The Constitution Explicitly Protects the Unborn
By Dave Leach The Covenant News ~ January 09, 2010
Fifth in a series of excerpts from the pro se brief which Scott Roeder is considering submitting, to answer how the Necessity Defense justifies his shooting of Wichita’s late term abortionist, George Tiller, May 31. Judge Wilbert held a hearing December 22 whether to order Scott not to say a word to the jury about the only contested issue of the trial, and Scott’s only defense: the Necessity Defense. Judge Wilbert’s email address is wwilbert@dc18.org. Scott’s trial is scheduled for January 11. Future installments: The Theory that Stopping Kansas Abortions can’t be Justified because Abortion is Legal Originated in a Grammatical Misunderstanding in 1993 <> Not Even Roe Says Whether Abortion is Genocide is “Irrelevant” <> Imminence and Alternatives.
None of the other arguments in this brief challenge the legitimacy of Roe v. Wade. In fact, they use it to show that juries, not judges, have jurisdiction to weigh the Necessity Defense, which is based on a fact question. (Juries are supposed to be “judges of the facts”.) Even the argument that Laci and Conner’s Law caused Roe’s “collapse” in 2004 accepts Roe’s legitimacy until that time. But the following argument challenges Roe as unconstitutional from its inception.
The Constitution was written for “ourselves and our posterity”, according to its preamble. Thus half of the purpose of the Constitution is to protect the rights of “our posterity”.
Here is the Preamble – the introduction to the U.S. Constitution: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
“Posterity” means “Descendants; children, children’s children, &c. indefinitely” according to Noah Webster’s original 1828 dictionary. This obviously includes children already born, children conceived but not yet born, and children not yet conceived. “Liberty” obviously presumes life, since life is required before “the blessings of liberty” can be of any benefit.
All the benefits of the Constitution are to be as fully conferred upon “our posterity” as upon “ourselves”, according to this preamble. Just as we “ourselves” have the right not to be dismembered by government-protected doctors without due process of law, even so our posterity have that right. Just as we “ourselves” have the right to defend ourselves and to receive assistance doing so, even so our posterity have a Constitutional right to receive assistance in their self-defense against those who would kill them without due process of law.
This requirement of Due Process of Law is not satisfied by a law saying a certain group of people may legally receive “cruel and unusual punishment” who are not even charged with a crime. Due process of law means fairness. It requires laws applied equally to all. Not just to all who are born, but, as the Preamble specifies, those also who are unborn.
Roe finds the mother’s right to an abortion in the “penumbra” of the Constitution. But found in the clear words of the very purpose of the Constitution are the rights of our “posterity” to not be slain without Due Process of Law, and to self defense from the doctors hired by their mothers.
It does not weaken this argument to observe that the Preamble does not specify that our “posterity” are “persons”, “persons in the whole sense”, “homo sapiens”, or “human beings” while in the womb. Even if our “posterity” were in fact, and “legally cognizable” as, tomatoes during their period of gestation in the womb, they enjoy Constitutional Protection from the time they enter it, according to the Preamble.
“A common defense” (for “our posterity”) is an explicitly listed purpose of the Constitution’s Preamble. In addition to meaning military readiness. it also means, insofar as federal involvement is appropriate, defense against criminals, and against any who would do violence against “ourselves and our posterity”. If we “ourselves” have a right to be assisted in our self defense when a Barbarian attacks us with a tomahawk while we are helpless on our sick bed, “our posterity” have a right to assistance when a doctor attacks them with a scalpel, while they are helpless in the womb. Just as I have a Constitutional right to defend you as you would defend yourself if able, I have a Constitutional right to defend “our posterity” not yet born.
If it is argued that aborted babies are not “our posterity” because they are aborted before they can be born and take their place in our family trees, there are two answers: (1) It is common to recognize stillborn babies on tombstones, and miscarried babies are often given names, grieved over as lost family members, and noted in family records. Even George Tiller sold “baptisms” of and funerals for his victims; (2) the unfortunate fact that some of our posterity will be murdered does not erase them from being our posterity. All of our posterity will die, (unless Jesus returns first), which does not cross them off our family trees.
Roe v. Wade did not deny that the unborn are “persons in the whole sense”, but said whether that is true was unclear to “the judiciary”; while the Preamble could not say more clearly that the unborn have the same Constitutional Rights which we “ourselves” have. The clear statement of the Preamble is challenged by a murky statement in Roe. A clear statement should not be counted as challenged by an unclear statement, and the Preamble should not be counted as overturned by a “prenumbra” so obscure that it took America’s greatest legal minds just under 200 years to discover. If any challenge to the Constitution can be imagined, a huge burden of proof must be demanded of its challenger. But this challenger, Roe, offers no proof whatsoever, being “in no position to speculate” whether the unborn have the Constitutional rights established by the Preamble.
Roe conflicts with the Constitution, not backed by any law, reasoning, or evidence, but apparently was in ignorance of the conflict. Since stare decisis favors laws which have been on the books the longest, and the Preamble is six times as old as Roe v. Wade, Roe must now be acknowledged as never having been Constitutional.
NEXT: Due Process is Denied, when the Only Contested Issue of a Jury Trial is Hidden from the Jury