In the early days of the American Republic, a different form of government existed under the Articles of Confederation. This regime was scrapped due to the utterly ineffectual nature of the federal government under the Articles.
A new government model was needed.
With input from many leading statesmen, James Madison ultimately penned the Constitution of the United States as it now exists. It was presented to the states for ratification, as it would not become a binding set of laws until a state accepted it.
In order to convince the people of the states to ratify the new Constitution, debates were held in the most public forum possible at the time.
Newspapers carried the “Federalist Papers” to the American public. Literacy at the time was roughly 90 percent, rendering newspapers a very effective means to reach most people.
The Federalist Papers were originally written by Alexander Hamilton, John Jay, and James Madison. They are still one of the most easily digestible and clear commentaries available on the framers’ intent for the United States Constitution.
The antifederalists opposed the new Constitution for several reasons.
They feared the new federal court system, they believed that the office of the President was too similar to that of a king, they believed that Congress’s enumerated powers were poorly defined and could be abused, and they thought that the federal government would overpower the states.
Their fears appear to be justified by history.
The largest disagreement was over the inclusion of a written Bill of Rights. The antifederalists wanted one to be appended to the constitution and would oppose ratification until such a move occurred.
Indeed, antifederalists released the Antifederalist Papers as well. Historians are still not sure who wrote them, but the field has been narrowed to men such as Patrick Henry, Melancton Smith, and Richard Henry Lee, among others.
The result of these debates was a compromise in which the federalists received their Constitution mostly unmodified, but with the addition of a Bill of Rights. There were initially twelve amendments in the original Bill of Rights; generally, the first two do not count because they were legal clarifications and did not address the rights of the people.
This historical account is included because in order to answer the question, “Is abortion a constitutional right?” —which is the question of the day—one must understand the definitions of the terms “right” and “constitution” before approaching the core question.
What is a ‘Right’?
A “right” is a moral or legal entitlement.
In the context of the United States Constitution, a right relates to the national government and the civic body. The Constitution implies many rights, and it explicitly states others.
The Bill of Rights—the first ten amendments to the Constitution—exist to specifically enumerate rights that the antifederalists were concerned would be threatened.
Negative Versus Positive Rights
Political philosophers have divided the rights into two separate categories: “negative” rights and “positive” rights.
Negative rights are rights that require other people to be restrained. For instance, a citizen has the right not to be assaulted; violators of that right will be taken before a magistrate to answer to the charge of assault.
Positive rights require action from others. For example, the Affordable Care Act—otherwise known as Obamacare—relies on physicians supplying their services to individual citizens based upon the citizens’ rights under the law.
The proponents of the Affordable Care Act articulated a positive right to healthcare, such that a person has the right to competent healthcare from a professional healthcare provider.
There are serious ethical implications to having a “right” to someone else’s services. During the era leading to the American Revolution, it was common to refer to a free man’s right to “life, liberty, and property.”
In the Declaration of Independence, Jefferson instead chose the phrase “life, liberty, and the pursuit of happiness.” The change clarifies that men do not have a positive right to property, which would have to be provided by those who already have property.
They have a negative right to pursue property and to secure it through some legal means without trampling others’ rights—or, having the property provided to them by the government, which must confiscate it from someone else.
The Role of the Written Constitution
The United States Constitution was written by a group of thinkers who knew that government power was dangerous and should be restricted by explicit rules about what government cannot do.
They perceived the rights of mankind as “negative” in nature. The Bill of Rights exists to enumerate the actions that the federal government cannot do. If one were to reread the Bill of Rights with fresh eyes, it is plain that it does create new rights.
It states that the rights exist already and renders it illegal for Congress to infringe upon them. The rights written in the Constitution and the Bill of Rights truly preexist the constitution. This information should establish the definition of a “constitutional right.”
Today, the notion of a “constitutional right” is routinely misused. Technically, there are no “constitutional rights.” The Constitution merely protects those rights which have always existed and will continue to exist without any of the American founding documents.
However, in our context, we can assume that when someone claims a “constitutional right,” he or she is noting that the Constitution restricts infringement on the free exercise of some activity.
This is what pro-choice advocates mean when they argue for a constitutional right to abortion.
The Role of the Judge in Our System of Government
In the United States, judges have the power of “judicial review.”
This was determined in one of the first noteworthy cases of the newly-established Supreme Court of the United States: Marbury v. Madison. This is the primary “check” against the legislative branch that the judicial branch possesses in its arsenal.
In the system of English Common Law—from which most of the United States Constitution is derived—much of the constitution was unwritten. Indeed, judicial opinions are an exception. The United States Constitution was put in writing to prevent it from becoming adrift over the years.
Judges have the task of evaluating the laws passed by the legislature and the enforcement of those laws by the executive to determine if they conflict with the Constitution—the supreme law of the land. Simply put, the Constitution is a list of rules for government to follow, not for the people to follow.
Judges ought to be guardians, ensuring that the government stays within its assigned duties and enumerated powers and does not deprive any citizen of rights without just cause and due process.
So, is abortion a constitutional right? There are two possible answers to this question. Either the answer must be that there is a right to abortion protected by the Constitution, or that the framers rejected abortion and the Constitution’s very wording makes abortion illegal. If the latter is true, the state must uphold that truth or collapse under its own illegitimacy.
There is no neutral position. The Constitution is not silent on the issue of abortion, even though it never explicitly utilizes that term. The text of the and context of the United States Constitution disallows abortion altogether.
Abortion is not a right. On the contrary, the primary right enjoyed by people made in God’s image is the right to life.
Abortion is a direct violation of the right to life.
The Rights of Man
During the Enlightenment—which was a major influence on the development of the Constitution—philosophers dedicated much ink to the question of the origin of the rights of man.
Since most of those philosophers were educated in a Christian society, they maintained a “theistic” worldview. Some of them were not Christians, but they all acknowledged the existence of a Creator God. It was relatively simple to trace the rights of man back to the God who made man in His image and imbued him with special dignity.
The Enlightenment also brought many erroneous attempts to find a source for the rights of man outside of God. The most common option was the “laws of nature,” and the language of “natural law” became common within the educated classes at the time.
Most honest philosophers who were writing in those days acknowledged the source of natural law; often, the notion of “the laws of nature and nature’s God” was seen in the essays of the day.
It is impossible to account for any version of moral or legal entitlement without a moral God to define what is lawful. This is, indeed, the “home turf” of Christianity. God is immutable, and He has given us laws and moral guidance. A study of the Scriptures reveals that God is the source and defender of all human rights.
There is a right to life because it is unlawful to take life without cause—only God can define the justified taking of life. There is a right to property because God prohibits coveting and theft. There is a right to pursue happiness because God has revealed Himself to His creation and sent