Brendan T. Beery, Sarah Roberge & Jason Terry
Brendan T. Beery is an attorney (Michigan P59464) and professor at Western Michigan University Cooley Law School in Lansing, Michigan. Sarah Roberge and Jason Terry are J.D. candidates at WMU Cooley Law School. Special thanks to David Gespass for leading the effort to coordinate this work and for his thoughtful review and edits.
This template for a legal argument in favor of women seeking to protect the right to control their bodies is adapted largely from an article in the National Lawyers Guild Review: Brendan T. Beery, How to Argue Liberty Cases in a Post-Kennedy World: It’s Not about Individual Rights, But State Power and the Social Compact, 75 Nat’l Law. Guild Rev. 1 (2018). Both the author and National Lawyers Guild Review grant permission to use this work product in any legal brief advocating the right of a woman to terminate a pregnancy. A general citation to the article referenced above in acknowledgements, citations, or a table of authorities will suffice as attribution for purposes of using any or all of the material that follows.
Summary of Argument
Individual rights are not discrete and narrowly drawn licenses gifted by the state to the citizen; they are limits on the power of government to meddle where it has no business. Questions about individual rights are questions about jurisdiction—and whether, as to the certain components of citizen life, it is the citizen or the state who has jurisdiction. The doctrine of substantive due process, although a useful means of effectuating the Ninth Amendment’s promise that the people retain unenumerated rights (power and dominion over their own lives as citizens), has grown too complicated with its inconsistent approaches to issue framing, its various factors and tiers, and its misguided focus on discrete personal activities rather than the limited jurisdiction of the state.
Understanding the textual divide between the jurisdictions of the government and the jurisdiction of the people requires understanding John Locke’s theories of government. The state has only the power ceded to it by individual people, none of whom may have given to the government more power than he or she had in himself or herself. People cede only such power as they must to ensure their peaceful enjoyment of their property and their citizen lives; thus, the government is limited in its jurisdiction to those matters that require common decision making or a common enterprise for the public good. People retain, as any rational beings would, a vast swath of jurisdiction over their own lives and affairs. An honest and informed understanding of the philosophical underpinnings of our Constitution yields an inescapable conclusion: as to any component of citizen life that realizes a person’s own destiny and affairs rather than the course of society or the state, a person retains jurisdiction of her own body, her own mind, her own conscience, her own morality and dogmas, and her own decisions. A woman’s decision whether to terminate a pregnancy during pre-viability cannot reasonably be supposed to be a matter over which any rational person would have ceded jurisdiction to the state, for it is a matter of a person’s own course in life. The question is not whether a woman has license from the state to make such a decision. The question is whether the state has jurisdiction of a woman’s uterus, her body, and her decision whether to beget a child.
I . Individual rights are about jurisdiction.
Constitutionally speaking, abortion is a question of jurisdiction. The Tenth Amendment lays out three spheres of jurisdiction, not two. It provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. And “the people” cannot be the same as “the States,” lest there would have been no need for the disjunctive conjunction or between the two. Id. “The people,” therefore, must mean something more than merely a collective body politic that joins together to make laws for the common good, since that is the definition of a state. See State of Alaska v. U.S. Dept. of Transp., 868 F.2d 441, 444 (1989) (explaining, “It cannot be gainsaid that the ordinary meaning of ‘body politic’ encompasses States.”) Since the issue of individual rights is entirely a matter of who has jurisdiction over certain components of citizen life and behavior, and since the Constitution provides that much jurisdiction over citizen life is retained by the people (belonging, therefore, neither to the United States nor to any state), it is rather an essential charge that we clarify what power is reserved exclusively to the people.
There are matters, mostly enumerated in Article I § 8, over which the United States has jurisdiction. There are other matters involving health, safety, and the public welfare over which states have jurisdiction. See Consolidated Rail Corp. v. City of Bayonne, 724 F.Supp. 320, 323 (1989). And there are matters over which power is reserved to the people, and not ceded to any government or lawmaker. See U.S. Const., amend. X.
Despite the elegant simplicity of this proposition, courts have struggled with the issue of unenumerated individual rights. Over the decades since Griswold v. Connecticut, 381 U.S. 479 (1965), courts have settled on a doctrine called “substantive due process” to wade through discrete “fundamental” liberty interests that carry a special rank and, when they are substantially burdened by the government, warrant the application of rigorous scrutiny by courts. See Moore v. City of East Cleveland, 431 U.S. 494 (1977) (recognizing the right of family members to cohabitate); Loving v. Virginia, 388 U.S. 1 (1967) (stating that traditional marriage is a fundamental constitutional right); Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding that adults have a right to use contraceptives); Troxell v. Granville, 530 U.S. 57 (2000) (recognizing the right of a competent parent to direct the care, custody, and control of his or her child or children).
The idea behind substantive due process is that the constitutional guarantee of due process embodies two promises, not one: first, the procedural promise that one’s person or property will not be plundered by the government without some kind of notice and the chance to plead one’s case before an impartial arbiter (see generally, Matthews v. Eldridge, 424 U.S. 319 (1976)); and second, that there are certain personal freedoms so fundamental to life in a free country that the government may generally not (substantively) meddle with those freedoms at all. See U.S. v. Salerno, 481 U.S. 739, 746 (1987). The doctrine of substantive due process breathes life into the Ninth Amendment’s promise that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const., amend. IX. Since both of the Constitution’s due-process provisions use the word liberty (U.S. Cont., amend. V; U.S. Const., amend. XIV), courts have regarded those clauses as the textual homes for the unenumerated (retained) rights whose existence was memorialized in the Ninth Amendment.
Under substantive due process principles, courts must undertake elaborate analyses. First, a court must define discrete liberty interests at an unspecified level of generality. See Michael H. v. Gerald D., 491 U.S. 110, 127 n 6 (1989) (discussing the different levels of generality that might be used in defining discrete individual rights). A court must then discern whether such an interest is fundamental or merely low-level by asking whether the right is “deeply rooted in our Nation’s history and tradition” (see Bellotti v. Baird, 443 U.S. 622, 638 (1979)) or “implicit in the concept of ordered liberty” (see Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969); Moore, 431 U.S. at 537; Griswold, 381 U.S. at 500; Roe v. Wade, 410 U.S. 113, 152 (1973)).
A court must then apply these factors under varying and inconsistent interpretive approaches like originalism, textualism, living constitutionalism, and “text and principle.” See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989); David A. Strauss, Constitutional Law Symposium: Debating the Living Constitution: Symposium Article: Do We Have a Living Constitution?, 59 Drake L. Rev. 973 (2011); Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2007). Finally, a court must apply, sometimes rigidly and sometimes loosely, one among various levels of judicial scrutiny. See generally Brendan T. Beery, Rational Basis Loses Its Bite: Justice Kennedy’s Retirement Removes the Most Lethal Quill from LGBT Advocates’ Equal-Protection Quiver, 69 Syracuse L. Rev. 69 (2019).
The analysis need not be this complicated or this controversial. It is not necessary to argue about the moral, psychological, religious, philosophical, or emotional dimensions of such culturally and sociologically loaded issues as contraceptives, sodomy, sexuality, or—as is at issue here—abortion. It is especially unnecessary to argue about these matters as discrete and narrowly defined interests in relation to an individual’s privacy when the issue, constitutionally speaking, is not whether the individual has a constitutionally mandated right to undertake a specific act, but rather whether the United States or any state has jurisdiction over matters of body and mind that do not implicate a collective, public project.
II. An originalist interpretation of the Constitution must reflect an understanding of John Locke’s political philosophy.
Jurists, lawyers, and citizens across the spectrum of political and philosophical viewpoints might at least agree on this: one should be suspicious, in any civilization that styles itself a free society, of the power a government claims for itself. See Jim Talent, Conservatism and the National Defense, National Review (November 11, 2015). And we might also all agree that the original meaning of constitutional text is at least a starting point for analyzing constitutional questions. See Antonin Scalia, Common-Law Courts in Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in AMatter ofInterpretation: Federal Courts and the Law 3, 37-38 (Amy Gutman ed., 1997) (explaining originalists should look for “the original meaning of the text, not what original draftsmen intended”).
On both counts (the common concern about the proper place of government in an ostensibly free society and the concern with the original understanding of constitutional text), an appeal to John Locke is in order. John Locke was a leading political thinker of his time, and there is no doubt as a historical matter that his philosophy undergirds some of the words in the nation’s basic charter. See generally Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J. L. & Liberty 1 (2010). So there can also be no doubt that some words of the Constitution were understood by any lettered reader at the time of the Constitution’s inception to mean what John Locke meant by them. This is especially so of the word “retained” in the Ninth Amendment and the word “reserved” in the Tenth. See Id., at 11-12.
A. The government derives its power from the people, so it only has that power which any individual person may have ceded to it.
Controversial social issues, including the issue of abortion, usually involve state legislative power; it is generally state legislatures that have trespassed into the personal lives of citizens, enjoining the reign of the autonomous soul over its own self. See An Overview of Abortion Laws, Guttmacher Institute (updated June 1, 2018), available at https://www.guttmacher.org/ state-policy/explore/overview-abortion-laws. State legislatures, when left unbounded by any supervising check, will intrude into the most private and intimate components of the lives of their subjects. Jurisdiction over matters such as sex, marriage, family, contraception, and the choice whether to abort a pregnancy drifts from the individual to the master state. So Locke’s writing on the nature of a free society is most helpful where it relates to legislative power. In his Second Treatise on Government, Locke wrote,
The great end of men’s entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law of all commonwealths is the establishing of the legislative power . . . [for] the preservation of the society and (as far as will consist with the public good) of every person in it. John Locke, Second Treatise on Government § 134.
One sees here Locke’s emphasis on peace and safety. This emphasis runs through all of Locke’s thinking and teachings: the individual, in a state of nature, is autonomous and sovereign over himself or herself,1 and an individual sovereign forms a government over himself or herself only to secure peace and prosperity—not to cede dominion over matters that require no collective decision-making or projects that require no communal cooperation. In other words, governments exist, as Locke said, for the public good, not the individual’s subjugation.
Locke also wrote,
Though the legislative [power], whether placed in one or more, whether it be always in being or only by intervals, though it be the supreme power in every commonwealth, yet, first, it is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of the people. For it being but the joint power of every member of the society given up to that person or assembly which is legislator, it can be no more than those persons had in a state of Nature before they entered into society, and gave it up to the community. For nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having, in the state of Nature, no arbitrary power over the life, liberty, or possession of another, but only so much as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power in the utmost bounds of it is limited to the public good of the society. Id. at § 135 (emphasis added).
The Lockean notion that the government possesses only that power which a singular person has to give undercuts the idea that “the people” is simply some collective body politic. “The people” are, rather, a collection of discrete individuals, each of whom has jurisdiction over his or her own affairs.
So the state may not possess power that must necessarily have been ceded to it by its subjects, the people, if that power did not belong to any person to begin with. In a state of nature, a person might have the right to defend herself, secure her property, and enjoy her life peacefully and without nuisance or bother put upon her by others, but she has no jurisdiction of neighbors’ property or peaceful enjoyment of their own lives and personal affairs. So although a person may cede to the government the authority to secure her property rights and protect her against unwanted intrusions, she cannot have ceded to the government—and neither can any of us have ceded to it—any authority or jurisdiction over the intimate and private lives of fellow citizens.
As Professor Michael W. McConnell noted in his article about John Locke and his influence on our Constitution, “During the Bill of Rights debates, reference was made to the right to wear a hat and to go to bed when one pleases.” McConnell, supra, at 19 (citing 1 Annals of Congress 732 (Joseph Gales ed., 1834) (1789)). The framers of the Bill of Rights understood that a sphere of life exists about which there is no public concern implicated—with regard to which no government, no legislature, has any business. In other words, they understood John Locke.
B. The people cede only that power that they must to live in an ordered society and secure peace and prosperity; they do not cede power over their decisions as free citizens.
People enter into the social compact (submit to the authority of government) not so that it may limit their freedom, but so that it might help them to preserve it. Locke explained,
If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name—property. Locke, supra, at § 123.
Thus, people do not, merely by existing in society and availing themselves of its protections, thereby expose themselves to arbitrary intrusions by the government into areas such as the choice whether to procreate. Rather, people join together under one government, Locke said, “only with an intention in every one the better to preserve himself, his liberty and property (for no rational creature can be supposed to change his condition with an intention to be worse) . . . .” Id. at § 131 (emphases added). That is why “the power of the society or legislative constituted by them can never be supposed to extend farther than the common good . . . .” Id. (emphasis added).
C. The state may only regulate as to matters of public concern, not matters involving the choices of citizens in a free society.
It follows that the state may only regulate for the public good: matters that require collective rather than individual decision-making, or matters that require a collective rather than individual effort. As to collective decision-making, no person should, for example, be a judge in his or her own case against another in matters involving contracts or property or civil wrongs (this idea is widely attributed to Sir Edward Coke. See D.E.C. Yale, Judex in Propria Causa: An Historical Excursus, 33 Cambridge L.J. 80 (1974)); society must have common rules for resolving such disputes, and there must be neutral magistrates to resolve them—not in the name of the magistrates, but in the name of all society. As to matters that require a collective undertaking, it is not reasonable to expect individuals to install their own utilities or fight a common enemy individually. We join together to achieve objectives that cannot be achieved without our joining together.
If governments had the authority to do more than this—more than to require people’s submission to rules that exist to preserve property and liberty; and require participation in common projects like public highways and the provision of public services and benefits—then the people would have quitted their dominion over their own affairs with, as Locke put it, “an intention to [make their own condition] worse.” Locke, supra, at § 121. No rational creature would enter into such a compact.
This thinking marked much of the dialogue in the United States around the adoption of the Constitution, and especially the Bill of Rights. A famous Constitution-era commentator who wrote as “Brutus” put it this way:
The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting [sic] the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with. McConnell, supra, at 11-12 (quoting Brutus, Essay of Brutus II(1787), reprinted in 2 The Complete Anti-Federalist 372–77 (Herbert J. Storing ed., 1981))(emphasis added).
III. There are rights not enumerated in the Constitution that the people retain and over which the government has no jurisdiction.
Under the axiom expressio unius est exclusio alterius, lists in legal documents are generally interpreted as being exhaustive. See Id. at 10. Some of the framers of the Constitution feared that creating a list of rights bore serious risks. James Madison even warned that creating such a list would be perilous since oppressive governments in the future might point to such a list in an attempt to extinguish any right not listed. See Id. at 14.
With this in mind, the drafters of the Bill of Rights (the first Congress) included the Ninth Amendment, ostensibly to foreclose this mischief: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const., amend. IX. Notice the word “retained.” This reflects the thinking of John Locke: the government only has the power ceded to it by the people; all the remainder— a huge chunk of jurisdiction over the lives and affairs of the people—must be presumed to have been retained, for there would have been no reason for any rational person to give up more than might be necessary for the public good.
The Ninth Amendment explicitly neuters the expresssio unius rule and instructs that it not be applied in interpreting the Bill of Rights. There is a sphere of life where no government may tread, and a right need not be enumerated in the Constitution for the government to lack any jurisdiction over it. Indeed, it would be pointless to list every component of a citizen’s daily life where the government has no jurisdiction; one need not indulge lofty musings about which “rights” are “deeply rooted in our nation’s history and traditions” or “implicit in the concept of ordered liberty” when it is clear enough that no government at any level may decide what side of the bed one sleeps on or whether one snuggles with a cat at night or whether one takes one’s coffee black.
Then there is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. First of all, reserved is much like the word retained: it reflects the philosophy of John Locke. But power is not merely reserved to states. As would be expected in an amendment that has Locke running through it, power is also—and more importantly—reserved to the people. So states occupy a sort of nether-region where Congress has no power and the people have ceded theirs—for, and only for, the public good. As noted above, courts call this the police power, which properly has been defined as a general authority to regulate with regard to the health, safety, and general welfare of the populace—in other words, the public good. See Police Powers, Legal InformationInstitute, available at https://www.law.cornell.edu/wex/ police_powers.
Proponents of governmental control over all components of citizen life sometimes place the word morals into that equation: police power, they say, is the authority of the state over the health, safety, morals, and general welfare of its people. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 392 (1926). The problem here, of course, is that if a state has jurisdiction over a person’s moral choices, then the or part of the Tenth Amendment—the part about power reserved to the people—is a dead letter, because there is nothing left to the individual citizen after the state has greedily consumed every bit of the residual jurisdiction not claimed by Congress. If a state may decide whether a woman must make religious and moral choices in accord with majoritarian dogmas instead of her own, for example, then there is nothing that a state may not decide for a citizen, and there is no power at all reserved to the people.
If the Tenth Amendment is to mean what it clearly says about the people and their reserved power, then, again, state legislative power may only extend to the common good. And the drafters of the Constitution seemed singularly concerned that this form of government would indeed exist in the states; Article IV of the Constitution provides, “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” U.S. Const., art. IV § 4. Republican, in this context, means representative (see Parker v. Merlino, 493 F.Supp. 381, 388 (D.N.J. 1980)), which in turn means that every state must have a structure of government that reflects the Lockean compact: the people cede whatever power they must to the state, which may then regulate for—and only for—the public good.
The text of the Constitution, as it was understood when it was drafted and as it should still be understood today, does not invite or require thorny fights about which parts of citizen life implicate such profound concerns that they warrant some kind of special rank. As to personal privacy and moral autonomy, the Constitution is concerned only with whether power is reserved to the people, which is to say that it is not the business of any other person and is therefore necessarily not the business of any government. How a woman chooses to manage her own pregnancy is not the business of any other person, and it is therefore not the business of any government.
A. The Constitution’s audience is the government, whose power it limits—not the people, whose rights exist independently of the government.
Rights, like those enumerated in the first eight amendments to the U.S. Constitution, are not about the individual people whom they protect. The Constitution is not addressed to citizens as individuals and seems agnostic as to whether they exercise any of those rights—like speech or religious exercise. See U.S. Const. amend. I. The audience for the Constitution is the government; the Constitution creates the system of government, empowers it, and also limits its reach and jurisdiction. That is where rights come in: a right is not a license created by the Constitution to encourage certain behavior by citizens; it is a limit on the power of the government. McConnell, supra, at 12.
The First Amendment does not say that a citizen should speak; it says (although not in so many words) that if she has something to say on a matter of public concern (a right citizens had even before the Constitution was drafted), then the government may not stop her. U.S. Const., amend. I. Constitutional rights are not there to be exercised; they are there to restrain governmental intrusions into their exercise (or, in the case of positive rights like the right to a jury trial or the right to counsel, to require the government to interact with its subjects in ways that are not arbitrary and capricious). See U.S. Const., amend. V; U.S. Const., amend. VI.
Consider this question: Does a person have a constitutionally enumerated right to shave in the morning? Under any interpretive model, it is preposterous. The question answers itself, and the answer is no. But the wrong question has been asked. Since the Constitution is not about what the people as individuals may do, but rather what the government may do, the constitutional questions are these: Were governments instituted among men and women to decide whether a person should shave in the morning? Is personal shaving something that the government should be allowed to regulate? Is it something that any government has the authority to regulate? Is it something that requires collective decision-making for the public good? Under any interpretive model, this question, too, answers itself: the answer is no.
B. A person has jurisdiction over her own moral choices— not the government.
Oddly enough, originalists and textualists find little trouble declaring the traditional unitary family and traditional opposite-sex marriage to be fundamental liberty interests even though neither right is enumerated in the Constitution. See Michael H., 491 U.S. 110; Zablocki v. Redhail, 434 U.S. 374 (1978). The same jurists tend to balk when whatever private choice is at issue does not comport with their own personal agendas and beliefs: when a woman wants to abort a pregnancy, for example, or when a gay person wants to enjoy a full and pleasurable sex life. Justice Anthony Kennedy led the way toward ending this personal-preference-based approach to individual rights, declaring (implicitly, at least) that a majoritarian moral objection to certain conduct is not, in and of itself, a legitimate state interest as required even on rational-basis review. See Lawrence v. Texas, 539 U.S. 558 (2003). Justice Kennedy’s opinion in Lawrence invalidating a Texas anti-homosexual-sodomy law might be the closest the Supreme Court has come to honoring the plain meaning of the Constitution’s reservation of jurisdiction over citizen-life to the people rather than the state.
As reproductive choice comes under attack in many states, it may be time for courts to consider a decidedly conservative approach—a narrow take on what parts of citizen life are properly regarded as having been ceded by the people to any supervising civic overlord, be it secular or sectarian. In matters where no one citizen would have jurisdiction over the choices of another citizen, the state has no power to regulate citizen life. In such cases, courts should apply rigid scrutiny, invalidating laws designed to undercut the free will of the individual.
Does a person have a constitutionally enumerated right to wear a hat or decide when to go to bed at night? Of course not. Were those choices nonetheless reserved by the people as outside the reach and competence of the government? Of course. The question is not whether such decisions are important or compelling or foundational, but whether they constitute a public project or require collective decision-making. At the risk of being repetitive (which might be in order), since the Constitution explicitly addresses itself to governments rather than the individual, it is the scope of the government’s jurisdiction that is the issue. The individual should not be asked to explain how it is so that she has jurisdiction over shaving or hat-wearing or bedtime when the government so obviously lacks jurisdiction in those areas. If the government is incompetent to regulate in these areas, areas about which no person could or would have ceded authority to society, then what difference does it make whether the “right” at issue is the right to free thought or the right to go to bed? In either case, it’s a “right” against which the state may not trespass—regarding which a person has the “right to be let alone.” See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (stating that “[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men.”).
It is not for a woman to explain how she has jurisdiction of her own uterus and body and reproductive choices. It is for the state, rather, to explain the remarkable proposition that a woman’s uterus and body and reproductive choices are the province of the state as matters of public concern—as matters that are the business of neighbors and strangers rather than the individual.
IV. The choice to terminate a pregnancy is a personal decision over which no other person has jurisdiction; therefore, it is the woman and not the state who has jurisdiction over such a choice.
Consider an illustration. Smith is talking to her neighbor, Jones. Smith, who has never had children, confides in Jones that she is pregnant, but she is planning to terminate the pregnancy. Smith and her husband decided before getting married not to have children. Jones, who takes great joy in motherhood, is appalled that another woman would consider terminating her pregnancy; it is also strictly against Jones’s deeply held beliefs to terminate a pregnancy, as she believes that life begins at conception.
Obviously, Jones’s beliefs about when life begins and about religion are her business alone. No neighbor could insist that she change her beliefs or live a life inconsistent with her own wishes. But the same is true for Smith. Her beliefs about when life begins and what religious doctrine she follows (including a belief in no religion) are not the business of Jones, even if she disagrees with Smith. These are matters of individual conscience.
When Jones talks to another neighbor, Murphy, she discovers that Murphy, too, is shocked and upset that Smith would terminate her pregnancy. Now that Jones and Murphy both agree that Smith is considering what they consider an immoral choice, do they acquire jurisdiction simply because there are two of them? Obviously not. If neither had power over Smith’s choice to begin with, then they do not acquire that power by joining together. What about when a third neighbor also is put off? And a fourth and fifth, and then a tenth and then a twentieth? If the whole block finds Smith’s plan immoral and distasteful, have intrusive neighbors swelled in number such that now they have jurisdiction over Smith’s pregnancy and her body and her choice? Of course not. If no single one of Smith’s neighbors individually has any power over her personal life, then their joint opprobrium is of no more moment that Jones’s alone, or any combination of neighbors one might conjure.
Those who argue that the neighbors magically acquire jurisdiction over Smith’s body and pregnancy and choice once they number 50 percent plus one of the body politic are left holding an empty sack, and this is Locke’s point: the government only has that power which the people (a collection of persons) may give it, and they may not give what they do not have. It makes no difference that 50 percent plus one of the body politic condemns Smith; there is no power in their legislature to bind her up if no person within the body politic had that power to give the legislature to begin with. It’s a funny thing about zero: no matter how many times you add it to itself, you still get zero. So in a community of 100, even when 51 people decide on the personal choices and destiny they would prefer for Smith, they still have no jurisdiction—zero—to impose their will.
It is a strange proposition indeed that something that is not the business of anyone is nonetheless the business of everyone.
A woman’s decision to terminate her pregnancy is not a public project and does not call for collective decision-making. It is not a matter of public concern. A woman’s choice whether to terminate a pregnancy—and all its attendant philosophical, moral, medical, and emotional implications—is well outside the jurisdiction of the state. As the Supreme Court stated in Roe v. Wade, 410 U.S. 113 at 159 (1973), “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” No government, therefore, has authority over such a private decision, at least in any commonwealth that holds out any pretense of being a society of free citizens.
NOTES
- While women were not considered equal at the time that Locke wrote, his ideas obviously apply equally to women and men today.