Byrn vs. NEW YORK CITY HEALTH & HOSPITALS
http://www.aipnews.com/talk/forums/thread-view.asp?tid=1774&posts=5&start=1
Judge Adrian Burke:
*excerpt*
The more telling fact than the present legislation’s irrationality is its unconstitutionality. The unconstitutionality stems from its inherent conflict with the Declaration of Independence, the basic instrument which gave birth to our democracy. The Declaration has the force of law and the constitutions of the United States and of the various States must harmonize with its tenets. The Declaration when it proclaimed “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” restated the natural law. It was intended to serve as a perpetual reminder that rulers, legislators and Judges were without power to deprive human beings of their rights.
Unless there had been a Thomas Jefferson who was educated by a philosophy professor to know the primacy of the natural law — there would be no United States of America. For, if the Declaration had been written by a pragmatist for expedient reasons we never could have enlisted the sympathies and agreement of such a large part of the then world, including members of the British Parliament in our righteous cause. They would know the pragmatic reasoning would be nothing more than pettifoggery, and had no basis in law.
We began our legal life as a Nation and a State with the guarantee that these were inalienable rights that come not from the State but from an external source of authority superior to the State which authority regulated our inalienable liberties and with which our laws and Constitutions must now conform. That authority alone establishes the norms which test the validity of State legislation. It also tests the Constitutions and the United Nations Convention against genocide which forbids any Nation or State to classify any group of living human beings as fit subjects for annihilation. In sum, there is the law which forbids such expediency. It is the inalienable right to life in the nature of the child embryo who is “a human” and is “a living being”.
Inalienable means that it is incapable of being surrendered (Webster’s Third New International Dictionary). Thus, the butchering of a foetus under the present law is inherently wrong, as it is an illegal interference with the life of a human being of nature.
The report of the Governor’s commission explanation that it was not dealing with “morality” but only law, overlooked the fact that it turned its back on the law — the natural law reiterated in the Declaration of Independence. The reasons given for the enactment of the present abortion law are irrational from a medical, scientific and factually objective analysis. There is no need for abortion except in very limited medical circumstances.
Chapter 127 of the Laws of 1970, authorizing abortion “on demand” is a resort to expediency which is recognized everywhere as the death of principle. The rationale of the majority opinion admits that customs do change and the Legislature could, if it should in the future be the attitude of the Legislature, do away with old folks and eliminate the great expense the aged are to the taxpayers. This, of course, would parallel the Hitler laws which decreed the death of all the inmates of mental hospitals and also decreed that for [p894] many purposes non-Aryans were nonpersons.
Chief Judge Lehman’s understanding of inalienable rights is the only understanding that makes any sense out of the Declaration of Independence, the Magna Carta, the Bill of Rights and the United Nations Convention against genocide.
According to the majority opinion, valid law is a merger of legislative and executive emotions, whims and hunches — announced today and perhaps changed tomorrow. One’s rights are never permanent as the existence of the natural law is denied. The majority suggests that all law is man made. Such a philosophy of law we know would not attract persons educated in philosophy. Others, however, are attracted by pragmatism. This is just as dangerous as expediency because certain individuals think: we are realistic and self-sufficient — this legislation will control population growth and assist the taxpayers.
*excerpt*
Dead wrong.
Objectively, ontologically, permanently, fatally.
There is only one litmus for constitutionality, and that is the black-letter law of the Constitution itself. Period. End of paragraph. End of subject.
Thanks for posting.
The Declaration is also acknowledged as a basis for our Federal law in the Quinlan judgement from New Jersey. (sorry, I don’t have a link.)
“n1 The importance of the preservation of life is memorialized in various organic documents. The Declaration of Independence states as self-evident truths “that all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This ideal is inherent in the Constitution of the United States. It is explicitly recognized in our Constitution of 1947 which provides for “certain natural and unalienable rights, among which are those of enjoying and defending life.” N.J. Const. (1947), Art. I, par. 1. Our State government is established to protect such rights, N.J. Const. (1947), Art. I, par. 2, and, acting through the Attorney General (N.J.S.A. 52:17A-4(h)), it enforces them. “