Preamble of the Constitution Protects the Unborn [OPINION]
With several states dominated by conservative legislators pushing for and now passing abortion bans, we are seeing the most ambitious advancements against abortion in my lifetime over these last three weeks.
Here we go again. The 2020 elections have so many other important issues and emerging crises to tackle, but the greatest social issue since racial equality - abortion, will again be an alpha-issue for millions.
For many years I have been a loud and proud pro-life voter. I am not the clinic protester type but I am happy to discuss the issue with anyone and sometimes do. This is the issue that originally turned me from rather apolitical to a conservative by the time I was 30.
I believe the issue can have a civil debate and mutual respect but it is admittedly not a common conclusion by discussion's end.
The pro-choice legal strategy has been brilliant, They have cut off many arguments to be made over the years. They have sterilized the true agenda of Margaret Sanger, founder of Planned Parenthood. They have sued, manipulated information, intimidated detractors and have brilliantly capitalized on the rare violence by anti-abortionists such as the evil acts by John Salvi and Eric Rudolph.
Systematically, the secular progressives have stuffed God into the "closet" with their effective "Wall of Separation" argument and have tried to free America of all mores, sexual and otherwise.
The pendulum is in their favor these days, thanks in part to the flop by the Roman Catholic Church, which is more obsessed with appearing to fix its massive pedophilia problem than actually fixing it, and no one is buying it. It has lost much of the moral clout since.
So on other social issues such as abortion, the church has such low credibility, since it failed miserably to even appear to understand the shock and outrage. Note the empty pews and closing parishes everywhere. It's tragic. But that's where we are today.
No shepherd to smite the wolves.
So, while I can point to Scripture to those who still do have reverence for the Holy Bible, I realize this argument doesn't hold weight in a court of law these days. Sure, the judges and politicians go to church or synagogue, but mostly for the image and for ulterior motives. Few are pius, true believers. No court in America will hear the religious argument.
So as I got deeper into politics, I realized that I would need to help fight abortion as birth-control from a legal standpoint. I'm one who believes there is a little elbow room for compromise in this issue, but too few would agree.
You can't get mainstream pro-life groups to agree to abortion even in limited scenarios, such as rape or seriously deformed fetuses which would not likely survive for long. They will not give an inch for situations like that which would allow for abortion, and likewise, you cannot get pro-choice advocates to budge from late-term abortions, or agreeing to laws that compel care to "born-alive babies" who somehow survived the abortion procedure but are dying outside of the womb.
It's a big, hot and angry mess.
So many legal minds will say there is nothing in the Constitution which protects the unborn fetus or that it even considers a developing fetus a person. A fetus is an unborn baby human after eight weeks of conception.
I believe the Constitution does protect the unborn equally to those walking around today, living and breathing as born or naturalized American citizens. It's not in an Article, clause or amendment. I see it clear as day, in the Preamble:
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of ..."
In the past, the Preamble has been the source of dispute on its own. But before I get into that, let's look at the history and what was in the minds of our Founding Fathers.
The Preamble to the U.S. Constitution was not the first ever written and our founders were well aware of some historic preambles to other great intellectual works, preserving the rights of men. The Petition of Right of 1628, the Habeas Corpus Act of 1679, the Bill of Rights of 1689, the Act of Settlement of 1701, the Articles of Confederation of 1777, and some state constitutions, including our own here in Massachusetts.
There is a possible setback, of course, because in 1905 U.S. Supreme Court Justice John Marshall Harlan ruled that:
"Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution, and as such as may be implied from those so granted."
But we're not looking for a specific granted right in the body or otherwise. The question is who is entitled to the rights found in the body of the Constitution?
The Founders were clear: life and liberty are secured for ourselves and our posterity.
As I read more about Harlan in the Oxford International Journal of Constitutional Law, I learned that Harlan really didn't settle the issue. He stripped the Preamble of any legal force but he never provided any "historical evidence or textual explanations." Nor did he state in his ruling that the Preamble wasn't a binding part of the Constitution.
Interpreting American law sometimes comes down to educational guesses about what the founders' intentions were. I can provide you with several quotes to make my case.
Alexander Hamilton, who authored Federalist No. 84, wrote that the Bill of Rights wasn't necessary because the Preamble already grants them.
James Monroe wrote in a1788 publication calling the Preamble “the Key of the Constitution” and declaring, “Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people.”
The way to convince my doubters that the Preamble has weight in the Constitution is to pose a question. What if the Preamble said the rights in the Constitution "are solely secured for land owners alone" or "whites only?"
But it doesn't. I believe the Constitution is divinely inspired, written by enlightened men. It may be the greatest of our contributions to the human race.
It is inclusive to all people of these United States, and equally to our posterity, which would be impossible to argue does not include the unborn in the womb.
Ken Pittman is the host of The Ken Pittman Show on 1420 WBSM New Bedford. He can be heard Saturdays from 9 a.m. to noon. Contact him at ken.pittman@