THE RIGHTS OF THE UNBORN from Common Law to Constitutional Law
by Clifford Stevens
Most of the rights secured by the Constitution of the United States in the
Bill of Right were first enshrined in English Common Law and were an enumeration
or incorporation of these rights into our Constitution. This is so true that
when Louis Brandeis and Sam Warren, Boston lawyers, wrote their ground-breaking
study of the Right to Privacy in 1890, they drew almost exclusively upon
principles of English Common Law.
English Common Law contains the precedents that became the very language of
our Constitution, and it is from this well of principles, precedents and
declarations that our legal system draws its precedents and principles, as well
as the very language in which these precedents and principles are expressed.
The Bill of Rights was, in fact, 'the incorporation and absorption of rights
already established in English Common Law.' Because of the work of Brandeis and
Warren, privacy was recognized as a constitutional right by the Supreme
Court in Griswold v. Connecticut and
Roe v. Wade, as one of the "non-enumerated" rights protected and
guaranteed by the 9th Amendment of the Constitution.
The legal question is: Do the rights in the Bill of Rights, and the
immunities protected by the 14th Amendment, apply to the unborn? In other words,
is there in English Common Law any declaration of the rights of the unborn which
would warrant incorporation in the 14th Amendment? The answer is "Yes", and
there is a twofold basis in Common Law.
The first basis is a principle in Blackstone referring directly to the
unborn, as clear and direct as any reference to the Right to Privacy, or
any of the other rights listed in the Bill of Rights. It is a clear declaration
of rights and refers specifically to the unborn:
"Qui in utero, est pro jam nato habetur quoties de ejus commodo quaeritur:
One who is in the womb is held as already born, whenever a question arises for
According to English Common Law, the unborn have all the rights of the
born, and these rights have been embodied in our Constitution in the 9th
Amendment. All the rights in the Bill of Rights apply to the unborn, as well as
The reason why these rights have not been matters of constitutional
law before is that, until Roe v. Wade, these were rights protected
by State laws, drawing upon English Common Law for their meaning and intent. But
those State laws were abrogated and declared unconstitutional by the Supreme
Court in Roe v. Wade, thus becoming matters of constitutional law.
But the Roe v. Wade decision based its judgment of these State laws on
a mistaken statement of fact, embodied in the very text of the majority opinion,
and this mistaken statement of fact reveals the second basis for the rights of
the unborn in the Common Law.
That mistaken statement of fact, is best illustrated by a similar mistaken
statement of fact in the
decision, pointed out by Abraham Lincoln in his debates with Stephen
A. Douglas. Speaking at the Cooper Institute in New York in February of 1860,
Lincoln addressed the advocates of slavery on the constitutional issues in the
slavery question. His talk was a complete dismantling of the Dred Scott
decision of the Supreme Court written by Chief Justice Taney, which claimed that
the African slave had no rights under the Constitution of the United States:
"Perhaps you will say the Supreme Court has decided the question in your
favor. Not quite so…The Court has decided the question for you in a sort of way
.... I mean it was made by a divided Court, by a bare majority of judges, and
they not quite agreeing with one another in the reasons for making it; that it
was so made that its avowed supporters disagree with one another about its
meaning, and that it was mainly made on a mistaken statement of fact - the
statement in the opinion that "the right of property in a slave is distinctly
and expressly affirmed in the Constitution."
That mistaken statement of fact, in Lincoln's view, invalidated the Dred
Scott decision and his judgment in the matter was confirmed by the 13th,
14th and 15th Amendments. Dred Scott, because of the bias of the judges
in favor of slavery, twisted the Constitution to serve the interests of slavery,
and was a tortura legis, a mangling of the law which creates a tort,
the legal opposite of a right, and, according to an ancient legal axiom, the
worst kind of evil, since it distorts the very meaning of law: tortura legis
Such a tortura legis, such a mistaken statement of fact, was the
basis of the Roe v. Wade decision, and, like the statement in the Dred
Scott decision, was incorporated into the text of the decision by the
author of the majority opinion.
The mistaken statement of fact was one that Justice Blackmun, who wrote the
majority opinion, had received in a legal brief submitted by Cyril Means, a
leading member of the NARAL, the National Association for the Repeal of the
Abortion Laws. The statement was a part of a complexus of opinions that
Professor Means had come to in his study of the legal history of abortion. One
of his conclusions was that the abortion laws of the past were chiefly, if not
exclusively framed to protect the health of women from unsafe and dangerous
surgery, since abortion in the past was a rather dangerous and sometimes fatal
operation for women. With the advancement of medicine, he concluded, the laws
had become outmoded and he cited a principle in Common Law as the basis for the
repeal of the abortion laws.
That principle was this: cessante ratione legis cesset et ipsa lex: when
the reason for a law no longer exists, the law itself ceases to
exist. Justice Blackmun accepted both the reasoning of Professor Means and
his statement about the reason for the abortion laws, and a second tortura
legis became the basis for a Supreme Court decision.
Like the advocates of slavery, Professor Means twisted the facts of history
for his own purposes. The reason for the abortion laws, in English Common Law
and elsewhere, was to prevent the destruction of the unborn child in its
mother's womb. That was the sum and substance and the legal content of of those
laws. The final legal conclusion is the reversal of the legal principle cited by
Cyril Means to justify the repeal of the abortion laws: non cessante ratione
legis, non cessat ipsa lex: The reason for the law still exists, and therefore
the law itself is in force. Roe v. Wade was based on a false fact of
Lincoln's dismantling of the Dred Scott decision has a bearing as well
on the Roe v. Wade decision and in almost the same words.
"An inspection of the Constitution will show that the right of property in a
slave is not distinctly and expressly affirmed in it. Bear in
mind, the Judges do not pledge their judicial opinion that such a right is
implicitly affirmed in the Constitution; but they pledge their veracity that
it is 'distinctly and expressly' affirmed there; 'distinctly’, that is,
not mingled with anything else; 'expressly', that is, in words meaning just
that, without the aid of any inference, and susceptible of no other meaning.
"When this obvious mistake of the Judges shall be brought to their notice, is
it not reasonable to expect that they will withdraw the mistaken statement, and
reconsider the conclusion based upon it?"
In their classic study of Right to Privacy, Louis Brandeis and Sam
Warren recognized that in its development, the Common Law had retained the
flexibility to meet changing times and circumstances and to make new
distinctions in the application of laws. "Political, social and economic changes
entail the recognition of new rights, and the Common Law in its vitality, in its
eternal youth, grows to meet the demands of society." Since the Constitution of
the United States, particularly in the Bill of Rights, draws upon the genius of
the Common Law, it, too, recognizes new facets in the application of laws,
embodied in the concrete cases to which it must be applied.
Until 1918, almost every case brought before the Supreme Court dealt with the
rights of adults, with classes of people: African slaves, Native Americans,
African-American citizens, workers, women, Orientals, immigrants, aliens. But in
a case presented in 1918, something new and unprecedented entered the legal
arena: childhood. A new field, for legal judgment, a new legal moment was
opened up, requiring the application of constitutional principles for which
there were really no precedents.
The legal question was this: Do the rights and immunities protected by the
Constitution apply to children in the same way they apply to adults? Or to put
it in legal terms: is the pedagogical moment of childhood to be treated
in the same way as the autonomous moment of adulthood, or is childhood a
juridic moment at all: Do children have the same rights and immunities as
adults, under the Constitution?
In Hammer v. Dagenhart,
the Child Labor case, the Supreme Court fell flat on its face: it declared the
Child Labor Act, passed by Congress in 1916, unconstitutional. In
substance it declared that children had no rights under the Constitution, and
the rights and immunities protected. by the 14th Amendment did not apply to
The effects of Hammer v. Dagenhart doomed children to child labor for
another twenty-three years.
This decision brought forth one of the most stinging dissents of Justice
Oliver Wendell Holmes, and it was his dissent that would provide the legal and
constitutional basis for the reversal of that decision in 1941 in
United States v. Darby:
"If there is any matter upon which civilized countries have
agreed…it is the evil of premature and excessive child labor. I should have
thought that if we were to introduce our own moral convictions where, in my
opinion, they do not belong, this was pre-eminently the case of upholding the
exercise of all the powers of the United States."
When Justice Harlan Fiske Stone read the opinion of the Court in United
States v. Darby, he echoed the forceful statement of Justice Holmes in his
dissent, and made it clear that the pedagogical moment of childhood was
indeed a juridic moment and that children had rights and immunities
protected by the Constitution of the United States.
Can the same be said for the unborn? That is the question that has entered
the legal, arena with Roe v. Wade, and its legal solution is based on the
same legal reasoning and constitutional sources that determined the child labor
What has entered the constitutional arena for the first time with Roe v.
Wade is the embryonic moment of the unborn, the emergence of a
totally new field of law for which there are no precedents: Embryonic Law,
the application of constitutional principles to the unborn. The legal question
is: Do the rights and immunities guaranteed by the Constitution apply to the
The answer, drawn from the history of constitutional law, is the same as that
for children: although these rights and immunities must be applied differently
to the unborn, because of the very nature of gestation, those rights and
immunities are firmly established in law and are an integral part of the
Constitution of the United States and of the rights laid down in the Bill of
The legal problem comes from the very nature of gestation, since it brings
into the legal arena a relationship unique in human life and unique in law. The
critical question is how you define that relationship.
In Roe v. Wade, it was defined as a question of simple dominion:
a woman's right over her own body. Dominion, in fact, is the basic right,
encompassing all other rights in the Bill of Rights, the unifying theme of every
right and immunity laid down there. There is no doubt that the right of
dominion is the foundational right proclaimed in the Declaration of
Independence and the Constitution of the United States. To deny that would be to
deny the very basis of constitutional rights and democratic government. The very
concept of self-government means, as Lincoln so clearly understood, that
my person is inviolate, that the rights and immunities assured me by the
Constitution of the United States are not given me by the government, or by that
Constitution, but belong to me by the very fact that I am a human being.
But in the case of the unborn, we have more than a case of simple
dominion. we have a case of divided dominion something so new in
constitutional thinking that there are no concepts or terminology to deal with
it. For that we have to look to collateral bodies of law, for parallels
and precedents that mirror the relationship between mother and unborn child.
There is a body of law that deals specifically with a relationship not unlike
that of a mother and the child in her womb. It is called the Law of
Bailments, one of those collateral bodies of law that are part of English
Common Law and American Jurisprudence. The most notable commentator on
Bailments is Joseph Story, an Associate Justice of the Supreme Court from
1812 to 1845 and the first great authority on the Constitution of the United
States. He is also an authority on the Common Law, as we inherited it from
England and as it is found in the great collections of English law: Bracton,
Coke and Blackstone.
Bailments is defined as the divided dominion of personal property
which contemplates custody in one part and ownership in another. Custody in
one part and ownership in another: now we have a legal concept and legal
terminology to handle the question of the unborn.
In every declaration of English Common Law, it is presupposed that the mother
who carries a child in her womb has a trust-dominion over the child, but
the child, in the fullness of its human and constitutional rights, has an
absolute dominion. Whatever dominion is exercised over the child in the
state of gestation is exercised only in loco prolis for the benefit of
the unborn. And that is why the law so clearly stated: One who is in the womb
is held as already born, whenever a question arises for its benefit.
It is that principle that is enshrined in English Common Law and it is that
principle which, in the mind and intent of the framers of our own
Constitution, is enshrined in the 9th Amendment and was made the charter of the
rights of the unborn in the 14th Amendment.
There is one more point that challenges Roe v. Wade and the practice of
abortion as a constitutional issue.
It comes out of one of the outstanding decisions of John Marshall, Chief
Justice of the Supreme Court from 1801 to 1835, and the molder of most of our
important constitutional traditions. This decision had to do with the Commerce
Clause of the Constitution, but its importance for us is not in matters
of commerce, but in principles of interpretation of the Constitution of the
The principle of interpretation enunciated by John Marshall was in a case
decided in 1824: Gibbons v. Ogden. The case involved a dispute over the
Commerce Clause in the Constitution, which lays down that commerce in the
United States is regulated by Congress, and not by the several states. This was
a direct result of the failure of the Articles of Confederation to
regulate commerce for the nation as a whole, each state placing duties and
tariffs on goods from other states crossing its borders. To assure the free
development of commerce between states, and the growth of a national economy,
the power to regulate commerce was placed in the Congress alone.
Gibbons v. Ogden arose out of the invention of the steamboat by Robert
Fulton. Fulton secured from the State of New York a monopoly on steamboat
navigation on the waters of the state. Under that monopoly, a businessman named
Aaron Ogden was licensed by Robert Fulton and the State of New York to operate
ferryboats between New York and New Jersey. When another businessman,
Thomas Gibbons, with a license from the federal government, began to run
steamboats in competition with Ogden, Ogden sued Gibbons, claiming exclusive
right to navigate between New York and New Jersey. Gibbons claimed that he was
engaged in commerce and that the New York laws conflicted with the Constitution
of the United States, that only Congress could make laws regulating commerce.
After action in the lower courts, the case was brought before the Supreme Court.
New York claimed that steamboat transportation of goods had nothing to do
with commerce, and that commerce had to do with buying and selling alone,
therefore New York was not in violation of the Constitution.
In his decision, Chief Justice Marshall declared that New York had
interpreted the term commerce in the Constitution restrictively,
that commerce had to do, not only with buying and selling, but with the
transporting of goods as well. Terms in the Constitution, he stated, must be
interpreted expansively. New York's understanding of commerce, he ruled,
"would restrict a general term, applicable to many objects, to one of its
This, then, is the principle that emerged from this case: constitutional
terms must be interpreted and applied expansively, not restrictively. What
are these terms? Any term in the Constitution: in this case the terms commerce,
regulate, provide. But that can be applied to other terms as well,
person. For instance. In Roe v. Wade, Justice Blackmun laid down
that the term person in the Constitution does not apply to the
unborn. That is a restrictive application of the term person, and
"restricts a general term to only some of its significations". This is an
invalid and unconstitutional application of the term. According to every meaning
of the word person in the Constitution and in the Common Law, the word
person applies to the unborn. The fact that it was never applied to the
unborn in the past is that the question was never an issue in constitutional
law. Before Roe v. Wade, the unborn, as human persons in every meaning
the Constitution intended, were protected by State laws. With the abrogation of
those laws appeal must be made to the Constitution itself and to the sources of
that Constitution in the Common Law.
Louis Brandeis did more for the development of constitutional law than making
the Right to Privacy a recognized constitutional right. His most
significant contribution to the development of constitutional law was the
Brandeis Brief; which was the basis for the Supreme Court's decision in a
case involving workers' rights in 1908,
Muller v. Oregon.
In the Brandeis Brief, Louis Brandeis set the Supreme Court in a
totally new direction, a direction pioneered by the dissents of John Marshall
Harlan I and Oliver Wendell Holmes, Jr. and that new direction was based on an
unalterable devotion to the facts that underlie every case brought before
the Court. In that, in the judgment of Harlan Fiske Stone, one of his associates
on the Court and Chief Justice from 1941 to 1946, he opened a new era of
constitutional adjudication and the re-integration of the Common Law tradition
into American jurisprudence.
"Justice Brandeis knew that throughout the development of the common law, the
judge's decision of today, which is also the precedent of tomorrow, has drawn
its inspiration - and the law itself has drawn its capacity for growth - from
the very facts which, in every case, frame the issue for decision. And so, as
the first step to decision, he sought complete acquaintance with the facts as
the generative source of the law ...In the facts, quite as much as
in the legal principles set down in the lawbooks, he found the materials for the
synthesis of judicial decision. In that synthesis the law itself was
but the means to a social end - the protection and control of
those interests in society which are the special concern of government and hence
In a constitutional challenge to Roe v. Wade, it is that dedication to
facts, to empirical data, that will bring the rights of the unborn under
In Muller v. Oregon, Louis Brandeis appeared before the Court with
empirical data and legal arguments for a new juridic science: the Law of Labor,
the final development in a jurisprudence that had its origins in the industrial
revolution, when industry replaced agriculture as the economic base of society.
Until that time, the Supreme Court had fostered and supported what has been
called "court protected capitalism", a legal doctrine based on the rights of
property, with all the rights attached to the ownership of property applied to
business and industry.
With his famous Brandeis Brief, Louis Brandeis drew heavily upon the
empirical data provided by industrial society itself, in every major area of
industry and in every major industrial nation, and demonstrated by superb legal
reasoning on unassailable facts that workers had rights under the Constitution
and were not part of the "property" of the owners of industry.
It was a classical case of empirical data underpinning a new development of
law, and the extension of the Constitution and constitutional principles into a
totally new area of American society. For the first time in the history
of the Court, empirical data was accepted equally with precedent as the basis
for legal argument. Muller v. Oregon spelled the end of "court-protected
capitalism" and ushered in a new era of individual and personal rights.
A similar development is taking place in the wake of the Roe v. Wade
decision, and this development has a bearing on the practice of abortion, as the
Law of Labor had a bearing on the practices of business and industry.
Muller v. Oregon was the direct result of a series of cases, denying
rights to workers, culminating in
Lochner v. New York
(25) in 1905. It was Lochner v. New York that
precipitated the constitutional crisis that led to Muller v. Oregon, a
crisis highlighted by the ringing dissent of Oliver Wendell Holmes, who laid the
groundwork for the reversal of that decision. It was Louis Brandeis who provided
the empirical data demonstrating that Lochner v. New York gave
constitutional protection to the owners of industry in direct violation of the
rights of workers.
In the wake of Roe v. Wade a similar development is taking place
regarding the rights of the unborn, Embryonic Law, and the empirical data
underpinning this development is being drawn from the medical and biological
sciences, which have grown in number and sophistication since the dawn of modern
medicine and new precision instruments. What is being brought under the scalpel
of a new Jurisprudence are the facts of unborn life and the extension of
constitutional principles to the unborn.
What is under fire is the empirical and medical data underpinning the Roe
v. Wade decision, most of it provided by a single legal brief, that of Cyril
Means, a lawyer attached to the NARAL, the National Association for the Repeal
of the Abortion Laws. The new empirical data challenges the conclusions of that
brief, which was based on a cursory analysis of medico-legal history.
With more than 200 embryonic sciences to draw upon, and precision instruments
that record in precise detail the process of gestation, the facts of embryonic
life could once more enter the legal arena with far-reaching consequences in
The final conclusion of the Roe v. Wade decision that the development
of medical science has made unnecessary the abortion laws of the past, will be
shown, by that very development to be empirically untenable. The restriction of
the term person to exclude the unborn will be challenged by a new body of
empirical data. Embryonic science itself could bring about the development of
What these sciences can demonstrate, with precise and detailed empirical
data, is that the womb is the temporary habitation of a developing human being,
with embryonic and extra-embryonic supports systems designed specifically for
the preservation of a human life. How many judges, for instance, know the
scientific structure of the amnion and chorion, the inner and outer fetal
membranes, and how, as the unborn child begins to experience the epiphany of its
powers, it casts off the thin layer of the amnion to form the
amniochorionic sac? How much of this process is instinctive, or merely
neurobiotaxical, is not clearly discernible, but it does lay the basis for a new
scientific and legal description of gestation: A human subject in a state of
somatic organizational and developmental repose, with an integrating
and organizational principle distinct from and separate from the body of the
And there is a growing body of evidence supporting the claim that the
integrating principle is a human person in the unfolding of its innate
human potential, gradually experiencing, expressing, and revealing the
blossoming of its distinctively human powers.
The fact is that medical science has not kept up with its own development
and has not carefully monitored the empirical data emerging from that
development. This parallels exactly the state of business and industry at the
turn of the century, when a flawed concept of "property rights" brought about a
totally new development in American law. The new empirical data from the
embryonic sciences are bringing about a similar development in legal science, a
development that could see the emergence of Embryonic Law: the
application of constitutional principles to the unborn.
It is in the transition from English Common Law to our own
Constitution that we must go for the legal solution to the question of the
unborn, as well as in the principles and precedents laid down in the major
decisions of the Supreme Court over the past 200 years. The rights of the
unborn are a part of our constitutional legacy, but that can be drawn out,
demonstrated and defended only by new cases relating to the unborn brought
before the judiciary.
"Litigation, is the vehicle by which the fundamental principles
rooted in our Constitution are given content and relevance to each
generation ...Constitutional adjudication is the genius of our democracy and its
Unless and until new cases are brought before the Court, the Roe v.
Wade decision will stand. Without litigation, even massive litigation,
challenging the constitutionality of Roe v. Wade, the Supreme Court's
hands are tied, since it is bound by the Roe v. Wade decision until new
data and new testimony are brought before it in specific and concrete cases.
The Constitution of the United States is like a giant searchlight that throws
its beams onto the political and social landscape of the United States and
reveals the inequities and flaws in that landscape. The landscape of 1788, when
the Constitution was ratified is quite different from the landscape of 1857,
when the slavery question divided the nation, and the landscape at the turn of
the Century is quite different from that of 1857. Each period has its own
problems and its own inequities and these problems and inequities are faced by
the decisions of the Supreme Court that throw the light of the Constitution on a
whole new set of problems. These decisions themselves become part of the
constitutional fabric of the country and record the march of the Constitution
In his monumental study of Black America's century-long struggle for
equality under the law, Richard Kluger recognized the critical role of the
Supreme Court in solving the problems of American society. His book is a graphic
illustration of how access to the courts is the only way to change the ethos of
that society. The tool is the Constitution of the United States and it is only
by action in the courts, in the Supreme Court in particular, that that
Constitution is brought to bear upon the life of the nation:
"It is to these insulated nine men that the nation has increasingly
brought its most vexing social. and political problems. They come in the guise
of private disputes between only litigating parties, but everybody understands
that this is a legal fiction and merely a convenient political device. American
society thus reduces its most troublesome controversies to the scope - and
translates them into the language - of a lawsuit. In no other way has the nation
contrived to frame these problems for a definitive judgment that applies to a
vast land, a varied people, a whole age."
1)"The Right to Privacy" by Louis D. Brandeis and Samuel Warren, Harvard
Law Review, 4 (1890), 193-196.
2) One has only to consult Black's Law Dictionary to see how
true this is. Of the multitude of citations, the bulk of them are from English
3) For a graphic illustration of the place of English Common Law in American
colonial life, read the account of the trial of the British soldiers involved in
the "Boston Massacre". The soldiers were defended by John Adams and acquitted,
on principles of English Common Law. c. "John Adams and the American Revolution"
by Catherine Drinker Bowen, Grosset S. Dunlap, New York, 1959, chapter 22 and
4) Griswold v. Connecticut, 381 U.S. 479 (1965), found in
"Constitutional Interpretation" by Harold W. Chase & Craig R. Ducat, West
Publishing Co., St. Paul, Minnesota, Second Edition, 1979, pgs. 1129-1136.
5) Roe v. Wade, 410 U.S. 113 (1965), found in Chase & Craig, op.cit.,
6) Blackstone's Commentaries, 130. Also cited in Black's Law
Dictionary, pg. 1481.
7) The 9th Amendment states: "'The enumeration in the Constitution
of certain rights shall not be construed to deny or disparate others retained by
the people." In his concurring opinion in Roe v. Wade,
Justice William O. Douglas wrote: "A catalogue of these rights include
customary, traditional, and time-honored rights, amenities, privileges, and
immunities that come within the sweep of 'the Blessings of-Liberty’ mentioned in
the Preamble of the Constitution. Many of them in my view come within the
meaning of the term 'liberty' as used in the 14th Amendment."
8)"Address at the Cooper Institute, New York City", in "Lincoln: Speeches
and Writings", The Library of America, pgs. 111-130.
9) Taney's words betray the most virulent kind of racism:
"It is too clear for dispute that the enslaved African race were not intended
to be included, and formed no part of the people who framed and adopted this
declaration,: for if the language, as understood in that day, would embrace
them, the conduct of the distinguished men who framed the Declaration of
Independence would have been utterly and flagrantly inconsistent with the
principles they asserted; and instead of the sympathy of mankind, to which they
confidently appealed, they would have deserved and received universal rebuke and
"They perfectly understood the meaning of the language they used, and how it
would be understood by others; and they knew that it would not in any part of
the civilized world be supposed to embrace the negro race, which, by common
consent, had been excluded from civilized Governments and the family of nations,
and doomed to slavery… The unhappy black race were separated from the white by
indelible marks,: and laws long before established, and were never thought of or
spoken except as property .....
Negroes, therefore were "beings of an inferior order, and altogether unfit to
associate with the white race, either in social or political relations, and so
far inferior that they had no rights which the white man was bound to respect."
10)"Lincoln: Speeches and Writings", Vol. 2, The Library of America,
11) Black's Law Dictionary, Third Edition, pg. 302. Also, 2
Blackstone Commentaries, 390, 391.
12) "Lincoln: Speeches and Writings, The Library of America, Vo. 2,
13) Quoted from The Right to Privacy in "Of Laws and Limitations: An
Intellectual Portrait of Louis Dembitz Brandeis" by Stephen W. Baskerville,
Fairleigh Dickinson University Press, pg. 83.
14) Hammer v. Dagenhart, in "Constitutional Interpretation" by Chase &
Ducat, pgs. 477-482. 247 U.S. 251 (1918).
15) United States v. Darby, in "Constitutional Interpretation" by
Chase & Ducat, pgs. 500-505. 312 U.S. 100 (1941)
16) cf. the text of his dissent in "Constitutional Interpretation" by
Chase & Ducat", pg.,-,. 480-482.
17) cf. "Harlan Fiske Stone: Pillar of the Law" by Alpheus Thomas Mason, pgs.
18) "One need not look at the Bill of Rights .... only as a list of separate
items; one may also see the interconnections, with a few great themes around
which these rights and liberties cluster… One them is each person's right to a
domain outside the public realm". William Lee Miller, "The First Liberty".
19) "The Law of Bailments, in Collected Works, Joseph Story.
20) "Justice Joseph Story and the Rise of the Supreme Court" by Gerald T.
Dunne, Simon & Schuster. 1970; "Joseph Story and the American Constitution" by
James McClellan, University of Oklahoma Press, 1990.
21) Gibbons v. Ogden, in "Constitutional Interpretation" by Chase &
Ducat, pgs. 437-443. 22 U.S...(9 Wheat.) 1.
22) cf. "Louis D. Brandeis: Justice for the People" by Philippa Strum,
Harvard University Press, Cambridge, 1984. The complete text of the brief is 113
pages in the printed version of the Supreme Court, October term, no. 107.
See also "Brandeis: A Free Man's Life" by Alpheus Thomas Mason, The Viking
Press, 1946. pgs. 245-254.
23) 208 U.S. 412 (1908). See also "Of Laws and Limitations: An Intellectual
Portrait of Louis Dembitz Brandeis" by Stephen W. Baskerville, pgs. 145-148.
24) Baskerville, op. cit., pg. 234.
25) Lochner v. New York, 198 U.S. 45 (1905). Also in "Constitutional
Interpretation" by Chase & Ducat, pgs. 712-716.
26) Tom C. Clark, Hastings Constitutional Law Quarterly, 1 (1974)
27) cf. Richard Kluger, "Simple Justice", Random House, New York,
1975, in the Forward.
New Perspectives on the Defense of the
Unborn as a Constitutional Issue