Tuesday, August 26, 2014

A Legal Amateur’s Look at Roe v. Wade

Whether you are pro-life or pro-choice, or even if you just plain don’t care, you should be concerned with the legal reasoning in the landmark case, Roe v. Wade (410 U.S. 113 (1973)).  The decision was a remarkable one in many respects, at least as it appears to someone who, while not an attorney, has some familiarity with constitutional law and basic logic.
Thus, if you’re pro-life you’ll want to know what seem to be some weak points in the argument so you can exploit them.  If you’re pro-choice you’ll want to know the weak points so you can defend them.  If you don’t care one way or another, you’ll want to know the weak points because the legal reasoning has implications far beyond the abortion issue — such as the ultimate source of human rights, and whether or not they are, as the Declaration of Independence states, truly inalienable.

As it appears to this non-legal professional, there seem to be three critical flaws in Roe v. Wade, any one of which could potentially be sufficient to overturn the decision:

1) Procedural Law

Prior to 1973, Article Three of the U.S. Constitution was interpreted to mean that no federal court could hear moot cases.  A case is “moot” if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.

Roe v. Wade was moot because the baby had been born.  That being the case, the interpretation of the Constitution had to change to mean that no federal court could hear moot cases in most instances . . . which means whenever someone can come up with a plausible enough excuse.

2) Substantive Law

The Preamble to the Constitution clearly puts the source of rights in natural persons, i.e., “We, the People.”  The Constitution is therefore a grant of rights from the people to the State, not the other way around.  If that were not the case, the whole concept of inalienable rights that justified the Declaration of Independence is undermined; a right that can be taken away or redefined to mean other than what it means is alienable, not inalienable.

The decision in Roe v. Wade, using the Slaughterhouse Cases of 1873 as a precedent (and thus, according to Constitutional Scholar William Crosskey, the notorious Dred Scott case of 1857), assumed as a given that rights are a grant from the State to persons.  That being the case, the State in the person of the Supreme Court could decide who is a “person,” i.e., who or what has rights, and grant them or alienate them at will.

3) Logic

It is logically impossible to prove a negative.  A proof is a demonstration that something “is,” i.e., that it exists.  A negative is the claim that something “is not,” i.e., that it does not exist.

Saying you can “prove a negative,” therefore, is the same as saying that you can demonstrate the existence of something that does not exist.  This violates the first principle of reason: that nothing can both “be” and “not be” at the same time under the same conditions.

The Supreme Court’s decision in Roe v. Wade is based on the claim that the Court did not know whether or not the fetus is human, but that the Court did know that it is not a person as that term is meant in the Constitution.

Thus, the United States Supreme Court claimed to be able to do the impossible: prove a negative.  Consequently, because the decision in Roe v. Wade is based on an impossibility, it is invalid; no law or court can require or admit that which is impossible.


The only way out of this paradox is to take away power from the Supreme Court, and return it to the people.  This, in turn, can only be done by implementing an aggressive program of expanded capital ownership as recommended in
Supporting Life: The Case for a Pro-Life Economic Agenda (2010) and detailed in Capital Homesteading for Every Citizen (2004).  Otherwise the issue can never be resolved.


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