Huckabee’s Lincoln Moment
During the first GOP Presidential debate, Governor Mike Huckabee said he would extend 5th and 14th Amendment protections to include unborn human beings as persons, bypassing Roe v. Wade to end abortion. Is this his opportunity to follow in Lincoln’s footsteps?
In the wake of the “Planned Parenthood sells baby body parts” scandal, several Republican presidential candidates have taken strong pro-life stances against abortion and outlined their plans to defund or restrict abortion providers. But the most assertive proposal has come from Governor Mike Huckabee, who said during the first GOP debate:
I think the next president ought to invoke the Fifth and Fourteenth Amendments to the Constitution now that we clearly know that that baby inside the mother’s womb is a person at the moment of conception. … It’s time that we recognize the Supreme Court is not the supreme being, and we change the policy to be pro-life and protect children instead of rip up their body parts and sell them like they’re parts to a Buick.
During a campaign stop in Iowa this week, Huckabee doubled down, adding:
Again, as president, I would say, we will protect every person. And I know that that would just send shockwaves. There would be lawsuits immediately. Fine. Let there be. Let’s let this now work its way, but from the position — instead of being where we defend the killing of 60 million babies since 1973 — did you hear that? Sixty million.We have presumed that it’s okay to take their lives without due process and equal protection. Let us now operate on the principle that it is not okay and let them fight for the right to take those babies’ lives.
Although the 14th Amendment has been stretched beyond recognition by the Supreme Court over the last century, fetal personhood is a credible implication from the text that may be affirmed by even the staunchest originalist. At the time of the Amendment’s ratification,the public meaning of the legal term “person” was largely interchangeable with “human being” or “man.” Noah Webster’s 1865 Dictionary of the English Language defined the term person as relating “especially [to] a living human being; a man, woman, or child.” The entry for human includes those “belonging to the race of man.”
While not specifically including or excluding human beings in utero, the term “person” was a far more extensive category than its subset of “citizen.” Foreign nationals, Indian tribesmen, and African slaves were all considered persons, though in most cases they were not citizens.
Even in the mid-nineteenth century, state legislatures began to discard the obsolete “quickening” standard (inherited from Blackstone as an evidentiary rule) in order to protect the unborn from fertilization. By the time of the Fourteenth Amendment’s adoption in 1868, almost every state had criminalized abortion and most of these statutes were classified among “offenses against the person.”
In some states, the same legislatures that ratified the 14th Amendment also passed laws proscribing abortion. An Ohio legislative committee wrote just three months after ratification: “Let it be proclaimed to the world, and let it be impressed upon the conscience of every woman in the land ‘that the willful killing of a human being, at any stage of its existence, is murder.’”
If the Ohio legislature had not considered human beings in utero to be “persons in the full sense” how could they have issued such a declaration? Clearly they believed that banning abortion was consistent with the spirit of the 14th Amendment. After all, the amendment was intended to include within its scope of protection every member of the human race, no matter how despised or unwanted.
If the Supreme Court erred by failing to extend due process and equal protection to the unborn, how ought a Presidential candidate respond? Abraham Lincoln provides us a model. He worried that the Dred Scott decision, swallowed whole with the false doctrine of judicial supremacy, would undermine the American system altogether. In his first inaugural address, he said:
The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
Allowing the judicial branch to claim for itself the mantle of supreme constitutional interpretation has placed the executive and legislative branches in subservience to it, in violation of our system’s separation of co-equal powers and to the detriment of the American republican system. If a future President Huckabee would stand firm against judicial tyranny and assert the executive’s right to uphold and defend the Constitution with regard to abortion, it might just be his Lincoln moment.
— Josh Craddock is the Vice President of Personhood USA and a student at Harvard Law School.