September 12, 2008
By Michael Farris

Michael P. Farris, graduated magna cum laude, with a degree in political science, from Western Washington University (formerly Western Washington State College). He received his Juris Doctor and was an honors graduate of Gonzaga University School of Law in Spokane, Washington.

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Barack Obama continues to struggle with the question of when a baby possesses human rights - including the right to life. At first, he said that the question was above his pay grade. Now, he says that this response was "too flip." Instead, he should have acknowledged the difficulty of this "theological" question. He is just not certain of when the soul enters the child.

Mr. Obama is a Harvard-trained lawyer, and he should know better. We are not voting on whether Obama should be installed as the pastor-in-chief. The relevant question is not theological - but, legal and historical.

The 14th Amendment says that "no person" shall be "denied life". "without due process of law." The legal issue that must be answered is: Is an unborn child a "person" within the meaning of the law?

Despite the self-induced confusion expressed by the Supreme Court in Roe v. Wade, the legal answer to this question is really quite easy.

Does a child in the womb have legal rights that are only accorded to persons in other contexts? The answer is clearly "yes." If an unborn child is injured in a car wreck, that child has the rights we accord to all other humans to recover damages for his or her injuries. An unborn child has rights in inheritance law and other similar legal situations.

If an unborn child is killed by an assailant with a gun shot to the mother's abdomen, the killer is prosecuted for murder.

Some might point out that these might be statutory rights that point to the humanity of the unborn child, but that this is not the same as a constitutional right to life for the unborn.

Even this is a relatively easy question - if we follow the original meaning of the Constitution, but this requires us to pose the precise legal question. In 1868, when the 14th Amendment was ratified, was an unborn child recognized as a "person" for the purposes of protecting their right to life?

The following historical facts can be discovered from the majority opinion in Roe v. Wade - a source that is surely unassailable for those who take the pro-choice position.

A study on the abortion issue undertaken by the American Medical Association was begun in 1857. Its final report, undoubtedly delayed by the Civil War, was released in 1871. It took a strong position that the unborn child was entitled to legal protection as a human and urged that it be generally unlawful to perform an abortion. Thus, we have contemporaneous evidence that the scientific consensus was that this was a child whose life deserved legal protection afforded to all other persons.

But what about the legal status of unborn children? The Roe opinion's first paragraph gives us the general state of the law in 1868. It says that the Texas law in question in Roe "was typical of those that have been in effect in many states for approximately a century." In fact, the Texas law was enacted in 1854. The vast majority of the states had similar laws in place in this era - the era of the 14th Amendment.

Thus, both in medicine and law an unborn child was considered a "person" for the purpose of their right to life in this time frame. The original meaning of the term "person" is defined by this historical time frame and no other. Even though the Supreme Court looked at ancient societies and modern views on the abortion issue, none of those are relevant to the legal issue at hand. The legal issue is confined to a proper understanding of the term "person" in 1868.

All other eras of history may be interesting if we are debating theology or philosophy. But to evaluate the human rights of the child, the core issue is the legal question.

It is a fair inference that the reason Obama resorts to theological dilemmas that he has concocted for himself is that he doesn't want to reveal his theory of constitutional interpretation.

There are only two meaningful ways to interpret the Constitution. The originalist theory is that the words mean the same thing today as they meant when they were written and ratified. This is an approach that is necessary if we believe in both self-government and the rule of law. Self-government requires us to accept the meaning from the elected officials who made the law. The rule of law requires us to accept the rules established by the law as fixed principles until such time as another law of equal rank formally amends the first law.

The other theory of constitutional interpretation is the "living Constitution," which asserts that the meaning of the Constitution changes over time. Words no longer have a fixed meaning. They now mean whatever the judges of today think they should mean. This is the rule of men, not law.

Obama's theological wanderings may be interesting, but we have all that we need to know for voting purposes by the revelation that he is unwilling to address or follow the original meaning of the Constitution.

If he is unwilling to following the original meaning of the Constitution on life and death, why would we think he will follow it on anything less important?