, the Supreme Court has not been presented with a challenge concerning the legal status of the personhood of an unborn human being. Instead, the cases have centered on a multitude of state regulations that are designed to sway a woman's choice,83 or chill a physicians willingness to provide abortion services.84

Casey lacked an investigation by the Court to answer the question posed in Roe of when a human being is created. Justice O'Connor candidly admitted, that one's beliefs would be affected by whether the unborn is a "life" or "potential life." She wrote:

Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted.85

Having stated this, the Court in Casey86 followed Roe87 and used the term "potential life" to describe the unborn. These references are evidence that the Court never has and does not presently recognize the unborn as alive, as persons, or even as human beings.

The view that the unborn are not alive and represent only potential life is highly controversial. Whatever term one might use to describe the unborn, there is no biological basis to deny that the unborn, from the first moment of their creation at conception, are fully alive and are fully human. This language of "potential life" contradicts what many people know to be true and defies indisputable evidence of the living unborn available to the public.88 Justice O'Connor's plurality opinion in Casey stated Roe could be reversed if its basic premises of fact were erroneous or based on ignorance that rendered the Court's prior central holding to be unjustifiable.89 It is a myth to pretend unborn human life is "potential life." The truth is that an unborn human being is a life with potential. Expounding the myth of "potential life" is the kind of major factual error that supports a reversal of Roe.

Nearly 30 years after Roe, the right to an abortion is entrenched in American law. Before viability, a pregnant woman has a right to choose to terminate her pregnancy.90 "'[A] law designed to further the States interest in fetal life which imposes an undue burden on the woman's decision before fetal viability' is unconstitutional."91 An "undue burden [means]. . . a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."92 After viability, the state may promote its interest in the fetus to regulate, and even proscribe abortion "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."93 These legal principles are the framework for the peculiar institution of abortion, where a mother is legally permitted to choose prior to her due date, which, if any, of her children will live or die.

Within these legal confines, the State of Nebraska attempted to proscribe a gruesome method of post viability abortion known as a D&X or "partial birth" abortion. In this procedure, the person performing the abortion partially delivers vaginally a living unborn child before killing it and completing the delivery.94 Nebraska's legislation criminalizing this procedure was held unconstitutional because the law lacked an exception for the preservation of the health, not the life, of the mother, and it imposed an undue burden on a women's ability to choose a partial birth abortion.95 Cruelty and pain to the fetus was irrelevant in the Court's determination of the constitutional issues. The Court ignored the key question of whether a fetus, and in particular a partially born fetus, is a constitutional person. Again, not one Justice, even in dissent, referred to the fetus as life, as opposed to "potential life."

The continued denial of legal personhood invites judges to turn a blind eye to reality. Personhood is an imaginary status that cannot alter the biological fact of humanity:

And personhood is not a matter of fact. It is not a thing or a concrete property inhering in a thing. It is a status, legal and moral, that we confer as a normative matter at a certain point in human development. Stripped of any reifying (or theifying) premises, personhood is no different in its conceptual structure from another status conferred later in life: adulthood.96

Legal jurisprudence that is disconnected from biological truth is of little worth in the debate over the value of incipient human life. The legal and moral distinction between person and human being must be harmonized if there is to be true equality and fairness among all members of the human family. Justice requires that there be laws to uphold the sanctity of all human life, from the very beginning to the very end of life. Otherwise, no one's life is secure, because law without justice leads to tyranny.

These Supreme Court cases suggest that it is time to think "outside of the box" and directly answer two questions. Are the unborn living human beings from the time of conception? Ought constitutional personhood be conferred on unborn human beings from the time of conception until the time of natural death?

Individual states may amend their state constitutions to legally define a human being as beginning at the time of conception and to confer personhood upon the unborn. Individual states may enact criminal, tort and other laws that outlaw abortion, violence against wanted unborn human beings, embryonic stem cell research, and cloning. Such steps are in conflict with the Supreme Court jurisprudence that denies constitutional personhood to the unborn. Legal challenges will inevitably lead to a decision by the Supreme Court of the United States, and the opportunity to reverse Roe v. Wade will again emerge. If the Supreme Court were to rule that the meaning of person in the Fourteenth Amendment includes the unborn human being, then all states, including those that deny personhood to the unborn, would be compelled to follow suit.

Anticipating this strategy, Justice Stevens in Casey cited legal scholar and philosopher Ronald Dworkin, who rejects the notion that states could "overrule the national arrangement" by declaring that fetuses are persons and ought be conferred constitutional rights competitive with pregnant women.97 According to Dworkin, states do not have the power to increase the constitutional population by unilateral decision and thereby decrease rights the Constitution presently gives to women.98 Justice Stevens omits any reference to the Ninth99 and Tenth100 Amendments to the Constitution, and relies on his reference to Dworkin to assert "as a matter of federal constitutional law, a developing organism that is not yet a 'person' does not have . . . a 'right to life.'"101

Since it is not constitutionally prohibited to interpret the word "person" to include embryos and fetuses, and since the power to confer personhood upon a human being is not assigned by the states to the United States by the Constitution, there is a prima facie case that, notwithstanding any chilling effect created by Justice Stevens, the states may confer constitutional personhood upon fetuses and embryos. This is consistent with the decision of the Supreme Court in Webster v. Reproductive Health Services,102 where a Missouri statute designed to protect unborn children in a non-abortion context was held to be constitutional. It is unrealistic to assume abortion will be totally banned, or that many pro-choice supporters will peacefully accept constitutional reform that grants civil rights to the unborn. What is possible is to elevate the rights of the unborn to equal the rights of those born alive, including pregnant women, so that in any balancing analysis, the right to life of the unborn will ordinarily prevail over the liberty interest of the pregnant woman unless she is in danger of imminent death.

Until the Supreme Court decides otherwise, a woman's right to terminate her pregnancy continues as an exercise of her personal liberty. But there is a limit to personal liberty when its exercise is incompatible with not just the liberty of another, but the life of another person. Assuming one day unborn human beings will be conferred constitutional personhood from the time of conception, the liberty interest of the mother will then ordinarily yield to the life interest of her unborn child. One exception may be when the life of the mother is at risk, such as occurs in an ectopic pregnancy, when the embryo has implanted into the fallopian tube instead of its proper place in the womb. In this situation, both the mother and the unborn human being inside her will die. If the only medical option left is abortion, and the mother's life will be saved, a strong moral case based on self-defense can be made to justify an abortion in this rare situation.103

If constitutional personhood is conferred upon the unborn, a woman's legal reproductive choice arguably ends at the time of conception. Prior to conception, a woman has a right to exercise her liberty and choose any method of contraception if that method does not harm another human being. For example, a condom satisfies this condition, unlike the "morning after pill,"104 which prevents an embryo from adhering to the lining of the uterus, thereby causing its death.105 Laws permitting certain forms of contraception that are not abortifacients are consistent with the holding in Griswold v. Connecticut.106 In every case, however, reproductive choice ends when a woman is pregnant, for she has already reproduced, as she is with child and is a mother.107 Reproductive choice would no longer exist for a woman who has become a victim of rape or contraception that failed.

These consequences of bestowing constitutional personhood on the unborn would cause major upheaval in society, similar to the abolition of slavery and racial desegregation. Historically liberal thinkers have supported legal reform to achieve justice, for inequality and discrimination were viewed as evils that had to be eradicated, even at the high price of sacrificing one's own flesh and blood. Those who today consider themselves liberal thinkers and advocates of equality and the rule of law are compelled to re-examine the question of abortion, for it is at the root of all debates pertaining to the current exploitation of living unborn human beings, and the ongoing deaths of millions of unborn human beings.

IV. The Liberal's Dilemma

Liberal equality at its core promotes the idea that basic political and civil rights belong equally to each person and should be protected by law. These rights have priority in our society.108 That is why the idea of equal opportunity is so appealing in a society that values individual freedom. The prevailing view of liberalism is that peoples fate should be determined by their choices and not by the circumstance they happen to be in.109 But what if your circumstance is one of being an unborn human being destined to be aborted?

Being morally equal to one another is integral to John Rawls' concept of the "Original Position." Central to Rawls' theory of justice110 is the proposition that inequalities are allowed if they "improve" one's initial share of primary goods, such as life and liberty, but are not allowed if they "invade" one's fair share.111 In his hypothetical of the Original Position, people are behind a "veil of ignorance" so that all are similarly situated, without knowing in advance one's future.112 This forces people to choose principles of justice that are fair so that no one is advantaged or disadvantaged by the outcome of natural chance or the contingency of social circumstances.113

Take, for example, a fetus that does not know in advance whether it will be aborted. Behind the "veil of ignorance," a fetus would presumably choose principles of justice consistent with the goal of having an equal opportunity to be born. The same may be said of an embryo that seeks to avoid a fate of exploitation and destruction. Both the fetus and embryo are in the same position as people who entrust their moral equality to the government so they would be protected from being killed by any oppressor. The role of the justice system is to choose principles of justice that promote what individuals need or will want in order to lead the "good life."114 However, to state the obvious, leading the good life is impossible when the principles of justice fail to protect life itself.

Anita L. Allen suggests that a hypothetical fetus may be willing to sacrifice its life and accept its fate of abortion without abandoning its sense of equal worth, "simply through appreciation of the equal worth of the pregnant woman by whom it must be borne and her potential as a person."115 The hypothetical fetus is "justified" in innocently placing its trust and life in its mother "because it does not have to believe itself less worthy of respect than other human beings in order to accept that the law will not compel women to see each pregnancy to term."116

My dispute with Aliens hypothetical is that she does not consider or place adequate weight on the proposition that the basic instinct of the reasonable fetus is to survive. Moreover, it may be the highest duty of the pregnant woman to subordinate her civil liberties and even sacrifice her life out of love for her fetus. How can taking the life of an innocent human being out of necessity ever be justified in order to preserve the personhood potential of the woman from the responsibilities and joys of motherhood?

Lord Coleridge, in finding Dudley and Stephens guilty of murdering a cabin boy on the high seas, feeding on his flesh and drinking his blood, rejected this kind of reliance on the defense of necessity.117 The Court rejected "the choice" made by Dudley and Stephens that the cabin boy would hypothetically agree that their lives were more important than his and would be willing to die so they could carry on as breadwinners for their families:

Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting was chosen.... [I]t is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime.118

There is also an inherent conflict of interest when the decision to abort is left to the sole discretion of the pregnant woman, who stands to "profit," like Dudley and Stephens, by terminating the life of a child.

There is an imbalance of legal, political, economic and social power between a fetus and its mother. This inequality is acceptable so long as in her constitutional exercise of personal liberty to improve her life, the pregnant woman does not abuse her power and extinguish the life of her innocent unborn child that has been entrusted to her protection. Individual conscience and self-regulation does not guarantee this power will not be abused.

If we are morally equal to one another, none of us are inherently subordinate to the will of others or are the property of another.119 Birth marks the point at which the law says we are free and equal. What is stopping us from moving the marker back to the point of conception? Perhaps utilitarian goals such as embryonic stem cell research that can cure disease, cloning that can bring health and happiness, and abortion that can preserve a lifestyle prevail. These rational choices are fine if you are already a person and enjoy constitutional rights. But if you are behind a veil of ignorance in the original position, you might feel differently if you are a non-person and unlucky enough to be sacrificed for the common good of humanity. What if the marker that designates personhood is moved forward from birth and you find yourself a human being with disabilities that is reclassified as a non-person?

Utilitarian philosophy opposes constitutional protection for the unborn whose lives are vulnerable to the selfish needs or wants of constitutional persons. 12? Liberal equality provides an answer to utilitarianism, if the legal system reflects principles of justice that are consistent with protecting the weakest, youngest and most vulnerable members of the human family.

Do not civil libertarians have a duty to oppose immoral and unethical conduct and laws that oppress and enslave members of the human family? This duty becomes more urgent especially when this oppression is legal and generally accepted in society. Consistent with the core values of what it means to be a civil libertarian exists a moral imperative for liberals to speak out and take action to stop the destruction and exploitation of innocent unborn human beings. William Galston, in contemplating opposing views on the issue of slavery that led to the Civil War, stated: "[W]e cannot be indifferent to fundamental (and decidable) questions of right and wrong." 121

In my view, a true civil libertarian is one who believes in the sanctity of all human life, that all living members of the species Homo sapiens are created equal, and that all human beings are persons, from the moment of conception until natural death. An activist government, including a courageous judiciary, is necessary to choose principles of justice to protect all human beings. Professor Robert George of Princeton University identifies what I have termed a true civil libertarian as a "contemporary Rooseveltian."122 Consistent with this view, Pope John Paul II qualifies as "an old fashioned liberal"123 and has in fact been the champion of extending human rights to the unborn.124 Segregationist philosophy that classifies some human beings as persons and others as non-persons is incompatible with this broad view of egalitarian liberty.

On the other side, there are segregationists who also claim to be civil libertarians, but support abortion on demand in the name of women's equality, sexual freedom, tolerance and compassion.125 By their actions, these segregationists advocate inequality and practice discrimination to advance a "quality of life" agenda. They believe in abortion, cloning, and embryonic stem cell research and were instrumental in the creation, promotion and expansion of the non-person caste. Segregationists believe that human beings are not persons until certain developmental criteria are met and that a human being exists only when certain personhood criteria have been satisfied. These pseudo-civil libertarians promote the oppression of unborn human beings, and in the process undermine the fundamental principles of justice central to liberal equality.

Both sides adamantly believe they are right. There appears to be no middle ground. Who is the true liberal?

There are common themes that appear today in this ideological war that date back to the American Civil War when human slavery was legal. Both segregationists who support abortion now and those who supported slavery then, argue certain classes of human beings are not persons, have no constitutional rights to life and liberty and are property to be disposed of or exploited at will. Age, size, physical location, and other grounds have replaced race as permitted grounds of discrimination. Huge financial profits were made from owning plantation slaves. Similarly, abortionists operate medical practices and clinics that profit from providing abortion services and the selling of fetal body parts. Slavery and abortion both attained institutional and legal standing, and won judicial approval from the Supreme Court of the United States. All segregationists reject the opposition of desegregationist liberals who are despised for trying to impose their own morality on others, claiming this is interference with privacy and personal freedom in a democratic and pluralistic society.

The violence of abortion is accepted by segregationists as a cultural cost necessary to promote the quality of life of persons over the sanctity of life of non-persons. Language is used to dehumanize members of the human family by utilizing derogatory or clinical terms to depict non-persons as property or as something less than human. For example, "product of conception" can mean to a pathologist the physical remains of an aborted human being. Focusing the argument on choice avoids deciding the morality of the underlying action of enslaving a fellow human being or killing an unborn child.

On September 22,1862, when President Abraham Lincoln issued his Emancipation Proclamation,126 his words did not free any slaves until the Union later won the Civil War and the Thirteenth Amendment127 to the Constitution formally freed the slaves on December 18, 1865. On January 14, 1988, President Ronald Reagan issued his Personhood Proclamation,128 which has not yet accomplished its intended result to grant constitutional personhood and the right to life to the unborn, from the moment of conception to the time of natural death. So far, there has been no second Civil War or Right to Life Amendment to the Constitution, but there has been large scale civil disobedience, court battles, RICO civil actions, political battles over judicial appointments, political party polarization, violent crimes against abortion providers, restrictions against free speech, and a generally divided nation on the issue of abortion.129 If President Lincoln is right that a nation divided against itself cannot stand,130 what will the future bring, if the status quo merely prolongs the inevitable victory by one side or the other?

Civil libertarians have championed the cause for the abolition of the slavery of the African-American, promoted the equality of women, fought for the abolition of the death penalty for convicted criminals, and campaigned for civil rights, gay rights, animal rights, environmental rights, and for the elimination of workfare that enslaves the poor. In all these efforts, civil libertarians have portrayed the underlying value of human, animal and biological life, rejected all forms of slavery, and assumed the moral obligation to respect those vulnerable interests in our society who cannot effectively overcome oppression and exploitation without help from the rest of us. Is it not consistent for civil libertarians to champion the cause of the poorest, weakest, and most vulnerable members of our society?

Unlike a human being who is a constitutional person, embryos and fetuses have no constitutional protection from being destroyed, experimented upon or cannibalized for parts. Cloning and embryonic stem cell research represent modern forms of human exploitation by the powerful over the powerless and is no different in principle from traditional slavery rooted in ancient history. Slaves were historically used to achieve personal, societal, commercial and political goals. Slaves could be forced to perform tasks and undergo personal sacrifices to advance the civilization of past cultures. Slaves were depersonalized so they could be forced to do things that a citizen had a right to refuse. The historical arguments for slavery are the same arguments that are used today to justify the utilitarian exploitation of unborn human life.

Current regulations govern the abortion industry, just as once slave owners had to contend with laws that regulated the treatment of slaves.131 A pregnant woman may now kill her fetus with greater liberty than an owner of African-American slaves who was not at liberty to arbitrarily kill his human slave.132 An African-American slave was "not only property," for that slave is also "entitled to the humanity of the Court."133 This way of thinking about slaves is similar to Justice Blackmun's thinking that state interest in potential life is a "legitimate interest grounded in humanitarian or pragmatic concerns."134

Consistency dictates that civil libertarians will choose to fight on the side of respecting unborn human life. Abortion is at its heart a civil rights issue.135 To defend abortion today is in principle the same thing as defending the slavery of native-born African-Americans who were once denied citizenship and labeled as non-persons.

Civil libertarians who believe in equality are morally compelled to speak for those who cannot speak for themselves to ensure all human beings are treated as ends and never as a means to an end. Once the human family is divided into persons and non-persons, every human being is at risk to become a non-person.136 The power to destroy other human beings leads to greater abuses as people become desensitized to immoral conduct. The killing and exploitation of the unborn are, at the most basic level, acts of violence. Everyone, including scientists, businessmen, politicians, judges, clergy, voters, doctors or patients, who benefits from, or does any harm to Depersonalized Humans, is morally culpable. "Anyone who commands, directs, advises, encourages, prescribes, approves, or actively defends doing something immoral is a cooperator in it if it is done and, even if it is not in the event done, has already willed it to be done and thus already participates in its immorality."137

V. Equality and Self-Evident Truths

What is truth? Are there "self-evident truths"? Are "all men are created equal"? Are all men "endowed by their Creator with certain inalienable rights"? Do these inalienable rights include at a minimum, the rights to "life, liberty and the pursuit of happiness"? Are these words mere expressions of wishful thinking or discoverable objective truths? Did Thomas Jefferson, author of the Declaration of Independence know the injustice that is caused by subjective standards pronounced by a tyrannical King who ruled by law and an objective standard based on moral standards derived from the Supremacy of the Judeo-Christian God that is the foundation of the rule of law? I believe he did, as did those 55 other delegates from various American colonies that risked their lives and property who also signed this revolutionary document. It mattered to Jefferson that America was not governed by moral standards inherent in the rule of law. It was worth the price of treason to the British Crown.

Thomas Jefferson used the moral authority of natural law to assert for all time that all members of the human family are created equal and possess the fundamental right to life.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.138

The revolutionary ideas expressed in the Declaration of Independence were novel. The dissolution of political ties between the English Crown and the Colonies was necessary to achieve separation and equality to which Americans were entitled by the "Laws of Nature and of Nature's God." It is the "Creator" which endows "all men" at the point of creation with equality and the self-evident rights to life and liberty. Thus the source of basic human dignity and the eternal inalienable rights to life and liberty is found in natural law from the moment of creation. These rights are a gift from God, an indispensable part of human nature, and a sacred trust of governments to safeguard from abuse. Every human being is regarded with equal worth, in a society where law is founded upon and infused with Christian morality. What is this Christian morality?

At the heart of Christian morality are the teachings of Jesus. The Pharisees139 tested Jesus by asking what is the greatest commandment in the Law. Jesus answered: "Love the Lord your God with all your heart, with all your soul, with all your mind. That is the greatest commandment. It comes first. The second is like it: Love your neighbor as yourself. Everything in the Law and the prophets hangs on these two commandments."140 Jesus gave a new commandment: love one another; as I have loved you, so you are to love one another.141 The only thing that matters is love. God himself is love.142 The greatest love is to give up one's own life to save the life of another human being.143 Love is not a matter of words or talk; if it is genuine, it is demonstrated by actions.144 "Love means following the commands of God,"145 to be "our rule of life."146 Love in action is proof Christians belong to the realm of truth.147

Justice is love in action. The history of the common law and its development suggests that the conception of justice inherited by America from England is the Christian teaching of love.148 For example, in Donoghue v. Stevenson, Lord Atkin took the Christian commandment to love your neighbor as a legal duty extending a duty of care to ones neighbor.149 Principles of justice are thus discovered byjudges in the common law and are thus derived from the Christian commandment of love. Natural justice is not automatically recognizable by anyone, but by those whose thinking is imbued with habits of Christian thought and behavior passed down through generations. The principles of natural justice found in the English common law "has been molded for centuries byjudges brought up in the Christian faith."150

The Christian religion has always stressed the importance of absolute truth.151 Jesus taught, "I am the way; I am the truth and I am life."152 The Holy Spirit, known as the Spirit of Truth, was promised by Jesus to be with his believers forever.153 God's word is truth, and Christian believers are consecrated by the truth.154 To establish truth and justice in a country, there must be rule of law founded upon a religious and moral foundation. Lord Alfred Denning, considered by many to be the greatest English jurist in the past century, observed: "Religion concerns the spirit in man whereby he is able to recognize what is truth and what is justice; whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs. If religion perishes in the land, truth and justice will also."155

President George Washington too knew this truth, for he reminded his audience in his Farewell Address of 1796 that a religious and moral foundation to law was vital to achieving justice, good government and political success:

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens. The mere Politican, equally with the pious man ought to respect & to cherish them. A volume could not trace all their connections with private & public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the Oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure-reason & experience both forbid us to expect that National morality can prevail in exclusion of religious principle.

Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of Free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric.156

If all men are created equal, then arguably unborn human beings, from conception, the time of their creation, are politically and legally endowed with the inalienable rights of life, liberty and the pursuit of happiness.157 On this basis, the right of the unborn to life (no abortion, no harvesting of embryonic stem cells, no cloning), liberty (the right to be left alone, freedom from harm) and the pursuit of happiness (the right to autonomy, self-determination, development of full potential) is assured. Human beings are endowed at creation with an inalienable right to life. This natural right cannot be removed or conferred, as it is the common heritage of human beings that all are created equal. It can be discovered in existing constitutional law or explicitly restated as a constitutional amendment.158

I agree with the late Professor Charles L. Black Jr. that the doctrines of the Declaration should be taken to have the force of constitutional law.159 The words of the Declaration "demolish one legal authority and set up another" and as such, are "constitutive words" and "the root of all political authority among us, of all legitimate exercise of power."160 Like Professor Black, I believe, the "inalienable rights" at the heart of the Declaration were formally incorporated into the Constitution in 1791 with adoption of the Ninth Amendment,161 which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."162 Thus, the inalienable rights to life, liberty and the pursuit of happiness are rationally consistent with the text of the Ninth Amendment that refers to the rights retained by the people. In addition, according to Professor Black, the inalienable rights to life, liberty and the pursuit of happiness are the "certified cardinal values of our political morality."163

The legal grievances that led to the reasons for the American War of Independence offer hope that the United States is a nation founded upon the rule of law, and that at the root of the American Constitution is the objective truth that human beings and persons are one and the same, and are indistinguishable from one another. For it is only when there is harmony and proper alignment in the meanings of human being and person will our universe be free of discrimination and inequality which inevitably result so long as objective truth is ignored. If all of humanity is created equally at conception, and if each member of the human race has the inalienable right to life, liberty and the pursuit of happiness, there is no place in todays brave new world164 for the extinguishing of embryonic and fetal life.165

There is a link between freedom and truth:

When freedom is detached from objective truth it becomes impossible to establish personal rights on a firm rational basis; and the ground is laid for society to be at the mercy of the unrestrained will of individuals or the oppressive totalitarianism of public authority . . . When God is denied and people live as though he did not exist, or his commandments are not taken into account, the dignity of the human person and the inviolability of human life also end up being rejected or compromised.166

Until there is a merging of the meanings of person and human being, resulting in harmony between science and the law, the current dissonance between truth and fiction will increase, rather than diminish. The cruel paradox will continue that as science adds more convincing proof that human life begins at conception, judges will continue to decide that healthy babies in healthy mothers may be killed with legal immunity as a matter of choice.167 It is law that must conform to the objeclive truth of science, so the meanings of person and human being are identical in both law and science.168

VI. No Justice Is Possible Without Morality

In his letter from the Birmingham Jail, Dr. Martin Luther King Jr. stated:

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly. . . . We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.

[T] here are two types of laws: There are just and there are unjust laws. I would agree with Saint Augustine that "An unjust law is no law at all.". . . .

Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the Jewish philosopher, segregation substitutes an "I-it" relationship for an "I-thou" relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. . . . Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.169

I adopt Dr. King's idea that, "A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law."

St. Thomas Aquinas held a similar view, distinguishing between just and unjust laws that either conformed to the natural law, or were corruption of the law:

Human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence. . . . Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is really not a law but rather a corruption of the law.170

Thomas Aquinas believed when a law is contrary to reason it is unjust and lacks moral authority.171 If a law is "at variance with natural law, it will not be law, but spoilt law."172

Lord Denning observed, "[a]lthough religion, law and morals can be separated, they are nevertheless still very much dependent on each other. Without religion there can be no morality: and without morality there can be no law."173 Professor Patrick Devlin warned of impending social disintegration when law is divorced from Jud?o-Christian morality.174 Lord Howe agreed, "while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure. . . ."175

I believe that the legal segregation of unborn human beings from the rest of the human family degrades and depersonalizes the humanity of the unborn, stigmatizing non-persons as inferior to persons, who assert legal but not moral superiority over non-persons. This legal segregation substitutes an I-it relationship between a mother and her unborn child, relegating her baby to the status of a thing that may be killed with impunity. As legally inferior human beings, non-persons are at the mercy of those legally superior human beings who literally hold an arbitrary power of life or death over the unborn. Civil liberty is interpreted by persons as natural liberty-unrestrained freedom to exercise ones absolute will even if it is detrimental to other human beings and society-at-large. This kind of corrupt thinking is repugnant to a just society governed by the rule of law where every human life is treasured and unborn babies are welcomed as persons.

VII. Defining the Rule of Law

I define the "rule of law" as government by laws that people are willing to obey because the laws are inherently just. The ideal of the "rule of law" is to live in a democratic society that places constitutional limits on the power of government, permanently protects inalienable human rights and fundamental freedoms from undue encroachment, and provides equality before laws administered by an independent judiciary. I define "rule by law" as the antithesis of the "rule of law," meaning to be governed by unjust laws in any society, including democratic societies, where the government may exercise arbitrary powers and may abridge at will inalienable human rights and remove from constitutional protection the inalienable civil rights of any human being, such as creating a class of non-persons. The main difference between these opposite concepts is that justice is the defining characteristic in a society governed by "rule of law," and deferential coerced obedience is the defining characteristic in a "rule by law" society. Without a moral component that squares with the eternal and natural law of God that objectively sets up a standard of righteousness, there can be no rule of law, but the tyrannical imposition of rule by law. A caution is in order: my definition of the rule of law is not universally accepted, for as we will see further in our discussion, there are other definitions that are accepted by judges and legal scholars.

Linkage of the rule of law and the supremacy of God is foundational for the flourishing of truth and justice.176 Truth and justice do not exist in a vacuum; they exist in a society of human beings, organized into a political state. Unfortunately, a state may become tyrannical, so that truth and justice can disappear or be stifled. The solution is respect for every human being as a person. The person becomes paramount, not the state. The state exists for the benefit of every human being; human beings do not exist for the benefit of the state.

America was founded upon the rule of law, as I understand it, anchored in the common law infused with Christian morality,177 but has of late lost her moral compass, no longer being a nation of religious people thirsting for universal justice. The resolution to the current cultural, political, and legal war over abortion, and the derivative battles over embryonic stem cell research and cloning, is found in the universal truth anchored in the concept of the rule of law that we are all created equal and that we all possess an inalienable right to life and liberty. Explicitly interpreting "person" in the Fourteenth Amendment to mean all human beings, including the unborn, from the time of conception to the time of natural death, will fulfill the promise and vision of the signers of the Declaration of Independence. For there can be no rule of law, so long as the word "person" is legally manipulated to exclude and segregate classes or individuals from the human family, and discriminate against legally created castes in order to legally justify the killing or enslavement of human life. Not until then will there exist the rule of law in America.

VIII. Mislabelling Rule by Law as the Rule of Law

The United States Supreme Court in casey displayed its fundamental disagreement with my definition of the rule of law, choosing instead the doctrine of stare decisis over justice. Justice O'Connor equated abortion law jurisprudence built upon a questionable substantive due process right of privacy178 and now personal autonomy179 to the "rule of law:" "The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade, it is a rule of law and a component of liberty we cannot renounce." 180

Whether conceived as "judicial legislation"181 or a "judicially derived rule"182 a constitutional right to an abortion is not the same thing as the "rule of law" as I have defined it, but its antithesis. The act of abortion, in and of itself, is repugnant to the rule of law. That is why many people intuitively refuse to accept pronouncements by the Supreme Court in favor of abortion as legitimate. A judicial declaration that there is a constitutional right to an abortion, in the face of undisputed evidence that abortion unjustly kills innocent unborn children, is actually rule by law. From the viewpoint of the unborn, there is no moral component to the license to abort. That a mother may arbitrarily exercise her liberty and take the inalienable life of a very young human being who belongs to the class of non-persons is not equality before the law. Coercion and force are the hallmarks of rule by law.

The rule of law cannot exist when law is divorced from morality. Yet that is exactly what the Supreme Court accomplished in casey, by voiding state criminal laws that prohibited immoral conduct (abortion) by elevating the personal liberty of one class of human beings (mothers) over the life and liberty of another class of human beings (unborn children). Justice O'Connor wrote, "Our obligation is to define the liberty of all, not to mandate our own moral code."183 The rule of law is thus ousted in that "realm of personal liberty where the government may not enter."184 Judeo-Christian moral and ethical beliefs, once the very foundation of the common law for hundreds of years, will no longer rationally justify criminal laws that affect individual autonomy and the intimate choices of individuals that touch on personal dignity.185 Individual members of the class of persons who have matured in their personhood can define their own meaning in life, and choose their own values, whether they are moral or not. The decision to bear or not bear a child that has been conceived186 is one of those choices that are at the heart of liberty:

[T]he most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.187

In commenting on the above passage, Justice Scalia recognized that the creation of a zone of personal privacy, free from legislated morality, to legally engage in immoral conduct that goes beyond sexual preferences to include the killing of human beings, destroys the rule of law: "I have never heard of a law that attempted to restrict ones 'right to define' certain concepts; and if the passage calls into question the governments power to regulate actions based on one's self-defined 'concept of existence, etc.,' it is the passage that ate the rule of law."188

One characteristic of a rule of law society is that moral choices that promote justice, respect and the dignity of all human life lie at the heart of all legislation and judicial decisions. This is no longer the case in American society, for in its political goal to legalize abortion, the Supreme Court attained the result it wanted, but at the cost of the rule of law. The precedent set in the abortion cases validates new principled constitutional attacks upon laws that presently outlaw same sex marriage, polygamy, bigamy, prostitution, adult incest, bestiality, assisted suicide and active euthanasia.189 In a new age of relative morality, there are no standards of right and wrong based upon Gods laws. This means the beginning of "the end of all morals legislation,"190 where individual liberty prevails over the collective wisdom of elected representatives who espouse moral values.

When the Supreme Court wants to, it can act in the name of the rule of law. For example, in Romer v. Evans, it has purged a discriminatory state constitution that targeted as a class, politically powerful gay men and women.191 Amendment 2 of the Colorado state constitution prohibited all legislative, executive or judicial action designed to protect gays and lesbians as a class. Justice Kennedy, writing for the majority, invoked the rule of law to invalidate Amendment 2. First, Justice Kennedy noted that the target class was identified by a single trait, sexual orientation. secondly, he noted that it was this identified single trait that disqualified an entire class of human beings form legal protection and equality before the law. This was unprecedented, and called for reversal, for Amendment 2 created a caste system of human beings that is foreign and repugnant to the notion of the rule of law:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance . . . . A law declaring that in general it shall be more difficult of one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. . . .

"If the constitutional conception of 'equal protection of the laws' means anything, it must at very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."192

The most odious aspect of the offending state constitutional amendment was that it was a status based classification of persons designed to make one group of human beings unequal to everyone else: "A State cannot so deem a class of persons a stranger to its laws."193 "Class legislation ... [is] obnoxious to the prohibitions of the Fourteenth Amendment ..."194

Romer is instructive, for it compels us to ask analogous questions about the plight of the unborn human being. Are not embryos and fetuses, being unborn, also identified by this single trait? Are not unborn humans also unable to seek legal protection because they fall outside the judicial definition of "person"? By virtue of their age and condition, are not unborn human beings unable on their own to seek the Courts assistance? Are not unborn human beings, as a class of unpopular people, the target of harm? Is not the classification of unborn human beings to depersonalize them as a matter of legal definition a deliberate choice to make them unequal and so deprive them of legal protection?

Yet when the Supreme Courts wants to create a caste system, as it did in Roe v. Wade and casey, it has done so by depersonalizing the politically powerless class of unborn human beings. Justice Stevens in casey accounts for the predicament in which the unborn human being is placed, laying the responsibility upon all the members of the Supreme Court, for not one Justice has ever declared that an unborn human being is a "person" within the meaning of the Fourteenth Amendment:

The Court in Roe carefully considered, and rejected, the State's argument "that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." 410 U.S. at 156. After analyzing the usage of "person" in the Constitution, the Court concluded that that word has application only postnatally." Id., at 157. Commenting on the contingent property interests of the unborn that are generally represented by guardians ad litem, the Court noted: "Perfection of the interests involved, again, have never been recognized in the law as persons in the whole sense. Id., at 162. Accordingly an abortion is not "the termination of life entitled to Fourteenth Amendment protection." Id. at 159. From this holding, there was no dissent, see id., at 173; indeed, no Member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a "person" does not have what is sometimes described as a "right to life."195

For these reasons, Justice Stevens stated the States obligation to protect the life and health of the mother has to take precedence over any duty to the unborn, which is literally defined out of constitutional existence. Anticipating that some States might try to return the unborn back into constitutional existence, Justice Stevens turned to the arguments of Professor Ronald Dworkin, to reject such possibility: "If a fetus is not part of the constitutional population, under the national constitutional arrangement, then states have no power to overrule that national arrangement by themselves declaring that fetuses have rights competitive with the constitutional rights of pregnant women."196

To reverse Roe v. Wade and casey, all that is needed is to equate unborn human beings with born human beings. The unborn will remain unequal until a majority of the members of the Supreme Court rules unborn human beings are "persons" within the language and meaning of the Fourteenth Amendment to the U.S. Constitution. When that defining moment arrives the case for abortion collapses.197

Until then, tyranny governs unborn human beings, who now live in a world of slavery and death, subject to the supreme arbitrary will of a master class, which in matters of personal autonomy, is free from any law imbued with moral principles.198

Justice O'Connor suggested the Supreme Courts legitimacy would be seriously weakened to admit it was wrong in Roe v. Wade and overrule it. It is conceivable that a reversal would throw into disarray the status quo, confuse people who just abide by the law and possibly create guilt in those who once had doubts about aborting their children, but resolved them by relying on the wisdom of the Supreme Court. Justice O'Connor refused to overrule Roe v. Wade not only because of reasons established pertaining to judicial precedent, but because "it would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law."199 O'Connor correctly observed that the Supreme Court's power lies in its legitimacy as perceived by the people. Overruling Roe v. Wade, according to Justice O'Connor, would damage much more than the Court's legitimacy-it would damage the rule of law.200

Nothing could be further from the truth. The point of this discussion is to justify the overruling of Roe v. Wade and Cosey to restore the Supreme Court's legitimacy and to correct Fourteenth Amendment jurisprudence by equating "human being" with "person" to bring American constitutional law into conformity with the rule of law. Legitimacy is derived by comporting to the Constitution, and not by acting as a non-elected super-legislature, caving in to political pressure or exercising personal predilections.201

Our next task is to discover what the rule of law is, why morality is inseparable from it, and to understand how the current absence of the rule of law threatens judicial integrity and social harmony.

IX. The Genesis of the Rule of Law in America

The origin of the rule of law in American constitutional law may be traced back to June 15, 1215 when King John of England needed to appease his Barons at Runnymede, as they were angry with him over unfair taxes, abuse of royal power, and unjust laws. Under duress, King John submitted to the Great Charter, known as the Magna Carta, and thereby surrendered some of his royal perogative and sovereign power.202 This event marked the commencement of a government of laws, and not of men. It was a modest beginning to the separation of powers, guarantees of political liberty, limitations on the authority of government officials, and legal reform consistent with justice. The absolute power of the English monarch was forever lost, for in England there was now the humble beginning of an early form of rule by law.

The great English barrister and jurist, Lord Edward Coke, an advocate of the rule of law, greatly influenced the development of American constitutional law.203 Over the course of his life, Lord Coke, in his quest for justice, fought for the following principles: no human being may by sheer will and might govern another human being, for both were equal under the law and under the sovereign authority of God; an unjust law (statute) violating the common law was no law at all, and may be declared void by a court of law (Dr. Bonham's case, decided in 1610);204 the law must be a certain and reliable guide and preserve fundamental liberties from arbitrary deprivation (stability and freedom under law); and no one on order of the King may be indefinitely detained without charge (origin of habeas corpus). These were just four significant contributions he made to the evolving concept of the rule of law.

In his capacity as Chief Justice of the Court of Common Pleas, Coke fearlessly asserted the independence of the judiciary, much to the dismay of King James I, who expected judges to act as submissive servants. Coke's loyalty to the English Crown was not in question, for he had previously served as Attorney General during the reign of Queen Elizabeth I, and had successfully prosecuted Sir Walter Raleigh for treason. After the death of Elizabeth I, King James was publicly asserting rule by law, equating himself with God, claiming it was his divine right to substitute his reasoned judgment for judicial decisions he disagreed with. On November 13, 1608, Lord Coke confronted and rebuked the King, quoting Bracton, saying, "The King ought to be under no man, but under God and the law."205 The King was predictably furious. The King not only believed he was above the law; he believed he was the law.206

Attorney James Otis Jr. knew the difference between rule of law and rule by law.207 Following the death of King George II in 1760, Writs of Assistance became vigorously exercised in the colonies. Otis delivered a legal submission on February 24, 1761, in the council chamber of the Old State House in Boston, in defense of his clients, Boston merchants, who challenged the unchecked legal authority of customs officers to search for smuggled goods. Otis condemned Writs of Assistance as unconstitutional, contrary to natural law and human rights. He declared that the power of these general search warrants was contrary to the rule of law, for a mans home was his castle. To search a persons home was an invasion of privacy and a threat to individual liberty, for writs of assistance were unchecked governmental authority exercised at the suspicious whim and mere will of the executive, who did not require any legal judicial standard to be met, such as probable cause under oath. In the audience was John Adams, who recalled Otis referred to the colonies as "my country" and inspired the flame of independence to burn in the heart of patriots.

In 1764, Otis published The Right of the British Colonies Asserted and Proved. In the section entitled "Of the Natural Rights of Colonists," he denounced the institution of slavery, stating, "The colonists are by the law of nature freeborn, as indeed all men are, whether black or white."208 He explained slavery was contrary to the rule of law and inseparable from the supremacy of God:

Does it follow that 'tis right to enslave a man because he is black? Will short curled hair like wool instead of Christian hair, as 'tis called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of slavery be drawn from a flat nose, a long or a short face? Nothing better can be said in favor of a trade that is the most shocking violation of the law of nature, has a direct tendency to diminish the idea of the inestimable value of liberty, and makes every dealer in it a tyrant, from the director of an African company to the petty chapman in needles and pins on the unhappy coast. It is a clear truth that those who every day barter away other men's liberty will soon care little for their own.

Let no Man think I am about to commence advocate for despotism, because I affirm that government is founded on the necessity of our natures; and that an original supreme Sovereign, absolute, and uncontroulable, earthly power must exist in and preside over every society; from whose final decisions there can be no appeal but directly to Heaven. It is therefore originally and ultimately in the people. I say supreme absolute power is originally and ultimately in the people; and they never did in fact freely, nor can they rightfully make an absolute, unlimited renunciation of this divine right. It is ever in the nature of the thing given in trust, and on a condition, the performance of which no mortal can dispence with; namely, that the person or persons on whom the sovereignty is confer'd by the people, shall incessantly consult their good. Tyranny of all kinds is to be abhor'd, whether it be in the hands of one, or of the few, or of the many.-And tho' "in the last age a generation of men sprung up that would flatter Princes with an opinion that they have a divine right to absolute power"; yet "slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that 'tis hard to be conceived that an englishman, much less a gentleman, should plead for it."209

Otis continued, arguing that legal precedent was not a justification for tyranny to persist when law is in conflict with the laws of nature given by God. Where law deviates from truth and justice, it is the duty of the electorate in a democracy to exercise the right to vote and remove any tyrannical government that rules by law:

But if every prince since Nimrod had been a tyrant, it would not prove a right to tyrannize. There can be no prescription old enough to supersede the law of nature, and the grant of God almighty; who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please. . . . The same law of nature and of reason is equally obligatory on a democracy, an aristocracy, and a monarchy: Whenever the administrators, in any of those forms, deviate from truth, justice and equity, they verge towards tyranny, and are to be opposed; and if they prove incorrigible, they will be deposed by the people, if the people are not rendered too abject. Deposing the administrators of a simple democracy may sound oddly, but it is done every day, and in almost every vote.210

It was this same quest for the rule of law that fueled the passion and moral outrage by those whom Otis motivated that led to the Declaration of Independence. King George III ruled by law and revolution was the result. The rebellion was morally justified because the God given inalienable rights of life, liberty and the pursuit of happiness belonged to the people and rule by law had deprived Americans of natural justice and just laws. The situation had become so desperate that patriot Patrick Henry declared, "Give me liberty or give me death."211

X. How Human Slavery Ruined the Rule of Law

The hope of replacing the rule by law imposed by the British Crown with natural justice bestowing upon all Americans the inalienable rights of life, liberty and the pursuit of happiness was replaced by a pragmatic compromise that was necessary to preserve a fragile union that was divided on the issue of human slavery. The Constitution adopted in 1787 expressly provided for the continuation of the slave trade. The importation of African slaves was to continue until 1808, fugitive slaves were to be captured and returned to their owners, and the apportionment of representatives to Congress counted three-fifths of each slave to allocate representation by population. In the days leading up to the Civil War, representatives from the State of Georgia admitted that, "The question of slavery was the great difficulty in the way of the formation of the Constitution."212 Without the inclusion of the fugitive slave clause, South Carolina would have never agreed to the Constitution.213 Rule by law thus continued after 1787, for legal equality did not extend to human slaves, who legally remained the property of their master.

It is well known that the Declaration of Independence, the Constitution of 1787, and the Bill of Rights were political compromises that were blatantly hypocritical of the noble words proclaiming the promise of universal equality in the Declaration of Independence. On the 200th anniversary of the United States Constitution, a descendant of slaves, former Supreme Court Associate Justice Thurgood Marshall delivered an address celebrating the Constitution as a living document, and not for the racist and discriminatory document it was intended to be.214 Political compromise resulted in the omission from the final draft of the Declaration of Independence criticism of the King of England for suppressing legislative attempts to end the slave trade and for encouraging slave rebellions.215 Once the revolution succeeded, the southern states made a deal with the northern states that resulted in the granting of power to Congress to regulate commerce in exchange for the right of the southern states to carry on the slave trade. Both the north and the south prospered by this arrangement.216 Free white males constituted "We the People," for slaves and women were denied civil rights and equality before the law. T