Posts Tagged ‘personage’

Oct 09

Ockham’s Razor and Roe vs. Wade

“Truth is patient and waits in ambush for both the lie and the liar.”

-The Bushwhacker

Ockham’s razor is a scientific and philosophic rule or principle attributed to the 14th-century English logician William of Ockham. The principle states that the explanation of any phenomenon should make as few assumptions as possible, eliminating, or “shaving off,” those that make no difference in the observable predictions of the explanatory hypothesis or theory. The principle is often expressed in Latin as the lex parsimoniae or “law of succinctness”. We employ it here as it requires that the simplest of competing theories explaining unknown phenomena be sought first in terms of known quantities.

1.  The requirements of the Constitution.

Any analysis of Roe Vs Wade must be accomplished within the language of the Constitution.  Under the American Constitution the state is obligated to exercise its powers with extreme deference to the rights of the individual.  Certain of these rights are so crucial to the establishment and maintenance of a free society that special amendments, i.e. the Bill of Rights, were added to the Constitution to specifically stay the hand of the state when the exercise of its powers placed it in conflict with the interests of the individual.  The Fifth and Fourteenth Amendments specifically prohibit the taking of a human life without due process of law. The exception of privacy or meaningfulness of life is no where mentioned. The Fourteenth Amendment expands this guarantee by prohibiting any state from denying a person within its jurisdiction the equal protection of the law.

The Constitution extends these guarantees to all persons within the jurisdiction of the United States.  No other qualification is made.  The only conditions which can be identified anywhere in the Constitution are life, which is presumed to be present, and personage, which is a given condition of the human specie.  When life begins, stage of development, age, environment, meaningfulness of life, potential, viability, morality, religion nor any other condition are anywhere mentioned and do not compromise or modify these guarantees.  In Roe Vs Wade Justice Blackmun acknowledged, regarding the status of the fetus and referring to the Texas statute on abortion, that “If this suggestion of person hood is established,……the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” In other words, the only requirements held forth by the Constitution regarding the disposition of the unborn are first, that life be present, second, that it belong to a person, i.e. a human being, and third, if these criteria are met in the affirmative, that due process be extended before its life can be taken.  (NOTE: blue text is taken from Roe vs. Wade, Reports)

2. Proof that life is present:

The spirit and language of the Constitution are such that the presumption of the presence of  life, as it pertains to persons, must always preclude any assumption that life is not present.  In every action involving law the presence of life is presumed. This is so because the law is for the living and the only respondents are persons. It is the absence of life that must be verified and certified by the State or responsible authority in every instance along with the cause of death, if known.  Even the presumption of death, in the absence of a corpus, involves a lengthy lapse of time and a detailed process to accomplish.  It was therefore an automatic burden of the Court to establish, beyond any reasonable doubt, that life was not present in the unborn individual before issuing license to those who might take it.  This was a duty that the Court not only failed to accomplish but rejected out of hand.

The redundant and consistent history of human experience teaches two constants pertinent to this issue.

First, living things eventually and always become non-living things, i.e. they die.

Second, non-living things never become living things.

From these two facts we can derive two truths.

First, life is either present or it is not.  This is a statement of inherent truth, a tautology.

Second, no specie of life ever arises spontaneously i.e. of itself.

If these things are true then it follows that life must be present from the point of conception until death occurs.  This conclusion is inescapable.  When life begins is of no consequence.  It is the presence of life that is of the essence. This is a simple but valid Aristotelian syllogism leading to a simple, valid and irrefutable conclusion.  Life begets only life.  It may survive only a short time and then die, but first it was alive.

Stated another way, if life is not present at conception it can never be present at any point subsequent to conception.

3. Species and personage.

All living things are a product of a reproductive process, sexual or asexual.  The reproduction of anything requires the existence of a template, be it a die, a blue print, a set of repeatable instructions or whatever to determine what species of thing will be reproduced.  Among the living that template is genetics.  Species among the living is a property of genetics and nothing else.  Therefore if the living being in question is of human origin and human destiny then between the point of its origin and any time in the future it can only be regarded as human.  If it is human then two things become immediately apparent.  First its being constitutes a species of being and therefore an entity of life as opposed to a differentiated or undifferentiated tissue of life. (Example: a skin cell is a differentiated tissue of life.) Second, if its species is human, it is a person. These things are valid within the plain meaning of our common language. No qualification is needed. Nor is qualification permissible.

4.  Due Process.

As quoted above, Justice Blackmun acknowledged that “If this suggestion of person hood is established…..the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” In other words due process is required before its life can be taken. (Note: the use of the word abortion is applicable only if the fertilized ovum has successfully attached to the uterine wall and gestation has begun such that forcefully removing it would cause its death. As Blackmun stated, the law “deals in— the known, not the unknown”, and therefore the knowable rather than the unknowable.)

5.  Additional unsupportable assumptions contained in Roe: (A few are briefly examined below.)

First: Blackmun’s position requires the acceptance of the notion that there is a period of gestation between conception and the onset of ‘viability’ (about 24 weeks) that can only be referred to as pre-living or pre-viable.  Such a notion is unique among all pertinent schools of thought.

Second: Blackmun holds forth that the law “deals in reality, not obscurity,….the known rather than the unknown” and “does not deal in speculation” and, quoting Justice Clark, that the law recognizes the “actual” and not “potential”.

There are two words that derived from the ancient Greek word vita, which means life.  One is viability, which refers to the ability of a living thing to grow, to develop, to continue on or live.  In other words it denotes ‘potential’.  The other modern word derived from vita is vitality.  This word refers to the presence of the life process. In other words the ‘actual’ existence or presence of life. Yet the word Blackmun chose to establish his ruling was ‘viability’ i.e. the word denoting potential, and ignored the word denoting the actual presence of the life process.  In other words he embraced the ‘unknown’ and unknowable rather than the knowable, the presence of the life process.  In light of his views on ‘formation’ this point becomes crucial.

Third: The decision states (Justice Douglass concurring quoting Justice Clark) that “When sperm meets egg life may eventually form, but quite often it does not…” and “The phenomenon of life takes time to develop, and until it is actually present it cannot be destroyed. Its interruption prior to formation would hardly be a homicide….” (italics mine.)

In nature numerous things may be observed over time to take form.  Crystals form, clouds form, canyons form and so on.  Each of these formations is a consequence of the process that formed them, such as crystallization, condensation, erosion etc.  Life also is a function of process.  Whatever form it takes is incidental to, and a consequence of, that process.  Do not the dead, prior to decay, have just as much form as the living?  It is the process that is of the essence, not the formation.  Nothing happens in the absence of process.  The process is life.

Fourth: Blackmun looks to the law and the Constitution for a definition of personage and finding none declares that “the unborn have never been recognized in the law as persons in the whole sense.” His statements beg the question: Does the law define our common language or does our common language give meaning to the law?  The purpose of the Constitution is not to define personage but to contain tyranny.  It should be noted that the Constitution requires prior personage as a condition of bestowing citizenship.  Citizenship is bestowed on persons born and persons naturalized.  Personage is the prerequisite, not the achievement, and is therefore assumed.  Where in law is it established that birth bestows personage or membership in the human race?

Fifth: Blackmun, on the basis of meager precedent and an inconclusive examination of the thinking of the Stoics, ancient healers and philosophers, English common law, the American Medical Association, and so forth decided that life must not be present in the unborn.  “When life is present is a question we do not try to resolve.” To assume otherwise would have required a determination of its species.  This he carefully avoided as well.  His position also required that viability and the acquisition of life be achieved in the absence of the life process.  In other words, conception and the process of gestation plays no significant or compelling roll in the reproductive process and is accomplished in the absence of life.   “When sperm meets egg life may eventually form, but quite often it does not…” This assumes that the onset of life is a coincidental and spontaneous occurrence only casually associated with the reproductive process.  Ignored is the fact that viability is a function of vitality, not visa versa, and is meaningless in the absence of life. In other words, the requirement of vitality precedes the onset of viability.  Life must first be present before the possibility of potential can emerge.   The notion that life is somehow ‘acquired’ at about the 24th or 28th week of gestation and its presence determined by the onset of viability is, to put it generously,  unique.  Stated another way, one cannot ‘become viable’ and then become vital or alive.  Viability is a condition of vitality or life, not it’s determinate.

Sixth: In addition, Blackmun’s assumption that life was not present in the unborn is not supported by any credible body of fact or evidence. Blackmun and the Court assume the validity of an un-provable negative  (Blackmun, his disclaimer not withstanding, had to make this assumption in order to reach his conclusion.  The presence of life requires determination of species.  Determination of species would have required the protection of the law.) To Blackmun such meager evidence as presented itself rested upon the ignorant assumptions of ancient traditions.  It was on these that he built is argument on ‘the compelling point’ of ‘viability’.

Conversely, the probability that life is present is supported by virtually every credible source within reach of the Court.  He had only to ask himself, “can the process responsible for propagating life do so in the absence of life?”  and  “would it be reasonable to assume that it could?”  From here he would have been required to investigate and deduce a conclusion other than the one he reached.

NOTE: Again, the initial and fundamental presumption of all law is that life is present and that it belongs to a human being. This is so because the law is for the living and the only respondents are persons.

Seventh: Blackmun assumes that the individual has the right to privacy, which is correct.  He also assumes that the individual has the right to do just about anything they want with their body, including having an abortion.  This is only partly correct.  In a free society the individual only has unfettered authority, and therefore the right, to do those things he can do for himself and to himself and then only within reasonable limits that may be imposed by law regarding the legitimate interests of the State.  For example, the individual has the right to buy or build or otherwise acquire a house for himself.  But he does not inherently have the right to a house.  He has the right to acquire and be secure in what he has acquired but not the right to have in the absence of acquisition, i.e. his ability to acquire.   In the matter of abortion, the female does not automatically have the right to an abortion.  She may, however, have the right to petition the court or an appropriate governing body to acquire an abortion, but she does not automatically have the right to a service that must be provided by another.  Such a ‘right’ would require the forfeiture of authority by another party.  The State has the power to deny such services if the State reasonably believes it is in its best interest and its legislative bodies so decide.  The individual does not have the inherent ‘right’ to acquire a service from someone who would be in violation of  State law by rendering that service.  Until the question of the presence of life and condition of personage are properly resolved and any reasonable doubt removed a legislative body might very reasonably decide, in order to forestall the possibility of injustice and with the exception of medical emergency, that a moratorium should be placed on abortion providers as a condition of their license.  Reasonable doubt is a well established principle of law, the very purpose of which is to forestall injustice.  Blackmun, rather than resolve these doubts, acted presumptively and precipitously to preclude them.

These are a few of the more obvious errors to be found in the text of Roe.  If, as the Justice claims, “this suggestion of person hood is established,…..the fetus’ right to life is then guaranteed specifically by the Amendment.” Then all that has gone before becomes moot.

To reiterate, during the deliberations of the Court Justice Blackmun assessed the thinking of the Stoics, the ancient philosophers and healers, theologians, the AMA, British and American common law and what uncertain and meager legal precedents were available, the conflicting ideas of current thinkers and scientists, etc. and so-on, and could find no compelling theory or cause supporting the acknowledgement of the presence of life or personage of the unborn. Yet he ignored the most common and empirical evidence that was within immediate and easy reach of the Court, thus failing the test readily available within the principle of Ockham’s Razor.

Footnotes

pg 7. Ockham’s Razor and Roe Vs. Wade

Ockham’s Razor: Webster’s Dictionary and Wikipedia

Blackmun’s Quotes: (in Blue)1973 Supreme Court Reports, Roe Vs. Wade

All else is the original work of the author.