Da Techguy's (no longer backup) Blog

Roe v. Wade was not only a constitutionally dubious ruling, it was morally reprehensible, and rather barbaric.  Like most of us on the political right, I am optimistic that it will be soon overturned.  Like the vast majority of Americans, I was caught completely off guard by the leak of Samuel Alito’s majority opinion in the case Dobbs v. Mississippi.

Here are the two most important paragraphs from Alito’s opinion, as quoted from this article, Leak: Supreme Court to Overrule Roe, Returns Abortion to Voters (breitbart.com).

We hold that Roe v. Wade must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty.”

The right to abortion does not fall into this category. Until the latter part of the 20th century, such a right was entirely unknown to American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

I have studied the Constitution in great detail,  all from the original source documentation, rather than through Supreme Court Precedence. Up until the 1890s original documentation, such as the debates from the drafting of the Constitution, Ratification Debates in the States, The Federalist Papers, and The Anti-Federalist Papers were the primary tools used to interpret the Constitution,  The dramatic shift to using Supreme Court Precedence, which are just the opinions of the justices, as the only tool to interpret the Constitution did not begin until over 100 years after the ratification of the Constitution.

Samuel Alito, who is absolutely correct in his opinion overturning of Roe v.Wade, used a combination of Supreme Court Precedence and original documentation.  If he relied just on the original understanding of the Constitution, his opinion would have been much shorter,

Abortion is murder.  That is a truth understood by founding fathers of the United States, and those that wrote and ratified the Constitution. Murder is not a crime defined by the United States Constitution. Only a handful of crimes are defined in US Constitution. Those crimes are treason, counterfeiting, and piracy. Those are the only true federal crimes, the only crimes that fall under the purview of the federal government. All other crimes are left in the hands of the States.  Murder is not mentioned in US Constitution therefore it is left up to the States to define murder and prescribe punishment for those who commit that crime.  Because abortion is murder it is an issue left in the hands of the States, not the federal government.

Abortion is not a right because no one has a right to commit murder.  Hypothetically, if there  really was a right to an abortion,  the issue would still remain in the hands of the States, if we still followed the original interpretation.  Because abortion is not listed specifically in the Bill Rights,  it would be covered by the 9^th Amendment which states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

If abortion was a right covered by the 9^th Amendment, it would still be left in the hands of the States because the Bill of Rights is a hands off for the federal government. The rights protected by the Bill of Rights are far too important for the federal government to touch them in any way, not even the Supreme Court.  Decisions involving are most important rights were left in the hands of the States exclusively.  This is documented in great detail in this lengthy discourse, which took place at the beginning of the drafting of the Bill of Rights in the House of Representatives. 

It was not until the 1920s that the Supreme Court declared that it had the authority to rule on cases involving the Bill of Rights.  The Supreme Court granted itself that authority in direct opposition to the plain meaning of the Constitution using what is called the Incorporation Doctrine.  I will cover the Incorporation Doctrine in great detail in a future article.

All this talk of abortion being a right covered by the 9^th Amendment is mute because abortion is murder, and no one has a right to commit murder.