|Roy S. Moore
Founder and President Emeritus
Col. John Eidsmoe
Senior Counsel and Resident Scholar
Foundation for Moral Law
One Dexter Avenue
Montgomery, Alabama 36104
Ph: 334.262.1245 • Fax: 334.262.1708
Senator George E. "Chip" Campsen, III 7 March 2014
South Carolina Senate Judiciary Subcommittee
360 Concord St., Suite 201
Charleston, South Carolina 29401
Re: S. 457, South Carolina Personhood Bill
As Senior Counsel and Resident Scholar for the Foundation for Moral Law, and as one who has taught Constitutional Law I & II at various law schools for over twenty years, I have examined South Carolina S.457, believe it to be constitutional, and urge its passage.
James Madison, often called the Father of the Constitution, wrote in Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State." Clearly, Madison believed matters concerning the lives and liberties of the people are reserved to the States.
As S. 457 correctly notes, the Declaration of Independence is part of the organic law of our nation. It is as basic and fundamental as the Constitution itself. One might say the Declaration established the Nation; the Constitution established the Government. The Declaration set forth the fundamental ideals upon which this Nation is founded; the Constitution established a practical mechanism for the realization of those ideals in a society of imperfect people. And the Declaration proclaims that all men are created equal and are endowed by their Creator with certain unalienable rights including life, liberty, and the pursuit of happiness. "All men" should be understood to include "all persons."
The Fifth Amendment to the U.S. Constitution provides that "No person shall ... be deprived of life, liberty, or property, without due process of law... ." The Fourteenth Amendment states that "...nor shall any State deprive any person of life, liberty, or property, without due process of law...." Like the Declaration, the Fifth and Fourteenth Amendments protect "all persons" and list the right to life as the foremost of human rights.
Neither the Declaration nor the Constitution specifically define when personhood begins. The Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), did not address when human life begins, but it did say the term "person" within the Fourteenth Amendment refers to persons already born. I do not believe this precludes the State of South Carolina from defining personhood as beginning at conception, for several reasons:
(1) The Supreme Court in Webster v. Reproductive Services, 492 U.S. 490 (1989), upheld a Missouri statute that, among other things, made a legislative finding of fact that human life begins at conception. States are usually permitted to go even further than the federal Constitution in recognizing human rights.
(2) The Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), declined to totally overrule Roe v. Wade but held that the states could regulate and restrict abortion in ways that the Court probably would have struck down in the decade following Roe v. Wade. In so doing the Court seems to have downgraded the right to abortion from an upper-tier right that can be infringed only with a compelling state interest that cannot be achieved by less drastic means, to a middle tier right that can be restricted by simply demonstrating that the law has a substantial relationship to an important governmental interest. Justice Kennedy's majority opinion in Gonzales v. Carhart, 550 U.S. 124 (2007), upholding a federal prohibition of partial-birth abortion, signals still another significant step in the Court's move away from Roe v. Wade. Even if the Court were unwilling to conclude that a state finding that personhood begins at conception constitutes an upper-tier compelling state interest, the Court may well conclude that a state finding of personhood does constitute a middle tier important governmental interest.
I understand that some South Carolina legislators are concerned about challenging Roe v. Wade because the U.S. Constitution, Article VI Sec. 2, declares the U.S. Constitution to be the "supreme Law of the Land." True, but this means not just part of the Constitution but all of the Constitution. And because Article V declares that amendments when ratified "shall be valid to all Intents and Purposes, as Part of this Constitution," the Tenth Amendment is part of the "supreme Law of the Land." The Tenth Amendment provides that "The powers not delegated to the United Stats by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Wherever the Constitution delegates powers to the federal government, that is the supreme law of the land. But wherever the Constitution reserves powers to the states, that is equally the supreme law of the land. I would argue that the Constitution nowhere delegates to the federal government the power to determine when personhood begins. Therefore, the power to determine when personhood begins is by the Tenth Amendment reserved to the states, and that is the supreme law of the land.
Those who want to preserve the "right" to abort babies will tenuously fight for whatever is left of Roe v. Wade. But those who believe in the right of the unborn child to life need to take the offensive and challenge the Roe analysis, and I believe with the current make-up of the Court there is a strong possibility that they will succeed. S. 457 is well-drafted and a very good place to make this defense. I hope and pray that South Carolina will lead the way by enacting S. 457, and if it is challenged in court the Foundation for Moral Law will be pleased to assist South Carolina in the defense of the law and the defense of the unborn child.
John Eidsmoe, Senior Counsel