By Mark David Blum, Esq.
In 1776, Thomas Jefferson put his quill to hemp and wrote one of the most famous lines in all of American history. “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.” Eleven years later, in 1787, our nation’s Founders forever changed Jefferson’s words. The “unalienable right to life” was no longer. “Life” became a conditional right, one that can be taken away from you with “due process”; whatever that means.
According to any dictionary, the word “unalienable” means being something incapable of being repudiated or transferred to another. It cannot be taken from you and you cannot give it away. A right declared to be unalienable (inalienable) is a right inherent to you as a human being, a gift from God, that goes with you forever.
In my presentations to schools and discussions with people about the Constitution, I always raise the issue of a ‘right to life’. Frankly, there is no such thing. The Declaration of Independence is not the law of the land. Those who strictly read the Constitution and argue that unless it is spelled out in the original text, it doesn’t exist as a right, would choke on having to conclude that the Constitution does not grant an unalienable right to life. Much the same argument as is made today about privacy not being a right in the Constitution and therefore it doesn’t exist, so too must these so-called strict constructionists swallow their own words and conclude that Americans do not have a right to life. Remember this next time you are confronted by anti choice people who call themselves ‘right to life’ supporters. Remind them there is no such thing.
The issue of a right to life is not addressed until the Fifth Amendment of the Constitution wherein it says that government can take your life provided they use due process; whatever that means. One thing is for sure: The question of a right to life is that life is conditional meaning you can have your life so long as the government says you can. If they want to take it from you, then government has that power. It is no longer unalienable.
“Due process” is one of the two terms used by the authors of the Constitution wherein they shifted from legal absolutes to ambiguous subjective terminology. The other is found in the Fourth Amendment which uses the term “unreasonable” regarding searches and seizures. In both instances, the words mean what the reader says they mean. There is no hard and fast definition that can be applied. The process due to a person is that which a judge says is proper based on that judge’s own interpretation and analysis of the situation. Once the process used has been declared “due”, then government is free to act. The best example of this are the immortal words of United States Supreme Court Justice Antonin Scalia who said, “mere factual innocence is no reason not to carry out a death sentence properly reached.” In so saying, the learned Justice is making clear that life is not only not unalienable, but that so long as the process used is proper, government can take your life for a crime that you did not commit.
In 1993, in Herrera v. Collins, 506 U.S. 390, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. In that case, the Court postulated that the Constitution could possibly forbid the execution of an innocent person. Query however where in the Constitution such a prohibition be found. The Fourteenth Amendment and its Due Process clause are no help.
The issue of executing the innocent is even more prevalent today. In the post 9/11 world, Congress has enacted the Anti-Terrorism and Effective Death Penalty Act which forbids the federal courts from involving themselves or preventing the execution of someone unless doing so violates clearly established federal law. Since mere factual innocence is no defense to a sentence of death properly reached, the federal courts are without jurisdiction to intervene in a State that seeks to execute an innocent person. A Federal right for an innocent person to not be executed is not found in the Constitution and thus federal courts have no authority to intervene in a State’s actions.
“Life” as we know it is seen as precious and of great importance. Our nation needs to come to a consensus and conclusion that life is an absolute. Each and every one of us has a right to live. We should have a right to draw a breath, for our heart to beat, and to consume food and nutrients. We should have a right to live our lives and nobody; not a person nor the government should have the option to take it away. While unalienable would include my not being able to commit suicide, good luck in prosecuting me should I commit that crime. We can however return to our roots and find that life is unalienable and cannot be take from us. Yes, such a conclusion would impact the death penalty, abortion, and assisted suicide. (Actually not so much with abortion because the Fourteenth Amendment only protects those persons “born or naturalized” and a fetus is neither). Which worldview however, is more consistent with our fundamental belief system and is more true to our nation’s founding? I vote life.