Let the Rule of Law Life Act Replace the ‘Heartbeat’ Bill

Nov 15, 2019 by David Fowler

pregnant woman looks at pictures of baby
At the conclusion of two days of testimony in August before the Judiciary Committee of the Tennessee Senate on Senate Bill 1236, known as the “heartbeat bill,” I was asked by the committee’s vice chair, Senator Jon Lundberg, to rework the bill in order to present to the committee the strongest pro-life bill I could, framed under the Ninth Amendment to the U.S. Constitution. That work is done. Here, in sum, is what I have now given to the committee’s chair, Senator Mike Bell; the sponsor of Senate Bill 1236, Senator Mark Pody; and the governor’s chief legal counsel, Lang Wiseman.

What is the Ninth Amendment?

At the August hearing, I presented testimony, along with law professor Adam MacLeod, an expert in legal philosophy, that under the Ninth Amendment “the people” had “retained” to themselves “other rights” not enumerated in the U.S. Constitution.1

We noted that the Ninth Amendment also contains a statement that the rights enumerated in the Constitution—such as those in the Fifth Amendment to “life, liberty, and property” and reiterated in the 14th Amendment—“shall not be construed to deny or disparage” those “other rights.”

Our testimony noted that those “other rights” would necessarily be those that the people had under the common law, and I proposed that the state’s abortion laws should be drafted in a manner that secured those “other rights.”

By relying on the Ninth Amendment as justification for the abortion law, legislators would be telling the U.S. Supreme Court that either they could have their 14th Amendment abortion jurisprudence but it was irrelevant to a Ninth Amendment-based law, or their 14th Amendment abortion jurisprudence must be reversed because it does what the Ninth Amendment prohibits—denies other rights, namely, the right to life.

Where would the legislature and the U.S. Supreme Court find these ‘other rights’?

As to these “other rights,” the testimony was that the Court has a long history of defining and understanding words in the U.S. Constitution by looking to their meaning at common law. Professor MacLeod’s un-rebutted testimony was that the common law provided the “lexicon” by which the words and phrases in the U.S. Constitution would have been understood.

In other words, the common law provided the original meaning for the words to be interpreted by the Court.

This point is critical and underappreciated by those who don’t really care about law as such but merely want to count how many justices might vote to uphold an act of the legislature. The reason: There are now five justices on the U.S. Supreme Court, including Justice Kavanaugh, who have made clear their belief that the Constitution should be construed according to its original meaning; that is, it is not a “living” document into which they can infuse new meanings into established principles of constitutional law.

When it comes to counting votes on the Court, it is the jurisprudential philosophy that one should look for, and there are now five ‘original meaning’ justices on the Court.

What is the Common Law?

When it comes to the common law and common law rights, the U.S. Supreme Court has consistently looked to William Blackstone’s Commentaries on the Law of England for understanding, even to the present day. In his Commentaries, Blackstone defined common law as “leges non script [literally, “unwritten laws”], because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.”

In other words, common law precedes and exists apart from any positively enacted laws, whether they are “enacted” as part of a written constitution or by a legislative body. And protecting or securing our common law “rights” was said to be the first duty of civil government.

It was to secure their common law rights, which were being abridged by the King of England and Parliament, that the 13 colonies declared their independence from England.

How Does Common Law Relate to Abortion?

At common law, Blackstone wrote that the “absolute rights” of mankind, those to be secured by civil government, “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.”

Given that Blackstone said the phrase “right to personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation,” we now see that the very words of the Fifth and 14th Amendments, “life, liberty and property,” come directly from the common law!

And “life,” said Blackstone, “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. . . . An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.” Of course, in thinking about this rather crude understanding of when law attaches to life, one needs to keep in mind that the modern understanding of conception and the beginning of life at conception was not known until the 1800s, years after Blackstone (and those before him) wrote that statement.2

What Does the New Legislative Language Do?

The legislation, the Rule of Law Life Act, is intended to secure the right to life of the unborn child on the ground that it is one of the rights encompassed within a correct understanding of the “other rights” to which the Ninth Amendment refers. It asserts, as did professor MacLeod, that nothing in the 14th Amendment itself takes away the right “retained by the people” under the Ninth Amendment to protect the common law right to life.

The legislation essentially puts the U.S. Supreme Court’s opinions on abortion construing “liberty” under the 14th Amendment on a direct collision course with the rights of the people under the Ninth Amendment to secure the common law right to “life.”

In the process, the legislation exposes the fact that the words “life, liberty, and property” in the 14th Amendment come from common law and have been given a tortured meaning by our “living constitution” justices. The current five “original meaning” justices will understand the point—the Court needs to return to the original meaning of these words.

The legislation’s insistence on the Constitution being given its original meaning and the Constitution being treated as law, not judicial opinions, is why I titled it the Rule of Law Life Act. In my view, we need to get the words “heartbeat bill” out of our vocabulary and insist that our elected leaders and our Supreme Court uphold the rule of law.

Why the Legislation Was Written the Way It Was

The proposed legislation is long, with numerous citations to Blackstone’s Commentaries and to U.S. Supreme Court decisions. The 121 “Whereas” clauses are designed to avoid any confusion among the Supreme Court’s justices as to the legislation’s intent and constitutional grounding.

I know the number of “Whereas” clauses may frustrate the casual reader and legislators who are pressed for time to read even three- and four-page pieces of legislation; however, the legislation wasn’t written for the casual reader. It was written with an eye toward the lawyers who will oppose it (or dismiss it out of hand, because they hadn’t thought of this argument themselves) and the justices on the U.S. Supreme Court.

However, I have prepared a summary of the various “Whereas” clauses by categories that I hope will be of help to those who can’t read the whole thing.

Lastly, the language of the bill has been reviewed by Liberty Counsel, a national conservative public interest law firm, and the organization has said it will defend the bill from constitutional attack if Attorney General Slatery won’t.

Where, Then, Do Things Stand?

So, all the work has been done. Chairman Bell and the members of the Tennessee Senate Judiciary Committee will have to decide what to do with it. And the governor will have to decide if he will support it.

We’ll know what they decide when the Tennessee Legislature reconvenes in January, but, in my opinion, it is time to bring an end to Roe v. Wade through the Rule of Law Life Act.

1. The full text of the Ninth Amendment is this: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
2. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1439-0531.2012.02105.x
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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