The Founding Fathers and the Right to Life

Jameson Taylor
Permission Granted

The Declaration of Independence draws a very clear line between sanity and insanity by proclaiming the existence of certain self-evident truths that all rational men should recognize: “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.”

A self-evident truth is, by definition, evident to anyone who is sane. Persons who do not accept that all human beings are endowed with an inalienable right to life—for example, the 82 percent of Americans who think abortion should be legal—are, by this definition, insane.

The right to life is inalienable because it is not of human, but of divine origin. 1 Because man does not create himself, he cannot deprive himself of the primary goods that are inherent to human existence: life, freedom and happiness. Just as no government can deny its citizens these inalienable rights, neither can a man deprive himself of these rights. The “inalienable” right to life thus precludes abortion as well as suicide.2

A Closer Look at Roe

But what about Roe vs. Wade? Does a “penumbra,” or shadow, of the 14th Amendment guarantee a right to privacy that includes the right to an abortion?

The fact is, as Justice Byron White’s dissenting opinion in Roe vs. Wade concluded, there is “nothing in the language or history of the Constitution to support the Court’s judgement.” Indeed, just as the logical development of the Declaration’s recognition of man’s inherent liberty required federal intervention to abolish slavery, the Declaration’s acknowledgment of the inalienable right to life would seem to favor federal intervention to end abortion. 3

James Wilson’s “Lectures on Law,” given at what eventually was to become the University of Pennsylvania, clearly affirm that the right to life encompasses the unborn. Wilson was one of only six men to sign both the Declaration and the Constitution, and was a Supreme Court justice from 1789 to 1798. Recognized as “the most learned and profound legal scholar of his generation,” Wilson’s lectures were attended by President George Washington, Vice President John Adams, Secretary of State Thomas Jefferson and a “galaxy of other republican worthies.” For this reason, as constitutional scholar Walter Berns states, “Wilson, when speaking on the law, might be said to be speaking for the Founders generally.” So what do the Founders say about the right to life?

Wilson clearly answers this question: “With consistency, beautiful and undeviating, human life from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”4

Given Wilson’s exegesis, one cannot doubt that the Founders recognized that unborn infants are owed the full protection of the law. The key question thus becomes the point at which the unborn fetus becomes an unborn child.

Wilson, in agreement with the limited medical jurisprudence of his time, assumed that life begins with the “quickening" of the infant in his mother’s womb. As taught by Aristotle, the quickening was the point at which the fetus was infused with a human, rational soul. John Bouvier’s Law Dictionary, first printed in 1839, defines the quickening as follows: “The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. This happens at different periods of pregnancy in different women, and in different circumstances, but most usually about the fifteenth or sixteenth week after conception….”

One of the sources of both Wilson’s and Bouvier’s opinion is William Blackstone’s widely read Commentaries on the Laws of England (1765-1769). Blackstone’s discussion of the quickening observes: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb… this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor…"

The ancient law referred to by Blackstone is best articulated by Henry Bracton (1216-1272), the renowned “Father of the Common Law.”5 As Roe reluctantly admits, Bracton categorized the abortion of a “formed or quickened” fetus as a form of homicide, “the slaying of man by man.” Wilson seems to agree with Bracton on this issue, and thus affirmed that the inalienable right to life applies just as much to unborn, quickened human beings as it does to any other human beings. The fact that Blackstone emphatically characterizes abortion as “a very heinous” crime suggests he may sympathize with the ancient law on this matter.

Needless to say, the Founders undoubtedly recognized that unborn infants older than 15 weeks possess a constitutionally protected and inalienable right to life. Given that, according to Planned Parenthood, at least 90 percent of all abortions occur in the first trimester, this conclusion seems almost irrelevant. To begin with, however, the obvious intentions of the Founders as well as the weight of the common law compel the Congress and the courts to prohibit abortion—for any reason—in the second and third trimesters. Abortions performed during these late stages are clearly murder—and cannot be justified by a penumbra of the 14th Amendment, the mother’s health or a woman’s “right to choose.”

Pro-abortionists assert that any restrictions on access to abortion in even the second and third trimesters are bound to result in the prohibition of abortion altogether. By the same logic, however, society would have no right to forbid any crime. The reason abortionists claim that women have an absolute right to an abortion at any time is because they recognize that even the right to an abortion during the first trimester is arbitrary. Douglas Kmiec, professor of constitutional law at the University of Notre Dame, discussed this point in his 22 April 1996 statement before the House Committee on the Judiciary. Kmiec’s analysis of internal Supreme Court memoranda related to Roe vs. Wade revealed that Justice Harry A. Blackmun, author of the Roe majority opinion, even admitted to his fellow justices that “you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point…is equally arbitrary…” (emphasis added).

What are we to make of this shocking statement? Perhaps the justices did not know that an infant’s heart begins beating at five weeks or that at eight weeks brain waves can be measured or that at 12 weeks the child can and does cry and sometimes sucks his thumb.

Abortion is legal today not because the justices did not know when life begins, but because the justices—as well as the 82 percent of Americans cited earlier—do not know what liberty is. For most Americans, liberty is the subjectively defined right to do whatever you can get away with. Sandra Day O’Connor memorialized this faulty conception of freedom in her 1992 Planned Parenthood vs. Casey decision, which claimed that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

America’s Founding Fathers would have condemned such an opinion as madness. Because both life and liberty are “endowments” or “gifts” from God, the proper exercise of liberty requires that man adhere to the “laws of God and Nature’s God” in the use of his freedom. When James Wilson stated that life begins with the infant’s “quickening,” he was not making an “arbitrary” decision as to who is human and who is not. Wilson’s opinion was based upon a reasonable assessment of the best scientific, legal and philosophical opinions available at the time.

Had Wilson and the Founders had access to the discoveries of modern biology, they certainly would have agreed that life begins at conception. Medical discoveries in the years following the American Revolution increasingly encouraged American and English lawmakers to come to this conclusion. In 1803, for example, England adopted a law known as Lord Ellenborough’s Act that made it a capital offense to “cause and procure the Miscarriage of any Woman quick with child.” The law established severe penalties for aborting infants in the first trimester as well: “…if any Person or Persons…shall procure to be used or employed, any Instrument or other Means whatsoever, with Intent thereby to cause or procure the Miscarriage of any Woman not being, or not being proved to be, quick with Child at the Time of administering…that then and in every such Case the Person or Persons so offending, their Counsellors, Aiders, and Abettors, knowing of and privy to such Offence, shall be and are hereby declared to be guilty of Felony, and shall be liable to be fined, imprisoned, set in and upon the Pillory, publickly or privately whipped. …"

Bouvier, citing Theodric and John Beck’s 1835 Elements of Medical Jurisprudence, himself questions the age-old idea of the quickening, noting that “physiologists, perhaps with reason, think that the child is a living being from the moment of conception.” More to the point, Bouvier’s entry, “Foeticide,” comments that “recently, this term has been applied to designate the act by which criminal abortion is procured.” Such scholarship soon bore fruit, with Maine, in 1840, becoming the first state to ban the abortion of infants “quick or not.”6

Subsequent federal and state laws banning abortion altogether were a logical development of the Founding Fathers’ absolute reverence for the self-evident and inalienable right to life. It is no accident that the Declaration, as written by Thomas Jefferson, characterizes the right to life as the first of those three foundational rights for the sake of which government itself is instituted. Where there is no guarantee of the right to life, legitimate political authority simply does not exist. Where there is no guarantee to life for both the weak and the strong, the rights to liberty and the pursuit of happiness for all are themselves at risk. The “New Freedom” heralded by the Supreme Court and other partisans of the Sexual Revolution has thus turned into nothing less than a new enslavement. Only when we as a nation return to our faith in the Creator who gives us life and liberty will we again be truly free.


1  “Our liberties do not come from charters; for these are only the declaration of pre-existing rights. They do not depend on parchments or seals, but come from the king of kings and the Lord of all the earth.” John Dickinson, Founding Father and author of the Articles of Confederation. [Back]

2  “Nobody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it.” English philosopher John Locke, II Treatise, iv. [Back]

3  As recognized in Holy Trinity vs. U.S. (1892), the Declaration is part of the “organic” or “fundamental” law that provides the context within which the Constitution must be interpreted.[Back]

4  “Lectures on Law,” Ch. 12, p. 597 in The Works of James Wilson. ed. Robert G. McCloskey (1967).[Back]

5  Joseph Story, Supreme Court justice from 1811-1845, states that at the time of the Founding, “the common law of England [was] the fundamental law of all the Colonies.” See also Ex Parte Grossman, 267 U.S. 87, 108.[Back]

6  Justice Rehnquist’s dissent in Roe vs. Wade mentions that by the time the 14th Amendment was adopted in 1868, 36 states and territories had enacted abortion laws. The Maine statute of 1840 is referenced in Brian Young’s “A Brief Survey of U.S. Abortion Law Before the 1973 Decision.”[Back]