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
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.
Solution
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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