It is a clear declaration of rights and refers specifically to the unborn: The first basis is a principle in Blackstone referring directly to the unborn, as clear and direct as any reference to the Right to Privacy, or any of the other rights listed in the Bill of Rights.
The legal question is: Do the rights in the Bill of Rights, and the immunities protected by the 14th Amendment, apply to the unborn? In other words, is there in English Common Law any declaration of the rights of the unborn which would warrant incorporation in the 14th Amendment? The answer is "Yes", and there is a twofold basis in Common Law. Wade, as one of the "non-enumerated" rights protected and guaranteed by the 9th Amendment of the Constitution.
The Bill of Rights was, in fact, 'the incorporation and absorption of rights already established in English Common Law.' Because of the work of Brandeis and Warren, privacy was recognized as a constitutional right by the Supreme Court in Griswold v.
This is so true that when Louis Brandeis and Sam Warren, Boston lawyers, wrote their ground-breaking study of the Right to Privacy in 1890, they drew almost exclusively upon principles of English Common Law.Įnglish Common Law contains the precedents that became the very language of our Constitution, and it is from this well of principles, precedents and declarations that our legal system draws its precedents and principles, as well as the very language in which these precedents and principles are expressed. Most of the rights secured by the Constitution of the United States in the Bill of Right were first enshrined in English Common Law and were an enumeration or incorporation of these rights into our Constitution.
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