Preface.

• Author: Bopp, James, Jr.

The featured article, by legal scholar Gregory J. Roden, discusses the question whether unborn children are "persons" within the language and meaning of the Fifth and Fourteenth Amendments. Because there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," his examination is founded on the historical understanding and practice of the law, the structure of the Constitution, and the jurisprudence of the Supreme Court.

In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." The Supreme Court responded in its majority opinion that "[i]f this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." Unfortunately, the majority's legal analysis arrived at the opposite conclusion, "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." It is the majority's legal analysis that Mr. Roden examines in fine detail.

First, Mr. Roden points out that the Constitution does not confer upon the federal government the power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as holders of certain statutory and common law rights and duties...