I firmly believe that abortion is murder. It is murder of the most helpless and innocent. I also believe that life begins at conception. At the time of the writing and ratification of the Constitution every State treated abortion as murder, relying on English Common law, rather than a formal State law. Abortion is not mentioned in the US Constitution nor is it defined as a crime. That is of no significance when it comes to allowing the States to criminalize abortion. Murder is not defined in the Constitution nor is a punishment prescribed, yet murder is illegal in all 50 States. The only crimes defined by the US Constitution are treason, counterfeiting, piracy and felonies committed on the high seas, offenses against the law of nations, and tax evasion. These are the only crimes the federal government is authorized to punish by the Constitution. All other crimes remain the exclusive constitutional domain of the States. This was done to prevent the federal government from growing large enough to be a threat to the sovereignty of the States. If there were more federal crimes then the federal government would need a federal police force, federal prisons, and a very large federal court system. Unfortunately the federal government has ignored the Constitution and seized so much government functions from the States that it now has all of this. The federal government now dwarfs the States and has become a direct threat to the sovereignty of the States.
It is wrong to say that abortion is a states’ rights issue. It is more accurate to describe abortion as one of the vast majority of potential crimes that States have the authority to define and prescribe punishment, while the federal government does not. Here is how James Madison described the relationship between State and federal government when he wrote Federalist paper number 45
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
This principle, which is called federalism, is enshrined in the 10th Amendment. The federal government is granted only a very limited number of government powers which are clearly spelled out in the Constitution. The States are denied an even more limited number of powers which are also clearly spelled out. All remaining powers are retained by the States or the people. The power to define crimes such as murder is not granted to the federal government nor is it denied to the States; therefore it remains with the States. The same holds true for the power to outlaw abortion and other similar practices. Justice Harry Blackmun’s opinion for Roe v Wade violated the principle of federalism and the 10th Amendment. Here are two excerpts from the opinion which reveal the twisted logic used by Justice Blackmun.
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
According to Justice Blackmun, the Supreme Court can overrule the States on abortion because the due process clause of the 14th Amendment incorporated every single right included in the Bill of Rights down to the States. This would shock those that wrote and ratified the 14th Amendment. The Bill of Rights never extended to the States, each State has its own Bill of Rights. The 14th Amendment due process clause is an exact duplicate of the due process clause of the 5th Amendment. It extended the protection from only that one clause of the Bill of Rights down to the State level. Not much was written about the due process clause when the Bill of Rights was written because this concept was universally understood. It dates back to the Manga Carta and was an integral part of English Common Law. Here is what William Blackstone had to say when he wrote Commentaries on the Laws of England
The law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.
The due process clause prevents the government from taking away your freedom, in other words, locking you up, without going through a formal legal procedure. It was meant to ensure everyone has a fair trial, not allow abortions. The writers of the 14th Amendment never intended that this Amendment would allow the Supreme Court to overturn State laws preventing abortion. All 36 States outlawed abortion before this amendment was ratified in 1868. It was not until 1973 that Justice Blackmun used this amendment to overturn a Texas law.
Every State has a moral obligation to criminalize abortion because no one has a right to commit murder. Every individual is endowed by God with inalienable rights at conception. The most important of these rights are life and liberty. Abortion steals the life of the unborn child and robs it of a life time of deciding for itself. Liberty is the freedom to do what you want as long as you do not hurt others and do not interfere with the rights of others. Because abortion violates both principles, no one has a right to an abortion. President Trump needs to nominate a Supreme Court Justice that will overturn Roe v Wade and we need to work to make sure abortion is outlawed in every State.