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No. 70 Roman Theological Forum | Article Index | Study Program May 1997


by Edward J. Kelty

The following article is composed of some excerpts from the doctoral thesis, Founding Father John Witherspoon on the Person, Family, and the Constitutional Right to Life and its Modern Denial by the Supreme Court in ROE VS. WADE, a dissertation successfully defended in the Faculty of Philosophy of The Pontifical University of St. Thomas Aquinas, Rome, in partial fulfillment of the requirements for the degree of doctor of philosophy by Fr. Edward J. Kelty, Oblate of Wisdom, on 3 February 1996, at Rome.
        John Witherspoon was born on February 5, 1723. He took Latin and French at grammar school and entered the University of Edinburgh at the age of thirteen, where he took Latin, Greek, Logic, Natural Philosophy and optional courses in Mathematics, Moral Philosophy and History. On February 23, 1736, he was granted a Master of Arts in Philosophy for his thesis of twelve pages, De Mentis Immortalitate, which was written in Latin.

        As third President of Princeton University, Witherspoon's influence was vast in the field of education by instructing and forming the first Presidents of the following American Colleges: Union College of New York, Washington College and Hampden-Sidney College of Virginia; Mount Zion College in South Carolina; Queen's College and the University of North Carolina; Washington, Greenville, Tusculum and Cumberland Colleges and the University of Nashville in Tennessee; Jefferson College, Pennsylvania; and Transylvania College, Kentucky. Of his layman graduates James Madison became fourth President of the United States. Aaron Burr became Vice-President. Ten became cabinet officers and sixty served in the U.S. Senate or House of Representatives in Congress. Twelve became Governors of States and fifty-six members of State Legislative bodies and three Justices of the Supreme Court of the U.S. Of the twenty-five College graduates at the Continental Congress, nine were from Princeton University, among which six had Witherspoon's signature on their College diplomas. 1

        For John Witherspoon the right to life is one of the chief natural rights which belonged to man even in the natural state in which he lived before the social contract was ratified and before society was formed. These perfect rights of the natural state which man enjoys after society was established are those rights which society keeps and protects under the social contract once it is ratified. The first and foremost right is the right to life. Other perfect rights Witherspoon lists are: man employing his faculties for his own use, a right to the air, water and earth, which shows how basic and fundamental these natural rights were according to Witherspoon. Witherspoon follows Francis Hutcheson in listing these perfect rights which first were present in the natural state of man before the social contract. Hutcheson called these natural rights, rights of the perfect sort and lists as the first of these rights a right to life and safety. 2 Witherspoon includes the right to life among the political protections which the state must safeguard.

        Witherspoon's list of man's perfect rights in the civil state after the natural state is left behind, which are guaranteed full protection under the social contract, is as follows:

1) a right to life;
2) a right to employ his faculties and industry for his own use;
3) a right to things common and necessary, as air, water, earth;
4) a right to personal liberty;
5) a power over his own life;
6) a right to private judgment in matters of opinion;
7) a right to associate with any person or persons;
8) a right to character. 3
        These rights, with the right to life at the top of Witherspoon's list, originate from the state of nature and are protected by the social contract which formed civil society. They are the natural rights which everyone enjoys and are the perfect rights of every individual person within the state after the social contract and society have been accepted and founded, respectively.

"It is easy to perceive that all these rights belong to a state of natural liberty, and that it would be unjust and unequal for any individual to hinder or abridge another in any one of them, without consent, or unless it be in just retaliation for injury received." 4

        Profound indeed was Witherspoon's discussion on the right to life after the natural state of man was left behind and the protection that this same right to life demands from society. Within the new state the subjects of that same state must have their natural rights protected which they enjoyed in the previous natural state.

"The rights of subjects in a social state may be all summed up in protection, that is to say those who have surrendered part of their natural rights expect the strength of the public arm to defend and improve what remains. It ought to be observed that the only reward that a state can be supposed to bestow upon good subjects in general is protection and defense." 5

        Witherspoon lists the natural rights which are both essential and universal to each person and must be protected by the social contract under the constitution and laws of the new society. They are listed as such:

a) to act for his own protection
b) to defend himself
c) and not be dominated by another 6

        Jacques Maritain's treatment of these same natural rights of man within the modern state is an excellent guide to their true greatness and significance for modern man. In his broader and richer comprehension of these fundamental rights Maritain lists:

- the right to existence and life;
- the right to personal freedom or to conduct one's own life as master of oneself and of one's acts, responsible before God and the law of the community;
- the right to the pursuit of the perfection of moral and rational human life;
- the right to the pursuit of eternal good;
- the right to keep one's body whole;
- the right to marry and to raise a family which will be assured of the liberties due it;
- the right of association;
- the respect for human dignity in each individual, whether or not he represents an economic value for society. 7
        Maritain remarks that the American Declaration of Rights (which Witherspoon played a major role in fashioning) rests mainly upon man's Christian dignity despite Locke's humanism.

"The American Declaration of Independence, however marked by the influence of Locke and natural religion, adhered more closely to the original Christian character of human rights." 8

        Maritain makes a forceful case concerning the American experience and the true source of these natural rights which are protected by the Declaration of Independence and the United States Constitution.

"To the Pilgrim Fathers, making their constitutions in New England in the seventeenth century, these rights had a Christian origin. The consciousness of the rights of person really has its origin in the conception of man and of natural law established by centuries of Christian philosophy."  9

        These rights of man, whose sole aim is to safeguard and protect the person, are contained in all eighteenth century nation-state constitutions, including the American Declaration of Independence and United States Constitution, which Witherspoon helped frame.

"The Declaration of Rights inscribed in a great many constitutions and notably in the American and French constitutions of the end of the eighteenth century, enacted laws not only for the citizen, but for the human being." 10

        Specifically on the U.S. Constitution which places the right to life on the highest pedestal, Maritain sharply notes, "the Fourteenth Amendment to the Constitution of the United States declares that no State shall deprive any person of life." 11 Likewise The International Declaration of the Rights of Man in its first article makes this same inalienable principle and right of man when it states, "It is the duty of every State to recognize for every individual the equal right to life." 12

        Witherspoon's philosophical foe David Hume moreover, saw a clear and present danger that must be avoided. Hume warned that making any innovations to the foundation principles of any nation-state constitution is perilous to the society.

"In order to preserve stability in government, the new brood should conform themselves to the established constitution and nearly follow the path which their fathers treading in the footsteps of theirs, had marked out for them. Violent innovations no individual is entitled to make, they are even dangerous to be attempted by the legislature, more ill than good is ever to be expected from them." 13

        John Witherspoon's Defense of The Right to Life - Parents and The Right to Life  

        Parents have a duty to protect their children's right to life and, when they fail to do so, Witherspoon condemns such actions in the strongest terms. "It is no high degree of virtue to love our offspring, or provide for a family; but to neglect either is exceedingly vicious." 14

        Witherspoon's succinct description of human life at its beginnings demands the right to the protection of that life especially since man's beginnings in life are defenseless.

"Human creatures at their birth are in a state weaker and more helpless than any other animals. They also arrive much more slowly at maturity, and need by far the most assistance and cultivation." 15

        A parent's right to take the life of one's own child granted by the state, which in history has been shamefully noted, Witherspoon saw as a grave injustice.

"Some nations have given parents the power of life and death over their children, and Hobbes insists that children are the goods and absolute property of their parents and that they may alienate them and sell them either for a time, or for life. But both of these rights seem ill founded, because they are contrary to the end of this right viz. instruction and protection." 16

        Witherspoon sternly denied the power of parents to take the life of their own child, "We have denied the power of life and death to parents." 17

        Roe v. Wade: A Denial of the Declaration of Rights and the U. S. Constitution  

        A denial and reversal of the right to life has taken place with Roe v. Wade which has not gone unnoticed.

"The fact that legislation in many countries, perhaps even departing from basic principles of their Constitution, has determined not to punish these practices against life, and even to make them altogether legal, is both a disturbing symptom and a significant cause of grave moral decline."  18

        A strange turn of events has happened which represents a serious dilemma in the area of constitutional rights.

"It is not only that in generalized opinion these attacks tend no longer to be considered as `crimes'; paradoxically they assume the nature of rights to the point that the state is called upon to give them legal recognition and to make them available through the free services of health-care personnel."  19

        It is a fatal departure from the English legal roots and tradition upon which the American constitution was founded.

"One of the most respected commentators on English law, and one who reflected common law practice just prior to the beginning of modern legislation on abortion, was the eighteenth-century author William Blackstone. In treating of the rights of persons, Blackstone distinguishes between absolute and relative rights. Absolute rights pertain to each single person prior to an established social relationship. Some believe the American Declaration of Independence, written the decade after Blackstone's work appeared, was influenced by his treatment of rights. The absolute rights are those to personal security, to liberty, and to property. Primary under personal security is a person's legal and uninterrupted enjoyment of his life. Blackstone explains: Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in the contemplation of law as soon as an infant is able to stir in the mother's womb. An infant en ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes." 20

        The founders of the Declaratiuon of Independence and the U.S. Constitution were frequently mentioned in Roe v. Wade in the Court's opinion. It appears from the Court's decision as if the mind of the Founding Fathers played a guiding role in the Roe v. Wade decision favoring abortion.

        But John Witherspoon and the Founding Fathers framed the American Declaration of Independence clearly with the right to life.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the Right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."  21

        Moreover, the Universal Declaration of Human Rights states the same right-to-life principle, when, in 1948, the United Nations claimed the "equal and inalienable rights of all members of the human family" which are "life, liberty, and the security of the person." 22

        The legal question in Roe vs. Wade upon which the decision was based is as follows.

"The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal `liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras."  23

        The court claimed that the right of a woman to terminate her pregnancy was found in the concept of personal liberty protected by the Fourteenth Amendment.

"However, the Constitution does not mention explicitly any right of privacy. This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or in the Ninth Amendment's reservation of rights to people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. We therefore conclude that the right of personal privacy includes the abortion decision." 24

        Justice Rhenquist specified the constitutional travesty which befell the nation in Roe v. Wade on the constitutional issue upon which the court presented its case.

"The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not so rooted in the traditions and conscience of our people as to be ranked as fundamental .... the very existence of the debate is evidence that the `right' to an abortion is not so universally accepted as the appellant would have us believe .... To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 25

        What has occurred with this precedent, which sets a woman's privacy over another person's right to life, which is more a primordial right than the right to privacy, is a total and complete ruin of the hierarchy of constitutional rights.

"In none of the cases recognizing the right of privacy was human life or even potential human life at stake. That fact alone should have disqualified the claim that the mother's interest in terminating the pregnancy was within the meaning of liberty in the Fourteenth Amendment." 26

        Justice Rhenquist in the dissenting opinion questioned the supposed constitutional right of privacy violated by the State of Texas in Roe v. Wade,

"in the ordinary usage of that word. Nor is the privacy that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourteenth Amendment to the Constitution." 27

        Justice Rhenquist concluded by stating that the usurpation of constitutional power that Roe promoted in fact had no legal standing.

"There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States power to legislate with respect to this matter." 28

        Contrary to what the majority held, Justice Byron White saw the constitutional issue in Roe entirely different. In fact the court overstepped its constitutional bounds by violating the right to life.

"I find nothing in the language of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or the potential life which she carries. I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." 29

        An article in the New York Times less than two months after the decision, by Fr. Daniel A. Degan, S.J., a lawyer who taught at Syracuse University Law School, uncovered the constitutional tragedy both Justices Rhenquist and White noted.

"The decision comes in the guise of a legal question, a constitutional right of privacy, but if the only question had been the privacy of the woman, we could all have gone home long ago. The new right of personal privacy bars laws protecting the fetus. The Court's opinion in Roe v. Wade made much of saying that the arguments against abortion were based upon `one theory of life,' but the court has now ejected into constitutional law its own theory of fetal life. The Court's theory, simply stated, is that fetal life, even to the moment of birth, has only the barest claim to protection (if any) when measured against a woman's right to terminate her pregnancy."  30


        The inalienable right-to-life principle enshrined in America's founding documents must be safeguarded by the governmental institutions which have a constitutional duty to safeguard such a fundamental human right, just as John Witherspoon did in his writings when these rights were threatened during the American Revolutionary War.

"The inalienable rights of the person must be recognized and respected by civil society and political authority. These human rights depend neither on single individuals nor on parents, nor do they represent a concession made by society and the state; they pertain to human nature and are inherent in the person by virtue of the creative act from which the person took his or her origin. Among such fundamental rights one should mention in this regard: a) every being's right to life and physical integrity from the moment of conception until death; b) the child's right to be conceived, brought into the world and brought up by his parents." 31

        The exclusion of innocent human beings from the constitutional right to life is perilous for any constitutional system and its citizenry.

        "In various states certain laws authorized the direct suppression of innocents: the moment a positive law deprives a category of human beings of the protection which civil legislation must accord them, the state is denying the equality of all before the law. When the state does not place its power at the service of the rights of each citizen, and in particular the more vulnerable, the very foundations of a state based on law are undermined." 32

        Law ceases to be law when it denys its own nature.

"Human law can abstain from punishment but it cannot declare to be right what would be opposed to the natural law, for this opposition suffices to give the assurance that a law is not a law at all."  33

        The legislative remedy to rectify the constitutional disaster caused by Roe vs. Wade is as follows.

"It is part of the duty of the public authority to ensure that the civil law is regulated according to the fundamental norms of the moral law in matters concerning human rights, human life and the institution of the family. Politicians must commit themselves, through their interventions upon public opinion, to securing in society the widest possible consensus on such essential points and to consolidating this consensus wherever it risks being weakened or is in danger of collapse."  34

        Legislative initiative in the form of laws and penalties must come now.

"As a consequence of the respect and protection which must be ensured for the unborn child from the moment of his conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights. The law cannot tolerate - indeed it must expressly forbid -that human beings, even at the embryonic stage, should be treated as objects of experimentation, be mutilated or destroyed with the excuse that they are superfluous or incapable of developing normally." 35

        What is being proposed as something other than murder must be clearly seen for what it really is by the law.

"There is no country where legislation does not forbid and punish murder. Furthermore, many countries had specifically applied this condemnation and these penalties to the particular case of procured abortion." 36

        It is the personal, professional and civic duty of all people to bear the responsibility to end the constitutional tragedy concerning the right to life, both in law and in man's conscience.

"All men of good will must commit themselves, particularly within their professional field and in the exercise of their civil rights, to ensuring the reform of morally unacceptable civil laws and the corrections of their civil practices. In addition, conscientious objection vis-à-vis such laws must be supported and recognized." 37

        Based upon an implicit right of privacy the U.S. Supreme Court has denied the right to personhood and the right to life in an unprecedented way for all Americans in their fetal stage. Roe vs. Wade must be reversed to safeguard the constitutional principle of the right to life which Founding Father John Witherspoon helped place explicitly in the Declaration of Independence and implicitly in the U.S. Constitution and who ardently defended the right-to-life during his life through his philosophical writings.


1. Varnum Collins; President Witherspoon (Arno Press, New York, 1969), pages 224 and 226.

2. John Witherspoon, DD., The Works of John Witherspoon, Essays, Sermons, &c. on Important Subjects together with his Lectures on Moral Philosophy, Eloquence and Divinity, His Speeches in the American Congress (nine vols; printed for Ogle & Aikman; J. Pillans & Sons; J. Ritchie; and John Turnbull; Edinburgh, 1804), "Lectures on Eloquence", Volume VII, lecture x, p. 76.

3. Works of John Witherspoon. Vol. VII, lecture x, p. 76.

4. Works of John Witherspoon. Vol. VII, lecture x, p. 77.

5. Works of John Witherspoon. Vol. VII, lecture xii, "Of Civil Society", p. 95.

6. Works of John Witherspoon. Vol. VII, lecture xii, pp. 94-95.

7. Jacques Maritain, The Rights of Man and Natural Law (New York: Charles Scribner's Sons, 1943) pp. 79-80.

8. Ibid.

9. Ibid. p. 81.

10. Ibid. p. 115.

11. Ibid. p. 115.

12. Ibid. p. 116.

13. David Hume, Essays: Moral, Political, and Literary (2 vols. London: Scientia Verlag Aalen, 1964), Essay xii, p. 452.

14. Works of John Witherspoon. Vol. VII, lecture xi, p. 68.

15. Works of John Witherspoon. Vol. VII, lecture xi, p. 86.

16. Works of John Witherspoon. Vol. VII, lecture xi, "Relation of Parents and Children," p. 91.

17. Works of John Witherspoon. Vol. VII, lecture xi, p. 92.

18. Pope John Paul II, The Gospel of Life - Evangelium Vitae (Boston: Pauline Books & Media, 1995), no. 4.

19. Internet: Alta Vista, Life and the High Court (http:/, pp. 25-26.

20. Germain Grisez, Abortion: The Myths, the Realities, and the Arguments (New York: Corpus Books, 1972), pp. 187-188.

21. Internet: Declaration of Independence, paragraph 2.

22. Internet: United Nations Declaration of Human Rights, Preamble, paragraph 1.

23. Supreme Court Reporter, Volume 93, Cases Argued and Determined in the Supreme Court of the United States (October Term, 1972; St. Paul, Minnesota: West Publishing Co. 1974), Roe V. Wade, 93 S.Ct. 705; p. 715.

24. Ibid. pp. 726-727.

25. Ibid. pp. 737-738.

26. Internet: Life and the High Court, p. 3.

27. Roe V. Wade, 93 S. Ct. 705; p. 736.

28. Ibid. p. 337.

29. Ibid. p. 736.

30. Rev. Daniel A. Degnan, S.J., "The Supreme Court as Moral Arbiter," New York Times, 10 March 1973, p. 29.

31. Congregation for the Doctrine of the Faith, Respect For Human Life - Donum Vitae (Boston: St. Paul Books & Media, 1987), p. 36.

32. Pope John Paul II, The Gospel of Life, no. 19.

33. Congregation for the Doctrine of the Faith, Declaration on Procured Abortion (Boston: St. Paul Books & Media, 1974) p. 19.

34. Congregation for the Doctrine of the Faith, The Gift of Life, p. 38.

35. Ibid. p. 37.

36. Ibid. p. 17.

37. Ibid. p. 38.

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