It seems increasingly popular to use the 10th Amendment to justify carte blanche legislative authority within the States. Even some Presidential candidates have implied that because of the 10th Amendment, States can “pass whatever laws they want.” Recently, others have said that if a State wants to legalize abortion, the 10th Amendment gives the State the power to do so.
I would like to assert that some issues cannot be legislated by the States. In particular, abortion is NOT a State’s rights issue, and here’s why: We cannot fully understand the 10th Amendment until we understand of the 9th Amendment as well. The 9th Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The key to the 10th Amendment is understanding that our Founders went out of their way to make sure it was abundantly clear that the Rights enumerated belong to the PEOPLE and not to the Government – neither State nor federal. So when the 10th Amendment says, “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,” our founders were NOT creating three separate seats of power in the United States: the Feds, the States, and the People. They were saying, in conjunction with the 9thAmendment, that these rights belong to the PEOPLE through the States. The founders never intended for the States to disparage these rights, any more than they intended the Federal government to disparage them. As a matter of fact, the Declaration of Independence makes this point as a primary focus for the creation of all government, principally applied to the States from the beginning.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”
The entire purpose for creating the States was to SECURE THESE RIGHTS that belong to the people, among them; LIFE, LIBERTY, & the Pursuit of Happiness.
While there are many things, in fact most things, that the States should legislate, there are certain inalienable rights that cannot under our Constitution be legislated away. Life is not something that should be legislated away. Life is an inalienable right. The State was established to SECURE that Right.
The truth that Life begins at conception is a biological fact. This fact was not “overturned” by science in Roe v. Wade, but by manipulation of facts through law. If real science had been used and not legal manipulation, denying life in the womb at conception would have failed. The argument of viability, as established by Roe, is based upon the argument that if you remove the fetus from the womb at a certain point, that fetus would die and therefore was not alive and not a person. Logically speaking, by admitting that this life will die implies that it was alive at some point. You cannot abort an action that has never begun. Therefore, Roe is not only unconstitutional, but logically and scientifically unsound. Even the judge in Roe admitted if it would be established in court that life began at an earlier stage, this life would have rights. This error is not a matter of science, but a matter of incompetent legal argument.
Finally, to use the 10th Amendment as an excuse to deprive someone of life is a misapplication of Constitutional principles. Our Declaration of Independence and Constitution are both very clear as to the founder’s understanding of the right to Life. If we do not have life, we have neither Liberty, nor an opportunity to pursue happiness. In fact, our founders repeatedly declared that they were pledging life, fortune and sacred honor for “ages and millions yet unborn.” It is clear, by their own words, the founders of our America believed the rights of the unborn were worth dying for.
Abortion is not a State issue as assigned by the 10th Amendment, nor is it a “social” issue not to be discussed; it is that very matter of Life, Liberty, and Pursuit of Happiness upon which our Constitution is based. A State cannot adopt laws to eliminate free speech and cannot pass laws to legalize murder and the 10th Amendment cannot be used to justify abortion. To claim the 10th Amendment permits a State to legalize abortion is to misunderstand the Constitution and the 10th Amendment itself.
Some would use the same Constitutional argument against the death penalty, but there is a difference in these two issues from a Constitutional perspective. You have the ability to forfeit your Liberty, through the application of due process, by committing a capital offense. Abortion, however, is sentencing someone to death who has committed no crime, without due process.
We must remember that Liberty is not only freedom, but freedom fettered by morality. Some “social” issues that touch on morality are a matter of Constitutional relevance, and are essential to maintaining Liberty.
A State that does not SECURE its citizens’ RIGHT to LIFE is failing to fulfill the entire purpose for its creation.
KrisAnne Hall is an attorney, former prosecutor, a disabled Army veteran, a Russian linguist, a mother, a pastor’s wife and a patriot. Hall hosts weekly radio and TV programs and teaches an average of 265 classes each year on the Constitution and the Bill of Rights. Read entire article at krisannehall.com.
The Language of Liberty series is an outreach project of the Center for Self Governance, a non-profit, non-partisan educational organization, dedicated to training citizens in principles of liberty. The views expressed by the authors are their own and may not reflect the views of CSG. CenterForSelfGovernance.com
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