Animal, Vegetable, Mineral

How Dred Scott came back to rescue Terri Schiavo

When Chief Justice Roger Taney wrote the majority opinion in the 1857 case Dred Scott vs. John F.A. Sandford, did he suspect that one day his commentary would be held up by his countrymen, his fellow conservatives, even his co-religionists, as the model of a bad court ruling? With the fight over Terri Schiavo having shed its various moral, scientific and federalist side debates to become a perverse race-against-time narrative, this is a good moment to marvel at how the seemingly strained Dred Scott analogy has worked wonders for the pro-life movement.

Outside the hardcore cadre of abortion foes, most Americans learned about the unexpected contemporary meaning of the Taney court's most famous decision when President Bush referred to it in his second debate with John Kerry. Asked about his potential Supreme Court picks, Bush provided two examples of judges he would not pick, the first being anybody who would try to exclude the words "under God" from the Pledge of Allegiance. The second example was more puzzling:

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all—you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year—the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

Thank you.

Seemingly a non sequitur in an election year that saw few, if any, Americans suing for their emancipation on the grounds of having spent time in the non-slave territories of Illinois and Wisconsin, the Dred Scott allusion turned out to have a distinguished pro-life pedigree. (In this article, I am using the phrase "pro-life" in both its catholic and Catholic senses, to indicate the movements against euthanasia, physician assisted suicide, etc., rather than merely the anti-abortion movement.) Among abortion foes, Dred Scott is popularly analogized to another despised court decision, Roe v. Wade. Here's a characteristic comparison from the National Right to Life Committee:

The reasoning in Dred Scott and Roe v. Wade is nearly identical. In both cases the Court stripped all rights from a class of human beings and reduced them to nothing more than the property of others. Compare the arguments the Court used to justify slavery and abortion. Clearly, in the Court's eyes, unborn children are now the same "beings of an inferior order" that the justices considered Blacks to be over a century ago.

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The words "citizens" or "persons" used in the Constitution were never intended to include Blacks/unborn children.

In the Dred Scott case of 1857 the Supreme Court said:

"… a negro, whose ancestors were imported into this country, and sold as slaves…were not intended to be included under the word 'citizens' in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."

In the Roe v. Wade case of 1973 the Supreme Court said:

"The word 'person,' as used in the Fourteenth Amendment, does not include the unborn…. [T]he unborn have never been recognized in the law as persons in the whole sense."

It must be said that neither President Bush's description nor NRLC's cherry-picked citations do anything like full justice to the actual Dred Scott decision, which measures a stunning 111,326 words. But from unpromising stuff, Dred Scott has yielded surprising argumentative value.

Abortion opponents struggle, with unencouraging results, to persuade the general public of their own definitions of human life. Disabled, unborn, vegetative, incapacitated—none of these adjectives should have the power to render a person a non-entity. This argument still finds few takers among the stubbornly pro–death American people. A slim but stable majority remains in favor of abortion rights, a dramatically rising majority supports euthanasia, and even the embattled death penalty only occasionally falls below 50-percent approval. In public opinion polls related to the Schiavo case, substantial majorities say they favor pulling the plug in both the abstract and the specific.

But the rhetorical power of Dred Scott is that it recasts the players in the debate. People who favor legal abortion or termination of hopeless patients must now prove that they are not in the same league with 19th-century defenders of slavery. Look again at the President's argument, and NRLC's. The idea that an abstract notion of property rights justifies the destruction of a human life is offensive to any right-thinking person. But then, Roe's notion of privacy rights is no less abstract. The creepy allusions to defining persons (and by obvious extension) non-persons, merely for the convenience of a planter or a careless woman, is the most dramatic possible example of a wholly materialist, secular modernity, unmoored from any sense of religious, or even humanist, decency.

Taney's actual Dred Scott argument does not really support this view. If anything, Taney, buttressing his case with quotations from Natural Law thinkers like Emmerich de Vattel and Chancellor James Kent (frequently cited with approval by traditionalists for invoking "the law of nature, and the institutions of Heaven"), makes an argument that is anything but a technocratic decision from the "imperial judiciary" Robert Bork denounced. Nor can so-called originalists find much to object to technically in the Dred Scott reasoning; vast tracts of the document are devoted to aligning the decision with the original intent of the Constitution.

There are also generous portions of Founding-Father hagiography: Taney briefly considers the possibility that the framers of the Declaration of Independence may simply have erred in defining the rights of "all men" while not considering that "all men" must include blacks, but ultimately decides "all men" was specifically meant to exclude blacks. His reasoning here is that the founders "were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting."

At another point, Taney considers the argument of a British jurist who found slavery to be "so odious, that nothing can be suffered to support it but positive law," but replies:

To the position, that slavery can only exist except under the authority of law, it is objected, that in few if in any instances has it been established by statutory enactment.

This is an argument for a natural aristocracy, very far removed from the sort of strictly secular, mechanistic, or post-modern reasoning Roe v. Wade opponents deplore.

None of which is meant to suggest that Taney's Dred Scott argument has some unsavory connection with contemporary originalists or natural law advocates (or, for that matter, with contemporary supporters of abortion rights). Finding points of correspondence in disparate legal decisions is an easy game; you could spend countless hours demonstrating that Marbury v. Madison is actually analogous to Plessy v. Ferguson or that Korematsu v. United States is just Murray v. Curlett by another name.

Dred Scott's value to pro-lifers is entirely extra-legal. That doesn't make it any less effective or compelling. Many of us treasured this weekend's interference in the Schiavo affair by President Bush and the U.S. Congress as yet another gotcha moment demonstrating (A-ha!) that Republicans are not actually committed to limited government or separation of powers. The obvious response to this is, Who cares? Why this persnickety attachment to some abstract principle when there's a life at stake?

The argument gets even more pointed with the Roe analogy. Whatever the merits or demerits of its legal reasoning, Roe v. Wade is hardly a model of federalism. But in exchange for the decision's novel definition of privacy rights, abortion advocates were happy to see its federal usurpation of state authority on reproductive rights. So what is the abstract principle that makes the state of Florida a more legitimate authority over the Schiavo case than Washington D.C.? Why is such a wealth of legal power, flackery, and selective attachment to states' rights being spent just to kill one woman?

The ultimate power of the Dred Scott analogy, of course, is in its historical matter. Four years after the decision was handed down, the United States entered into what remains its bloodiest war, which ended with an unprecedented burgeoning of federal power and the discrediting of the very term "states' rights." Outside the select company of federalist sophists and Civil War revisionists, few now make the argument that slavery would have been better left to be sorted out by the courts (Taney himself was an advocate of the "gradual" elimination of slavery in the United States) or allowed to die out on a state-by-state basis. Who is so confident that federal separation of powers serves us any better today, just because our definition of who is a "person" seems a little more up-to-date than Justice Taney's?

The case of Schiavo (which means "slave" in Italian) may seem an odd place to start picking up the thread of long-discredited court decisions. But Dred Scott's strange imaginative career should indicate how serious pro-lifers are in their beliefs, and suggest that, whether Terri Schiavo survives this week or not, arguments like this one will not go away.