The Original Understanding of Substantive Due Process

The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.

Considering this history helps us to understand why conservatives would attack the decisions in Roe v. Wade (1973) and Obergefell v. Hodges (2015) using the same arguments they were already using against the liberals on the Court. Still, they shouldn’t do so. For as much as some conservatives may not like it, so-called “substantive due process” is valid. As I will argue below, there are other, stronger arguments against these two decisions that conservatives would like to see set aside.

First, let me address what substantive due process is. It’s very simple to explain, starting with the text of the Fifth Amendment to the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment uses the same language as applied to the states, and therefore applies the meaning of the Fifth Amendment against the states.

Let’s assume for a moment that the phrase “due process of law” is entirely procedural (although this is debatable), describing the process of indictment, a trial before a neutral judge, and resulting in a conviction.

Substantive due process means that these legal procedures have to have taken place before a person’s substantive rights to life, liberty, or property can legitimately be denied. A violation of substantive due process could be committed by the executive (such as imprisoning a defendant without completing these procedures), or by the legislature. When an act of the legislature purports to authorize the executive to take a person’s life, liberty, or property without going through this process in the courts, that is unconstitutional. It is also unconstitutional if the legislature directly takes a person’s liberty without first going through this procedure in court.

A person’s liberty is the right to do those acts which do not harm others. The statute prohibiting a person from leaving a jail cell takes a person’s liberty just as much as a guard who physically prevents the person from leaving.

As defined by Thomas Jefferson,

Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add “within the limits of the law”; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

In the case of Korematsu v. United States (1944), the U.S. Congress authorized the President to prohibit people from entering or remaining in a military zone when prohibited from doing so by executive order. The President created a zone that applied to the western coast of the United States to those of Japanese ancestry, except for small pockets of internment camps. This act took the liberty of those with Japanese ancestry without first subjecting each of those people to the judicial process of indictment, trial, and conviction.

In Meyer v. Nebraska (1923), the Nebraska legislature prohibited even private schools from teaching in any language but English. This took their liberty to teach in the language of their choice without first going through any process of indictment, trial, or conviction. Before any individual’s liberty—such as the act of teaching in the language of their choice—can be taken away, that individual must be convicted of a crime in a court of law. Any statute passed by the legislature that prohibits a person’s acts of liberty prior to the judicial process of being convicted of a crime violates the Fourteenth Amendment’s Due Process Clause. The government can control public schools, but not private education, in which people have the liberty to teach each other and their children as they choose.

Now let us return to Roe and Obergefell.

The problem with Roe wasn’t in the failure to give deference to anti-abortion laws passed by state legislatures—it was in not recognizing that the unborn baby is a person at quickening according to the common law. As the Court said in Roe:

In a frequently cited passage, Coke took the position that abortion of a woman “quick with childe” is “a great misprision, and no murder.” Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), “modern law” took a less severe view.

Quickening isn’t a word we hear a lot today, but it derives from the word “quick,” which meant “alive,” so quickening meant literally becoming alive and applied to when the mother could feel the baby moving (as early as 13 weeks, although it may be as late as 18 weeks). The Court went on to say that Coke and Blackstone “intentionally misstated the law.” This is not so; and it is here that the Court went wrong in rejecting out of hand the long-held understanding of quickening as the point at which a person is recognized by law.

Considering Roe alone—without the later abortion cases—the Court may have come close to this common law understanding, recognizing the state’s interest in “protecting potential life” at the point of viability instead of quickening. The Court should have instead allowed state lawmakers to ban abortion after quickening but not allowed them to ban abortion before quickening. This would have preserved the common law understanding of when the right to life begins and preserved the mother’s liberty to control her own body prior to this point.

It is the original understanding of those who wrote the Due Process Clauses that is important to an originalist, which is why the common law understanding of these terms should prevail.

I am a Catholic who believes that life begins at conception and that abortion at any stage is a sin; but that is not the question. The role of judges—and the Supreme Court—in our society is not to impose their beliefs on the nation. Instead, they must ask what was the original understanding of the Constitution at the time it was ratified.

In this case we must ask when did the Founders believe life began for an unborn baby, and thus when could the government prohibit the taking of that life without taking the liberty of the mother over her own body? While most of the Founders were Protestants, the Protestant Reformation accepted the Catholic teaching on abortion that existed at that time.

Starting with Pope Innocent III in 1211, the church held that prior to “animation,” an unborn baby was not ensouled and so at that point terminating the pregnancy was not considered murder. This was eventually identified with the time when the mother first feels the movement of the fetus, which became the official, consistent opinion of the Roman Catholic Church (except for three years from 1588 to 1591)—and became part of English common law—until Pope Pius IX in 1869 released the bull Apostolica Sedis Moderationi. This was long after the ratification of the Fifth Amendment.

Any idea that the Founders believed that life began at conception is just wrong—they believed it began at quickening. Even if you do not believe life begins at quickening (as I do not), we must accept as a society that others will believe things that we do not. Are we really willing to say that a person should be thrown in jail for a belief that was the official Catholic position for half a millennium?

I hope that one day we can pass the Human Life Amendment to the Constitution and decide as a society that life begins at conception. But until that day arrives, it is not a judge’s job to decide for society when life begins rather than accept the original meaning of the terms “life” and “liberty.” Nor does the Tenth Amendment say that the states must decide this issue. The issue—consistent with the Tenth Amendment—is reserved to the people.

As to Obergefell, it uses the term “liberty” incorrectly. The right to liberty, as I said, describes a person’s right to do those acts which do not harm others. There is nothing in a state law that prohibits recognition of a marriage by that state’s government that could possibility prohibit any act by an individual. Two gay individuals could get married in any church that would accept them even prior to Obergefell. Prohibiting that would be a problem under the Fourteenth Amendment Due Process Clause. A state is not required under the Fourteenth Amendment’s Due Process Clause to recognize any marriage at all. Lawrence v. Texas (2003) more correctly invoked the Due Process Clause: Two gay people having sex does not harm any other person and therefore that right to liberty cannot be taken away without due process of law.

The argument for equal rights for gay couples is more correct than the due process argument for recognition of gay marriages. The state cannot properly grant some people benefits (such as tax benefits) without those being available to everyone, including gay individuals. This has nothing to do with requiring the name “marriage” instead of “domestic union” or another term, but with giving substantive rights to some but not others.

Understanding the original meaning of the Due Process Clause is important. Attacking judges for trying to do so rather than just defer to legislatures doesn’t help further the conservative cause.

Devin Watkins

Devin Watkins is a legal associate at the Cato Institute. He graduated from Antonin Scalia Law School at George Mason University, where he was the Developments Editor on the George Mason Law Review.

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  1. gabe says

    Devin:

    Rather well presented. Was unaware of Catholic teaching on the issue prior to `1869. Interesting, indeed!

    couple of questions / comments:

    “Nor does the Tenth Amendment say that the states MUST decide this issue. The issue—consistent with the Tenth Amendment—is reserved to the people.”

    Is this a little strong? Clearly, the States are not OBLIGATED to make such a determination – but surely, they may? As you concede, if the People may decide such a question, even if that determination is at variance with original meaning, why not the States? It is not clear to me that the States are *prohibited* from doing so.

    Agreed, that the proper means, the “originalist” means of addressing this would be through Article V amendment. It is im-proper for a select number of Black Robes to make these determinations that are, as you point out, inconsistent with the general and original understanding of the Framers / Ratifiers.

    “The state cannot properly grant some people benefits (such as tax benefits) without those being available to everyone, including gay individuals.”

    Hmmmmm!!!!!
    Let us suppose that the State desires an increase in its birth rate. Would it be proper to provide significant tax reductions to parents of newborns? and perhaps, a lesser incentive to parents of adoptees? This could be seen to adversely affect male gay couples. What should be the determination.
    The tax code has been used for all manner of social goals; it often is not available to all citizens. The Courts and the Legislature have approved of this.

    I’ll not trouble us with any more examples – we could all conceive of dozen apparent exemptions / special circumstances. Heck, I don;t want to be accused of being *clever*.
    So to the point:

    Under this view of liberty and its substantive due process rationale, what role would the “concerns of the community” play in the moderation of individual liberty. A community is nothing but the willful acts of its members to assume certain obligations restricting their own behavior – and sometimes even if that behavior is not thought to harm anyone else.

    Any event, liked the piece and I share your views on the subject(s). It is rather “engaging.”(without going too far).

    • Devin Watkins says

      I meant “must” as in, it is required that the states and not the constitution decide the issue, which is not correct if the original meaning of the Constitution decided the issue. If you accept the meaning of the terms life, liberty and the “due process of law” given above, then the people have already decided the issue in the Constitution and the states may not decide differently.

      If the state decided to give tax benefits to the parents of young children this could be applied equally between gay and same-sex couples. Gay couples can adopt young children too.

      Just because the community does not like the actions of another person, if it does not harm anyone, then community doesn’t get to decide the issue. It’s none of their business.

      • gabe says

        Agreed on first reply – was not clear what you meant.

        As to adoption: My example specifically called for a different benefit for birthing children as to adopting them – say in the case of sustained low birth rates. What say you – and what would that portend for “overriding community concerns / needs?

        As for last reply, I tend to agree; however, – e.g current opioid “abuse” issue: should personal use (and abuse (overstated BTW) be regulated / prohibited by the State. Is this proper?

        Again, what I am stumbling around trying to say is this:

        At what point is it consdiered proper for the community to say: Well, buddy, we know that this may be within your sphere of liberty BUT we as a People sure as heck don;t like it and believe that it will be harmful in the long run?

        The example of “english only” comes to mind.

        What say you?

        • Devin Watkins says

          “Harmful in the long run” to whom? To the person who is doing the act? If so then it does not harm other people and within your right to liberty. If the act is harmful to the rights of other members of society then it can be prohibited.

          Let’s say the government gave money to the mother upon the birth of a child. This may be consistent with the equal protection clause. But it really isn’t the point of the article which was mostly on the substantive due process and not the equal protection arguments (Although I do know I talk about them a little at the end, but just to flag that there are different arguments that may be stronger in that area).

          • Paul Binotto says

            “If so then it does not harm other people and within your right to liberty.”

            What becomes of, “Corruption of the Morals of Minors” type laws under a situation where the community/state no longer can constitute was is moral, and in turn, what is immoral for a “minor” to be exposed to by an adult?

            “The Pennsylvania Superior Court has attempted to define the phrase “corrupting the morals of a minor” by explaining that it includes actions that would offend the common sense, sense of decency, propriety, and morality which most people in the community entertain.”

            Arguably, for some communities, having a child “exposed” to non-traditional relationships (i.e. same-sex persons romantically kissing or embracing in public) might constitute a corruption of the child’s morals, (this, where the community might view heterosexual romantic kissing/embracing in public, to be in poor taste, but not immoral), because (in the communities view) it might legitimize for a minor (what for some communities) what might be considered abhorrent behavior.

            Does the (federal) court rule, “no harm/no corruption” to a child’s morals in this community, despite a public behavior defined by this particular community to be, “actions that would offend the common sense, sense of decency, propriety, and morality which most people in the community entertain”?

            Or as some offense may be described, “in a way that would outrage reasonable community sensibilities”?

            Who gets to decide what and at what point a behavior (even explicit sexual behavior), becomes corrupting to a minor’s morals; or does virtually nothing constitutionally qualify as morally corrupting, short of touching a child, under a constitution that does not provide for a common morality as a basis for law because it limits another person’s liberty, and therefore, these types of laws should rightly be tossed on the trash-heap of history?

          • gabe says

            Paul:

            Interesting indeed.

            Here is something which may illustrate the dangers of the “loosening” of common decency wherein the age old notion that a 10 year child is unable, under any circumstances to *consent* to rape, is overthrown by a jurist.

            https://www.thelocal.at/20161021/verdict-on-swimming-pool-rape-case-overturned

            Clearly, this is not something that Devin is arguing; yet, it remains true that without an essential ground, an overarching attachment to sensible community standards, jurists, certain jurists that is, may prove unable to recognize the obvious, i.e., that the rape of a child is never to be contemplated w/o severest of penalties, as the jurist is blinded by some unique conception of the law and its “meanings.”

            Again, at what point does the common understanding of a polity cease to have any import?
            This continues to be my concern. Liberty, yes! but obligations to the community as well!

          • Paul Binotto says

            Thanks, Mr. Gabe. Your link is an excellent example of the kind of outrageous results that can occur when, as you so rightly state, “common understanding of a polity cease to have any import.”

            I share your concerns over these current trends, and the eventualities they portend.

            Best,
            Paul

          • Devin Watkins says

            @ Paul Binotto

            So while children have all the same natural rights as adults (the founders would say they were given to us at birth by our Creator), the parents and state act as guardians for those that cannot reasonably be expected to protect their own interests (the same applies to some mentally ill people). It is for this reason that the state prohibits children from consenting to have sex, buy alcohol, enter into binding contracts, or other things that are likely to cause harm if not done with care not expected of a child. The limits of these additional powers of the state over children are the same as if the child were an adult where the state is acting on their behalf. So the government can prohibit you from buying/selling things to children, or preforming other actions that that require consent (such as sex or contracts). But if a law such as “corrupting the morals of minors” included Constitutionally protected acts such as those protected by the First Amendment to say what I want or things which cause harm to no one else (such as same-sex individuals kissing on their own property) then no I would say that would not be within the proper power of the state to prohibit even to “protect” children.

          • Paul Binotto says

            Mr. Watkins,

            Thank you very much for your reply and for your opinion regarding my question.

            Whereas, you offer an assessment on the inappropriate reach of the state, in the interest of protecting children, from constitutionally protected acts that cause no harm to others, making the distinction that the protected act occurs, “on their own property”, I wonder does your opinion still hold, when as I framed the question, the act occurs in a (more) “public” setting, granting of course, that an act occurring on one’s own property may or may not be “public”?.

            I only press this issue in light of a recent case in point; not one of corrupting minors, but of “open lewdness and indecent exposure”. In June 2016, a suburban Pittsburgh man was charged with four-counts of “open lewdness and indecent exposure” for masturbating on the back deck of his home. The man’s neighbors video-taped the act from their property and he was subsequently charged by police.

            Here is one link: http://triblive.com/news/westmoreland/10719341-74/district-blahusch-franklin

            It will be interesting to see how the courts ultimately dispose of this case.

            Thanks again!
            Paul

          • Devin Watkins says

            The traditional understanding of the police power included allowing the state governments to regulate public morality. A person’s natural right of liberty included harm to property interests as not within the scope of a person’s rightful liberty. The public in ownership of public spaces such as streets and parks can to some extent protect what happens there to allow everyone to be able to use that property. Public obscenity, nudity, masturbation, sex were all things that could be prohibited in these public areas based on the property rights of the public so that everyone could feel safe in using these areas. The prohibition on these publicly obscene acts were extended also to those acts that occur on private property but in public view under a kind of nuisance harm to that public property. Sex, nudity, masturbation and other such acts could not be prohibited in private, but the founders did consider them to cause harm to the property interests of the public.

    • pl.binotto@verizon.net says

      Mr. Gabe,

      I understand you offer only a hypothetical, but wouldn’t it seem odd that the state, interested in increasing birth-rate, would not extend comparable tax-incentive (assuming private or public insurance will cover the medical prenatal & delivery costs and assuming it costs birth and adoptive parents comparable expense to raise a child), to both birth and adoptive parents, as it might be presumed that any tax-incentive to birth parents would necessarily include both married and unmarried birth parents; and whereas, the unmarried mother is most likely, without incentive of tax-rebate + option to give it up for adoption, to abort her baby? – thus, the state, to encourage unmarried mothers to carry a child to birth, might incentivize adoption to create greater willingness to adopt? Not sure if I am clear, but I hope you can get my gist.

      Additionally, what prohibitions does the Constitution contain regarding polygamy, and might not a state incentivize polygamy in the interest of increasing birth-rate, say in instances of prolonged war where large percentages of the male populations have been killed and the female population of a country becomes greatly disproportionate to the male population?

      Of course, this ignores what any company knows by way of experience, child bearing is the single greatest medical cost to an insurance company for companies with large percentages of child-bearing aged employees (male and female), and any tax incentive to encourage increased birth rates would also have to be extended to the medical insurance companies, or they will simply stop covering prenatal and birth medical costs. Major Medical Companies have as much interest, or more so, in sustaining legalized abortion as Planned Parenthood.

      • gabe says

        Paul:

        Yes, it was a hypothetical and as such should be viewed only as my feeble attempt to “flesh out’ the boundaries of permissible state, community and individual actions.

        What is permissible may not always be proper; what is proper may not always be permissible.

        Ultimately, the questions is: who decides?

        Substantive due process does indeed serve a useful function; it can also be extended beyond its apparent utility AND beyond the common sense understandings of the community – not to mention the Constitution (which incidentally is the codification of the communities collective common sense).

        • Paul Binotto says

          Mr. Gabe,

          Your hypothetical was not at all feeble, in fact it is a very good one; it got me thinking clearly (or not, you can be the judge), and advanced my understanding. I tend to believe, the state(s) can indeed regulate/limit/define marriage, and prohibit abortion, (within the confines of the Constitution as it now reads), and one need not even bring the religious subjective into the question.

          Thanks for suffering my constant questioning and banter –

          Paul

  2. Mark Pulliam says

    David Bernstein has spent decades rehabilitating Lochner. This piece inadvertently sets back the originalist case for protection of economic liberties by conflating Lochner with gay rights, abortion rights, and an undefined right to individual autonomy. This piece could have been written by Lino Graglia or the late Robert Robert to discredit Lochner. With “friends” of Lochner like this, who needs enemies?

    • gabe says

      “This piece inadvertently sets back the originalist case for protection of economic liberties by conflating Lochner with gay rights, abortion rights, and an undefined right to individual autonomy.”

      Why?

      Because of the response of some who are opposed to gay rights, etc.??? or is there some legal / constitutional issue at play that you believe would lessen economic liberty IF gay rights are to some extent affirmed.???

      Color me curious.

    • Devin Watkins says

      I don’t think this set’s back the originalist case for protection of economic liberties at all. The question is do you think the restriction on hours of bakers presented in Lochner does not harm the rights of others? If so, that is the majority position in Lochner, if not that is Justice Harlan’s dissent.

      If you mean that some conservatives are not going to embrace the original meaning of these terms (as defined above) because of the outcome, then maybe you’re right. But that doesn’t mean such a decision by some conservatives is good. What you seem to be suggesting by this is that these conservatives have decided what the correct outcome is, and then justify this pre-ordained outcome in constitutional language. Such a method of reasoning, if you are correct, would be wrong and be a rejection of originalism itself (not merely economic liberty).

      • Mark Pulliam says

        For originalists (as opposed to objectivists and Randians), the issue is not whether restrictions on maximum hours for bakers “harm the rights of others,” but whether the original meaning of the Constitution protected the right to earn a living from protectionist measures masquerading as the police power. Economic liberties and property rights have been regarded as important rights going back to Magna Carta. The notion that gay rights, abortion rights, and a generalized “right to individual autonomy” were enshrined in the Constitutional would have been laughable to the Founding Fathers.

        • Devin Watkins says

          Where do you get this “right to earn a living” from the Constitution? I do believe this is protected by the Constitution as a part of a person’s liberty (under the due process clause) or the Ninth Amendment. The police power is meant to define those things that harm the rights of others in society, and therefore can properly be prohibited by society. Things prohibited merely for “protectionist measures” are things prohibited not because not because they harm the rights of others and therefore are unconstitutional.

          I totally agree with the statement: “Economic liberties and property rights have been regarded as important rights going back to Magna Carta.” That’s why the due process clause includes the word liberty in it (which includes economic liberties as well), and the word property and protected parts of the due process clause (the history of the due process clause goes all the way back to Magna Carta).

          I disagree with your statement that the “‘right to individual autonomy’ were enshrined in the Constitutional would have been laughable to the Founding Fathers.” If you define “right to individual autonomy” as the right to liberty as Thomas Jefferson defines above. The right to liberty was clearly enshrined in the Fifth Amendment to the Constitution.

          • gabe says

            Devin:

            I think both you AND Mark on correct with respect to the *laughable* matter.

            Yes, the founders did defend individual liberty.
            Yes, the Founders would find it *peculiar* that said liberty would now encompass practices that were quite alien to them.

            We must confront the fact that liberty to the founders was bounded by an understanding of ones proper *place* in a larger community and one which rightfully, to their minds, set expectations of good and moral conduct.

            That those expectations, those mores, change over time is inescapable.
            That the protections offered for liberty would change is arguable; to my mind the Framers build in sufficient flexibility to account for such change.
            The question, I think in the mind of many, is not so much if is this constitutional but is it proper change AND more importantly “Who is the author of such change.”

            A question therefore for Mark:

            If the courts did not rule as they did in Roe and Obergefell(and their lineage), but instead the people themselves had determined over the Course of time that SSM was to be permitted would one still find issue with a) the nature of the change (leaving aside any religious objections for the moment) and b) judicial determinations employing Substantive Due Process theory to sustain the *peoples* choice?
            And what would that say about liberty”?

            Again, I repeat my call for Kevin Hardwick to do a piece on “constitutional change over time.”

          • Mark Pulliam says

            If the Framers thought that gay rights and abortion (among other individual rights supposedly protected by your originalist conception of substantive due process) were enshrined in the Constitution, how can you explain why they were not not recognized at common law and were prohibited by most states’ laws at the time the Constitution was ratified (and remained so until courts “recognized” their constitutional status in recent years)? If SSM is protected because “it doesn’t hurt anyone,” what else is protected? Polygamy? Incest? History and tradition are important to originalists. Ignoring them while pretending to explicate the “original understanding” of the Constitution “looks suspiciously like a fantasy libertarian constitution,” in the words of Ed Whelan.

          • gabe says

            Mark:

            But MY question was:

            What if, over time, the People’s perceptions changed. what then?
            Would not SDP be a proper underpinning for these rights now recognized by the People.

            Tradition is important – BUT traditions change as does the Common Law – that is inescapable even if I don’t much care for the change.

            So again, my question; What if the People support this? who shall decide?

          • Devin Watkins says

            As I said, the common law did make the distinction between pre-quickening and post-quickening in regards to abortion (And allowed abortion prior to quickening). Can you point to a single anti-abortion law from the time of conception at the founding?

            As to gay marriage under the Due Process Clause I said they have the right to go to the church of their choice (that will accept them) and get married in a ceremony, not that the ceremony would be recognized by the government as marriage.

            SSM Does not have to be accepted as valid under the Due Process Clause by the state (nor Polygamy or any other such thing). No marriage is required to be recognized by the state, merely the private religious acts in a private church have to be allowed (and not prohibited by law) under the Due Process Clause.

  3. Tom Rath says

    ” There is nothing in a state law that prohibits recognition of a marriage by that state’s government that could possibility prohibit any act by an individual. Two gay individuals could get married in any church that would accept them even prior to Obergefell. Prohibiting that would be a problem under the Fourteenth Amendment Due Process Clause.”

    It should be noted that North Carolina’s pre-Obergefell “Amendment 1″ actually made it a crime (misdemeanor) for a member of the clergy to sanctify a marriage for which the State had not issued a license (aimed, obviously, at same-sex marriages).

    • Devin Watkins says

      I thought the text of NC Amendment 1 was: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.” That doesn’t seem to me to be creating a crime. If it did create such a crime, that would be a violation of the Due Process Clause (although I am not aware of such a law).

      • Devin Watkins says

        Although, they could argue they did not legally marry the couple as it only criminalizes someone “who marries any couple” and the state constitutional amendment would define what the minister did as not marriage (as legally “Marriage between one man and one woman”). But yes, there would probably be an disagreement about that, and the interpretation that prohibits private marriages that the government doesn’t like would have Due Process problems.

  4. Nancy D. says

    “Catholic Church Clear on When Human Life Begins
    Most Rev. Glen John Provost, D.D.
    Bishop of Lake Charles, Louisiana

    A serious responsibility of a bishop is to insure the purity of teaching in areas of faith and morals (cf. I Timothy 4:16). These teachings must be in conformity with the universal and historic teachings found in Sacred Scripture and Sacred Tradition and defined by the teaching office of the Catholic Church. The beauty of Catholicism rests in part on its ability to be clear.

    Recently there has been high-profile press given to arguments concerning when human life begins. I am concerned about clarity and any misrepresentation of consistent Catholic teaching. My remarks are made in response to numerous questions posed to me by good Catholics in our own Diocese of Lake Charles who are confused by glib citations of patristic authorities, such as St. Augustine, that life begins at some other time than conception.

    In response, I would say:

    1. St. Augustine, one of our most revered Fathers, lived and wrote almost 1,500 years ago; he did not see the world around him with a scientific perspective as we know it today; as with early writers of this and later periods, his concern was the nature of the immortal soul and the human being; he approached this question primarily from the perspective of theology and philosophy.

    2. To answer a question such as when does life begin, science gives us a quite adequate answer; according to one prominent embryology text, The Developing Human: Clinically Oriented Embryology, by Keith L. Moore and T.V.N. Persuad (7th Edition; Publ. Saunders, p. 16), ‘‘Human development begins at fertilization when a male gamete or sperm (spermatozoon) unites with a female gamete or oocyte (ovum) to produce a single cell, a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual’’; if he were alive today, St. Augustine would agree, because St. Augustine believed that there was no ‘‘disjunction’’ in what was known by faith and reason (cf. Catholic Encyclopedia, 1981 ed., vol. 5, p. 808, ‘‘St. Augustine’’ on ‘‘Faith and Reason’’); life begins at conception; no doubt St. Augustine would have marveled at a uterine ultrasound and what it reveals about a human in the womb;

    3. The teaching that life in the womb is sacred has been consistently taught by the Church from the beginning and is reflected in the opposition of the Church for twenty centuries to abortion; please consult the oldest catechism instruction of the Church, outside the Sacred Scriptures, called the Didache or The Teaching of the Twelve Apostles from the First Century A.D.; it reads as follows: ‘‘Do not kill a fetus by abortion, or commit infanticide’’ (Didache, 2:2); also, noted patristic scholars are in agreement that St. Augustine probably knew the Didache and may have used it as a source in writing his own First Catechetical Instruction.

    4. To say in some way that the Fathers and Doctors of the Church in centuries past taught otherwise than the Church’s consistent teaching on the sacredness of life in the womb or that they were not sure when life began is misleading and erroneous; for this reason, the official Catechism of the Catholic Church states: ‘‘Human life must be respected and protected absolutely from the moment of conception…. Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable’’ (Catechism of the Catholic Church, #2270-2271).”

    That being said, and with the understanding that from the moment of conception, every son or daughter of a human person, moves, grows, and responds to it’s environment, and is thus alive before that moment known as “quickenening”, it is important to note that speciation occurs at the moment of conception, thus a human person can only conceive a human person, who is not, in essence, an object of sexual desire/inclination/orientation, but a beloved son or daughter, worthy of being treated with Dignity and respect in private as well as in public.

    “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment uses the same language as applied to the states, and therefore applies the meaning of the Fifth Amendment against the states.”

    True, because being, in essence, a beloved son or daughter, does not depend on location, including when a beloved son or daughter is residing inside or outside of their mother’s womb.

    Only a man and woman, can have both the ability and desire to exist in relationship as husband and wife, and thus be legally married to each other. Marriage cannot in essence be and not be, existing in relationship as husband and wife simultaneously.

    • Devin Watkins says

      I agree, as I stated, that life beings at conseption (as the scinece that you talk about demonstrates), so I agree with points #1 and #2. But the question is when did the Founders believe life began (not what do I believe) to interpret the word life as an originalist.

      But lets get to the history of the Church’s teaching. While it is true (although some scholars dispute this, I accept what you are saying as true), that the Church has consistently considered pre-quickening abortion to be a sin, that doesn’t mean the Church believed it to be murder. It considered the pre-quickening abortions to be a the termination of a “potential life” while after quickening the baby was considered to have a soul and was considered much more serious by the Church. I do not claim that pre-quickening abortions were not considered a sin by the Church, merely not murder as the Church did not consider them to have a soul yet.

      What the Catholic Church thought directly doesn’t matter, it is what the Founders believed that matters (and most of them were not Catholics). I talk about the history of the Catholic Church merely because it helps understand the environment prior to the protestant reformation (and most of the Founders were protestants), and because this idea was incorporated into English common law (which all the Founders accepted). While the Church held that pre-quickening abortion was still a sin (although not murder), the English common law took that distinction by the Church and weakened it slightly in the civil law. Prior to quickening, because the unborn baby was not considered alive, the common law did not prohibit pre-quickening abortions. Post-quickening, it still wasn’t considered murder, but was a lesser crime because the baby was now considered alive.

      • gabe says

        Devin:

        A personal note, if I may.

        I definitely appreciate your ability in this instance to separate your own personal beliefs from the legal and historical issues at hand. It is, to my mind, a sign of a basic decency and humility wedded to an open and ideologically uncorrupted mind. Now if only we can instill this in others in the legal profession.

        In sum, I suspect that I would trust YOU AS AN *ENGAGED* JURIST.

        If you are ever up for a Judgeship, count me in!

        take care
        gabe

        Oh and GO CUBBIES!!!!!!!!!!!

      • Paul Binotto says

        OK, I am going to take a stab at this:

        1) “the question is when did the Founders believe life began (not what do I believe) to interpret the word life as an originalist” :

        There are no new truths, every truth that existed in the 18th Century existed at the creation of the world, before it, and today, and tomorrow. It is only the lens through which we see truth that changes and gets better, or not, with time.

        It does not matter that for the Framers of the Constitution, or the Church, looking through the lens available to them, that the beginning of human life (in the womb) only came into focus at the “quickening”. Rather, it is the moral principle/understanding they held/formed which should carry the weight when measuring the actions of their minds against the actions of the pen, as it laid down the words of the Constitution. It was with the capacity of a well-formed intellect and conscience, that they were able to discern that all human life (discerned to them by quickening) is sacred and deserving of protection, even in the womb. Do we doubt that if our current lens, (embryology) were available to the framers, that they would not embrace it?

        While the majority of Framers were not Catholic, they were Christian, and Christian belief almost universally teaches us that all truths, the Truth, will come fully and completely into focus when we enter the Kingdom, so it cannot be said that the framers did not anticipate, or that they would be especially surprised (but certainly amazed), that on the continuum of time (Christian understanding of the path of history is linear and forward, not circular), the lens for viewing truth would become ever-more refined and more focused, focusable. But, that the moral truth revealed would not change, even though it may come into better focus..

        For the purposes of an orginalist interpretation of the word, “life”, one need not know the “when” but the “what” the framers understood human life to be – sacred and created in the image and likeness of God and worthy of protection and rights.

        In short, its not “when” they saw it, (at the quickening), but what they saw (human life, in the womb deserves protection), that determines the true inner-workings of their minds and their understanding when they laid down, (firstly the Declaration of Independence and later), the Constitution.

        And, therefore, life at conception, is a consistent with an originalist interpretation of the Constitution. But, presuming that the matter does require the “when” – even then, under this approach, the Constitution does provide protection from abortion to a large portion of humans in the womb.

        2) “Post-quickening, it still wasn’t considered murder, but was a lesser crime because the baby was now considered alive.” :

        Of course, “Murder” is primarily a function/description of intent of the perpetrator, and is not a reflection on, or assessment of, the value or state (in the womb) of the human life being taken, or that life’s right to protection.

        • gabe says

          Paul:

          “For the purposes of an orginalist interpretation of the word, “life”, one need not know the “when” but the “what” the framers understood human life to be – sacred and created in the image and likeness of God and worthy of protection and rights.”

          Absotively wonderful! this belies all the *clever* assertions / claims of the knowledge class. Its strength is in its simplicity and clarity of observation.

          How about a little “substantive DUE (caps intended) process for an unborn child.
          After all, some amongst us are currently arguing that lower primates are entitled to them (shoot, lost the link).

          • Paul Binotto says

            Thanks, Mr. Gabe, coming from you, this means a great deal to me, and I appreciate your kind words very much!

            Too bad you lost your link. I totally agree, a little is DUE, over-DUE.

            “After all, some amongst us are currently arguing that lower primates are entitled to them.”

            I like to quip, facetiously of course, the fastest and surest way to end abortion would be to announce in the media that scientists have discovered that baby humans are actually puppy dogs that take nine months to evolve into a human child.

            Best,
            Paul

          • gabe says

            or more precisely: baby fur seals!

            OH! AND GO CUBBIES ( Let’s undoe the Curse of the Goat – or is that a century of Democrat Party rule)?

          • Paul Binotto says

            Oh, that’s right, baby fury seals! And – Go Cubbies! 1908 was a presidential election year, too, electing Republican William Howard Taft…Hmmm, shall we hold out hope then?

      • says

        Devin,
        You continually return to elected abortion, 0.18 per live birth, a minor practice, Yet you ignore natural abortion, about 1.13 per live birth. And that excludes conceptions that did not implant on the womb. Regardless of opinion, I assert that The Facts have standing in due process. Let’s consider a fictional expression of my point.
        Setting the scenario, a woman is ovulating, and you are a court appointed advocate for her viable ova. I am the court-appointed woman’s advocate. As you state, you are Catholic and believe in right-to-life at conception but discuss quickening. I trust and am committed to the-objective-truth or The Facts—no input from Phil Beaver. Phil Beaver admits to himself and publicly that he does not know The Facts that no-one knows.

        Scene 1: the ovum exits the ovary and is fertilized as a single cell or zygote. By day two, cell cleavage began and continues through day four to the morula with eight cells. By day seven, cleavage has brought the embryo to the blastocyst stage, and he or she must now implant on mom’s uterus. You watch in horror as implantation into the womb does not happen. You scream to the mom’s advocate (me), “Catch that pin-head sized issue from mom’s body.”
        I respond, “I have no idea what to do if I cooperate with your demand.”
        You back off, but say, “OK, but I want to find a way to save blastocysts that pass out of mom’s body.”
        I respond, “This was a natural abortion—perhaps a biological correction of a physics error. There are higher human needs than saving blastocysts, and we have limited resources to dedicate to your wish. We could not warrant medical implantation of recovered blastociysts. I cannot help you.”
        You attest. “Alright, then, we Catholics will solve this problem. Life begins at conception!”

        Scene 2: In the nineteenth week, mom has had severe pain and vaginal bleeding, but after a discharge, the symptoms stop. On examination, the doctor tells her she had a complete natural abortion.
        Upon notification, you demand that something be done to stop harm to fetuses by moms.
        I respond, “I have no idea how to anticipate natural abortion or what to do when it is progressing.”
        You attest. “Alright, then, we Catholics will solve this problem. Life begins at quickening!”

        Scene 3: The church has found a way to recover blastocysts and surgically attach them to mom’s womb. However, most of the embryos naturally abort early in the first trimester. You now recommend research to determine why.
        My response is much like that in Scene 2.
        You attest. “Alright, then, we Catholics will solve this problem. Human civicallity begins when we take charge!”
        In each of these scenes, I advocate for attention to The Facts and beg that they be given due process. However, you insist on imposing religious opinion that is fungible—can gravitate to conception, to implantation, to quickening, to any idea that cannot be proven except by the faith you specify.
        IMO, the misuse of due process to focus on opinion about opinion, ever ignoring The Facts begs woe. And the woe invited by the dominant opinion is imposed on all people. The traditional excuse is the 300-year old nature vs nature’s god debate, which promotes to this day unbelievable human institutions such as slavery. However, in light of the exponential discoveries that humankind has achieved, practicing ignore-ance may be an act of propriety without prudence.
        The practice of ignoring The Facts is not fun for the practioner in 2016, because the record remains in cyberspace. This was not true 300-years ago. Faith-based ignore-ance seemed indefinitely private.

        Happy thanksgiving.

  5. says

    First, the procedural-substantive distinction was developed by judges, so any “original understanding” would be that of the judges.

    My distinction is that procedural is about what kind of due process, and substantive about how much of it. Thus, “speedy trial” is procedural, and “how long” is substantive. It is procedural to have a jury, but substantive that the jury have twelve members or that their vote be unanimous.

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