Cellulose Persons and Other Straw Men

Article excerpt

You might be surprised to learn that the right to abortion also serves to secure our First Amendment right to free speech, at least in the view of one writer, Professor Ronald Dworkin. As the professor spins it, "If a state could declare trees to be persons with a constitutional right to life, it could prohibit publishing newspapers or books in spite of the First Amendment's guarantee of free speech, which could not be understood as a license to kill."1 You see, if the states had the power to declare fetuses "persons," men there would be no stopping the states from impairing our constitutional rights "by adding new persons to the constitutional population" - trees, for example; cellulose persons. Having propped up this straw man, Dworkin then knocks it down, "Once we understand that the suggestion we are considering has that implication, we must reject it. If a fetus is not part of the constitutional population under the national constitutional arrangement, then states have no power to overrule that national arrangement by themselves declaring that fetuses have rights competitive with the constitutional rights of pregnant women."2

Justice John Paul Stevens found Dworkin' s arguments to his advantage in his separate opinion in Planned Parenthood v. Casey; he quoted the above to support his affirmation of the Roe v. Wade opinion. Stevens restated Justice Harry Blackmun's claim in Roe that unborn children were not persons "within the language and meaning of me Fourteenth Amendment." Stevens repeated Blackmun's allegation that unborn children had only "contingent property interests." And he also reasserted Blackmun's further declaration that "the unborn have never been recognized in the law as persons in me whole sense." Stevens ended with the clincher, "no Member of the Court has ever questioned this fundamental proposition."3 This latter claim has even been reiterated by some who are otherwise pro-life to dissuade other pro-lifers from pressing for personhood. Yet, these assertions are wrong in fact and theory.

Let's start with the "cellulose person" argument. We need first consider the origin of federal power. In its early decisions, when the Court was not so far removed in time from our nation's founding, it was common knowledge that the federal Constitution was derived from the sovereign states,4 who in turn received their power of government from the people.5 Our federal government is one of limited, enumerated powers - powers granted to it from these states.6 Logically then, the federal government could receive from the states only the powers the states had to give.

Herein lies an inherent contradiction with the cellulose-person argument: If the federal government has a power, then the states must likewise have the same power currently, or have held said power at one time.7 So, to argue that the federal government has the power to decide who is or is not a person is to argue that the states hold the same power, or at least held it at one time. The analysis then becomes an inquiry into whether the states have granted all, part, or none of their power in this particular area to the federal government. Where then in the Constitution do the states grant the federal government the power to declare who is or who is not a person? The answer is nowhere - not even in part. Consequently, this power is still retained by the states under the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Looking at it from another perspective, the rights of life, liberty, and property are natural rights which pre-existed our state and federal governments, as affirmed in the Declaration of Independence. It is the states, not the federal government, that have the primary duty to protect those unalienable rights. As the Court stated in U.S. v. Cruikshank:

The rights of life and personal liberty are natural rights of man. …