We can argue about this ‘till the cows come home. There are justifications on both sides which tend to be moral ones; but none are substantively legal arguments. The 9th and 10th amendments add nothing to the Constitution except seed bed for argument. Even the remaining ones leave us wanting more. For example, the IV amendment prescribes the probable cause basis for the issue of a warrant, but it does not state when a warrant is necessary despite it advisement that persons et al are to be secure against unreasonable(?) searches and seizures. That’s one huge reason why we have the common law and follow precedent.
One reason that Madison and Hamilton eschewed a list of rights was because it could be an endless list. Also, what is the purpose of such a list? People during the founding period believed it was to be a bulwark against the potential oppression of the new central government they were creating and sanctioning. They did not view it as a bulwark against the predations of each other. That was (and is) viewed as a function of statutory law. Therein lies the rub. Federal or state law could constrain or proscribe abortion (as it did prior to Roe). But the 14th amendment (and the accompanying substantive due process) rears its ugly head quite frequently and therein lies another rub. Its application frequently is framed as the result of a moral decision.
In the end, we can’t see (without a major personal effort) an unborn child anymore than we can see the person who is to be executed in our state or another state. We assume that if one is to be executed that it is deserved and just. Yet, many pro-life advocates support the death penalty almost with alacrity. I oppose both abortion and the death penalty; the former because it destroys a life for convenience sake (yes Babe, convenience) and the latter because so many findings of guilt are uncertain.


"Generosity. That was my first mistake."
"Experience must be our only guide; reason may mislead us."
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