September 27, 2020
by Steve Stofka
Justice Ginsburg’s passing helps us focus on a principle that she fought for during her long career – equal rights. The right to life and liberty are stated plainly in the Declaration of Independence but they were not inserted in the Constitution. The Declaration is a statement of intent; the Constitution is the binding law of the land. Why were the words left out?
Within societies there is some person or governing body that confers property rights. Those rights can be temporary – the access to the Nile River granted by the Pharaoh. They can be permanent – the grant of an entire country by a Spanish king. Property rights are a foundational issue in our daily lives.
Our country was founded on the principle that some human beings were property and one human being could be granted the property right to another human being. Our Civil War was fought after the Supreme Court affirmed the property rights of slave holders in the Federal territories recently won in the war with Mexico. This was the court’s infamous 1857 Dred Scott decision.
A governing body that grants property rights can take them away. Indian tribes learned that treaties are not contracts in white man law. For most of the 19th century, treaties were convenient shams – pretenses of principle. Whenever white people wanted gold, silver or grazing land, a treaty was “negotiable.”
Doesn’t the 5th Amendment give us a right to life and liberty? It states that no one should be “deprived of life, liberty or property without due process of law.” The 14th Amendment, Section 1 repeats that language, but it doesn’t grant any of us a right to those things. It says that if granted a right to those, the government should not take them away without a formal process. The Amendment permits the government to make laws that deprive us of rights.
Compare the language of the 5th Amendment with that of the 1st Amendment, which doesn’t allow the state to make any law abridging free speech.
In the 1972 Roe v. Wade case, the Supreme Court acknowledged that the state of Texas had an “interest” in protecting the “potentiality of human life,” but that a woman had a “right to privacy” inherent in the 14th Amendment (Oyez, n.d.). Justice Ginsburg faulted the court for its weak rationale. The all male Supreme could not reason that women have an equal protection under the law. No state interferes in the private relationship between a doctor and a male patient; therefore, they cannot do it with female patients. That autonomy is a “privilege” which no state may abridge, according to Section 1 of the 14th Amendment. Because of its flawed privacy rationale, a minority of people, mostly Christian groups, have chipped away at the decision.
Why did our country’s founders not specifically recognize a person’s property right to their own body? First, that would have negated the rights of slaveholders. Secondly, the state needs to take control of the bodies of men during times of war. To rephrase General Patton, it needs puppets it can throw into the cannon fire.
Just as men are fighting machines for the state in times of war, women are breeding machines for the state during their fertile years. In the 18th century when the Constitution was written, that was the case. It was assumed that more people maintained the vitality of society and the state. Ten years after the Constitution was written, economist Thomas Malthus’ raised a question that shocked Britain and caused many to shun him. What if more people were bad for society, and destabilizing to the state?
The diminutive Justice Ginsburg broke many doors slammed in her face by the legal profession. Throughout her career, she fought for the most fundamental right that any person can have – to stand equally under the law, be they man or woman. A tempered character, she was not one who rests in peace. She was a determined fighter who will rest only when this country finally acknowledges that most basic right of any human being.
Photo by Tingey Injury Law Firm on Unsplash
Oyez. (n.d.). Roe v. Wade. Retrieved September 25, 2020, from https://www.oyez.org/cases/1971/70-18