Who is person?

Like Richard, I would like to follow up on Rick’s invitation to respond to Professor Foley’s interesting column on “Stem Cells and Constitutional Duty.” I thought it would be useful to reread or review several relevant texts before offering my response. The texts I re-examined are the following: the majority opinion in Roe v. Wade; the majority in Stenberg v. Carhart; and Michael Scaperlanda’s and John Breen’s important and insightful essay Never Get Out’a the Boat: Stenberg v. Carhart and the Future of American Law.

I begin with one area of agreement with Professor Foley: people do have a right under domestic and international law to beget children, or not. But once they do, regardless of the method used to “beget,” their responsibilities and accountabilities arise. I suspect this is where Professor Foley and I would begin to part company. And so, let me offer some principal points of disagreement with her commentary.

I must respectfully disagree with her contention that the President abused his Executive Power and violated his Article II oath to “preserve, protect and defend the Constitution of the

United States

.” First of all, the President followed Article I, Section 7.2 of the Constitution in registering his disagreement (objections) with the stem cell legislation. Under the Constitution, it was for the Congress to override the veto with a super majority, and this the Congress failed to do in spite of its attempt. I cannot see how the President failed in complying with the duties of his oath as she asserts. It may be that Professor Foley disagrees with the President’s objections (this seems a plausible avenue to consider when one reads the rest of her commentary). But her disagreement with his justification for the veto does not make the case for stating that he abused his power and violating his Constitutional oath.

I think Professor Foley and I have very different understandings of what the majority said and did not say in Roe v. Wade. Let me concentrate on those issues that are raised in her commentary. The majority did not define the meaning of “person” in Roe. Therefore, it did not answer the question posed by the State of

Texas

. As a matter of fact, Justice Blackmun avoids answering “the question” when he concludes the relevant discussion in Section IX of the majority opinion by stating: “This conclusion [regarding the majority’s dicta about the 14th Amendment and the nature of personhood], however, does not of itself fully answer the contentions raised by

Texas

, and we pass on to other considerations.” I believe the inability of the Supreme Court in Roe to define personhood is one of the important points made and ably demonstrated by John and Michael’s essay to which I have previously referred. In candor, the Court avoided the issue and hence passed “on to other considerations.” The Court did not define the vital term “person.”

Of course, while we are at it, we need to consider that the Constitution’s original text did minimize or eliminate the personhood of some human beings. Article I, Section 1.3 states that those human beings bound in permanent servitude only counted for three-fifths of a person; native peoples counted not at all. With the passage of time, these provisions limiting or denying personhood were superseded by the 14th Amendment. Since the Court has not addressed the issue in Roe or any other case regarding the personhood of the embryo or fetus, I shall hold further comment on Professor Foley’s remarkable observation.

Professor Foley also develops an interesting argument when she asserts that “parental liberty trumps any interest government might have in protecting pre-viable human embryos.” While the

United States

never ratified the San Jose Convention (American Convention on Human Rights) of 1969, it did sign the instrument. Normally signature implies that the signatory country, even though not a party by ratification or accession, will not do anything to undermine the objectives of the instrument. In any case, this instrument states one relevant objective in Article 4 that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception…” Another concern I have with Professor Foley’s contention on this topic is who should be considered the “parent” of cloned human embryos? In spite of some set backs, scientists are getting closer to cloning human embryos. Should that occur, will they be considered the “parents” of these embryos; will those who donated cell material used for each clone be viewed as the “parents”? If so, what liberty of theirs is at stake? But then Professor Foley concludes in this part of her discussion that the President’s view on the status of embryos and his interpretation of the Constitution conflict with the undeniable law of the land. I respectfully suggest she is wrong in this assertion.

Another of her points meriting response is her contention that the President relied on his personal moral views in the exercise of his veto power; Professor Foley further contends that this is fundamentally antithetical to the law because it was contrary to the Constitution (the President “pursue[d] an agenda contrary to our declared Constitution”) and thwarted the will of “We the People.” By her professed standard, it would follow that President Clinton acted unconstitutionally in his “thwarting” the will of “We the People” when he vetoed the partial birth abortion legislation duly enacted by Congress.

This brings me to Professor Foley’s general concerns about the difficulty with relating “personal moral views” and public policy and law making. It would seem that she would also be opposed to “personal moral views” that support environmental, safety and health, and education legislation, too. Of course, many who supported the Civil Rights Act of 1964 did so out of their “personal moral views.” We must not exclude the fact that President Lyndon Johnson relied, in part, on morality when he signed this important legislation on July 2, 1964. On the important occasion he stated, “But [discrimination] cannot continue. Our Constitution, the foundation of our Republic, forbids it. The principles of our freedom forbid it. Morality forbids it. And the law I will sign tonight forbids it.” [italics mine] I wonder if Professor Foley would consider the civil rights legislation tainted by the President’s remarks?

It would seem that Professor Foley and others make another invalid assumption about moral (or religious) views that support public acts such as law making. The second error that I believe she makes in this regard is her inability to concede that, at least on some issues, the views of moral and religious persons can coincide with persons who subscribe to purely positivist outlooks. History demonstrates that this coincidence has existed in the past. I am confident it will continue in the future.

A final comment pertains to Professor Foley’s rhetorical flourish when she claims that the President has assumed “near dictatorial power” in exercising his veto. The President did no such thing. He followed the Constitution as I have demonstrated. Now, had he used his Article II power as Commander-in-Chief of the Armed Forces and prohibited the Congressional attempt to override the veto, she would have reason to express this concern. But, this is not what the President did; he simply followed the Constitution.

Another aspect of her flourish is in her concluding sentence that the President’s veto did not preserve, protect or defend OUR Constitution; rather, “he was giving it [the Constitution] the finger.” Which finger, Professor? His index finger used in emphasizing a point? Perhaps it was a thumbs up gesture? Or, maybe it was a thumbs down gesture? Since the President is a Texan, perhaps Professor Foley did not recognize some effort on his part to signify “hook-um horns”. But, I shall leave the interpretation of any hand gestures to those more skilled in construing body language.       RJA sj