II. The Power to Establish Personhood Under the Fourteenth Amendment Resides with the States.

The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. (38)

--Chief Justice Morrison Waite

The Fourteenth Amendment, Section 1, states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (39) Missing in this textual inquiry of the Constitution is the consideration of a question at the heart of the Roe opinion: where in the Constitution does it give the federal government the power to decide who is and who is not a person under the Fourteenth Amendment, or anywhere else for that matter? The closest the Constitution comes to this is the grant of power to Congress under Article 1, Section 8, "To establish an uniform Rule of Naturalization." Naturalization is the power to turn persons into citizens. (40) "Persons" is us ed as a broad term denoting all human beings, as distinct from the more narrow term "citizens," denoting a member of the "political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives." (41) Hence, the Constitution does not grant the federal government control over the status of a human being as a "person" as it does their status as a citizen.

Personhood is derived from the inherent, natural rights of the people and the inherent power of the several states. (42) In Strader et al. v. Graham, the court declared, "[E]very State has an undoubted right to determine the status of domestic and social condition of the persons domiciled within its territory, except so far as the powers of the States in this respect are restrained, or duties and obligations imposed upon them by the Constitution of the United States." (43)

The rights of life, liberty and property are natural rights which pre-existed our state and federal governments, as affirmed in the Declaration of Independence. It is the states, not the federal government, which have the primary duty to protect those unalienable rights. As the Court stated in United States v. Cruikshank:

The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. (44) The federal constitution was derived from the sovereign states, (45) who in turn received their power of government from the people. (46) Our federal government is one of limited, enumerated powers--powers granted to it from these states. (47) The Court affirmed such basic notions of federalism in Printz v. United States and observed:

It is incontestible that the Constitution established a system of "dual sovereignty." Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at a45 (J. Madison). This is reflected throughout the Constitution's text, including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, [section] 3; the Judicial Power Clause, Art. III,[section] 2, and the Privileges and Immunities Clause, Art. IV, [section] 2, which speak of the...