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The grilling has begun, and one of the heated topics is that of abortion rights. This morning I heard one senator asking point blank if the Judge believed that the right of abortion was "the established law of the land." He evaded the question, of course. So let me presume to give a short answer.
The Declaration of Independence is the document on which our Constitution is based. It stands above the Constitution in that sense. More than that, the Declaration was just that--a Declaration. It was not called "The GRANTING of Independence," because it granted nothing. It only declared that GOD had granted all men certain inalienable rights. God (not government, nor even the Constitution) is the Source of all rights.
Although this Declaration was somewhat unique in the history of nations, it did not just pop up out of nowhere. It had much legal thought and precedent in the Common Law of England. Blackstone's Commentaries had said this about the Right of Personal Security:
"1. Life. This right is inherent by nature in every individual, and exists even before the child is actually born.
"Rights of Unborn Child. The offense of abortion of a quick child is not murder, but homicide or manslaughter."
Blackstone's Commentaries reflected the Common Law (given by God, rather than by legislatures or kings). Blackstone's view of abortion was not different from Bracton (13th century) and Sir Edward Coke (1552-1634) in his "Institutes of the Laws of England."
Because the American colonies were English, the Common Law became the "law of the land" in America on which all legislative law was based. No legislation could overrule the Common Law, because the Common Law was God's law, which superceded all human legislation. This was the core belief that ensured all human rights.
The Supreme Court ruled in 1963 (Ferguson v. Skrupa) that inalienable rights were not always protected by "due process," particularly when opposed by an enactment of the executive branch of government. Since one cannot separate "due process" from inalienable rights, the Court's new "law of the land" was subordinated to the Supreme Court, rather than to God alone.
From there, two years later in the case of Griswold v. Connecticut, 1965, they were able to speak of a new "penumbra" of rights. These were so-called "rights" that the Supreme Court found, not in the Common Law, but in the 14th Ammendment of the Constitution. In part, the 14th Ammendment read:
"Nor shall any State deprive any person of life, libery, or property, without due process of law."
Contrary to Blackstone and all precedent, they did not view an unborn child as a person. Legally speaking, a corporation is a person, but an unborn child is not. In Wayne Hostad's book, "Leviticus v. Leviathan," p. 112, he states,
"Out of the penumbra discussed in "Griswold" came a new definition of liberty which provided the framework for "Roe." The penumbra gave way to the Fourteenth Ammendment in "Casey." "Casey" placed the "rights" to abortion upon a newly defined concept of libery. The right to liberty, no longer strictly viewed as a natural, inalienable right, now originates from the Court's interpretation of the Fourteenth Ammendment, not from the Creator, as stated in the Declaration." (p. 112)
"The Fourteenth Ammendment was analyzed out of context and established as a new declaration of fundamental law." (p. 113)
"The drafters of the Fourteenth Ammendment did not consider the rights of unborn children because the issue never occurred to them...."
"Roe v. Wade also disregarded legal history. Abortion had been considered criminal from before the time of Bracton. Bracton was the first to attempt to summarize Common Law. The criminalization of abortion had been ingrained in the Common Law for a long time." (p. 114)
At the time of the ratification of the Fourteenth Ammendment, every state in the union considered abortion a crime. Connecticut first enacted a sanction against abortion in 1821, but it had been a capital crime under Common Law since at least the Sixth Century, and even earlier." (p. 114)
Thus, when Judge Alito was asked whether or not he thought that Roe v. Wade was "the established law of the land," there really is no answer. Yes, it is currently the "law of the land" as established by the Supreme Court. But no, it is not "the law of the land" as established by the Declaration of Independence.
No longer is the Common Law the law of the land. This was eroded for many years, but finally God's "Common Law" was replaced by man's "law of the land" in the case of Griswold, on which Roe v. Wade was based.
I think that Judge Alito understands this, but doesn't want to admit it in public. I think the supporters of Roe v. Wade know that he understands this, but don't want to admit that Americans no longer have inalienable rights. So everyone talks around it to keep the people in ignorance.
The real question is this: Does the senator think that the Declaration of Independence is a relevant document today? Do all rights come from God or from government? Does the Supreme Court have any inalienable rights, including the right to discard the Declaration and overrule God Himself? If so, please let me know where that was written in the Constitution.