Is your argument not substantially damaged by the enactment of the Fourteenth Amendment and its restrictions on state government's alleged power to deprive any person of life, liberty or property without due process of law?
The Fourteenth Amendment was obviously enacted well after the Tenth Amendment and therefore limited the Tenth Amendment as necessary to effectuate the purposes of the Fourteenth Amendment. Such is the uniform analysis of conflicts between prior and subsequent enactments.
Like it or not, the Fourteenth Amendment is broad and sweeping in its scope and, as to abortion being permitted by the states after 1865, seems to be a dispositive prohibition of any power of states (to allow abortion) and another praiseworthy restriction of government powers and that amendment does not grant to the federales any new power to approve much less mandate abortion on a federal level.
Libertarians should applaud and support a constitutional provision that prohibits state governments from depriving any person of life, liberty or property without due process of law.
To the extent that it may be claimed that there is a conflict between the right to life of the child in utero and the liberty interest of that child's mother, it would seem fairly obvious that both mother and child are persons and that, without life, there can be no liberty or property interest. Life is the primary right.
It is no solution to do as Herod Blackmun did and define the unborn out of the human race and thereby deny the personhood and rights of the unborn for the convenience of the adults. Blackmun reached his conclusion by relying on the ancient pagan Roman law of paterfamilia under which the father (not the mother) had the sole right to order his offspring killed without due process and without interference by government up until the offspring reached the age of 21 years.
Federal officials and judges are likewise constrained by the Fifth Amendment (enacted simultaneously with the Tenth as parts of the Bill of Rights). The unborn are guilty of nothing but being perceived as an inconvenience to some related adults which is no excuse for giving the mother the sole right to order the child killed.
“Like it or not, the Fourteenth Amendment is broad and sweeping in its scope”
I hate to sound rude but like it or not the SCOTUS has upheld Roe v Wade and apparently doesn’t give a hoot about the 14th amendment. Roe v Wade is now considered “settled law” The Supremes will likely never go back on it. So that argument is moot. Look for gay marriage to be the law of the land in the near future.
I would rather see abortion and gay marriage illegal in at least a good portion of the states than legal in all of them.
Thanks. I’ve found this a really interesting discussion. I’ve never seen the problem approached from this perspective. Thanks for your clear explanation.
I read your post to my lovely bride.
Her comment?
“Brilliant.”