The Rights of the Unborn from Common Law to Constitutional Law

Fr. Clifford Stevens

Publication Date: January 01, 2000

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 its benefit."

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 born.

The reason why these rights have not been matters of constitutional law before is that, until Roe vWade, 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 Dred Scott 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 pessima.

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 forceRoe v. Wade was based on a false fact of medico-legal history.

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. Dagenhartthe 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 them.

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 case.

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 unborn?

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 Rights.

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 United States.

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 significations".

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 social end - the protection and control of those interests in society which are the special concern of government and hence of law."

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 constitutional protection.

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 constitutional law.

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 Embryonic Law.

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 mother.

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 noblest attribute."

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 through history.

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 Common Law.

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 23.

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., pgs 1140-1151.

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 reprobation.....

"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, pg. 126.

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, pg. 126-127.

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. 551-555.

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.

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