COMMENTARY: Let Roe and Scott Each Stand on Their Own

c. 2007 Religion News Service (UNDATED) One hundred fifty years ago last week, the United States Supreme Court handed down what virtually all legal scholars agree was its worst decision in history: Dred Scott vs. Sandford. The reason for such widespread condemnation is easy to see; the court held that Scott, a slave, had no […]

c. 2007 Religion News Service

(UNDATED) One hundred fifty years ago last week, the United States Supreme Court handed down what virtually all legal scholars agree was its worst decision in history: Dred Scott vs. Sandford.

The reason for such widespread condemnation is easy to see; the court held that Scott, a slave, had no standing to sue in order to gain his freedom because slaves and their descendants were not intended to be included as “persons” within the Constitution’s protections. In order to deny Scott’s legal claim, the court denied his humanity.


It’s worth taking another look at Dred Scott, not just because of the way it shaped our history but also because of the way it may shape our Supreme Court’s future. The Roberts Court may be poised, in the next few years, to agree with the pro-life advocates who have argued for decades that Roe vs. Wade, the landmark decision recognizing a woman’s fundamental right to choose, belongs in the same category.

Was Roe vs. Wade, as some conservatives have argued, another Dred Scott?

Dred Scott was born into slavery in Virginia. He traveled with his owner to Illinois and the Wisconsin territory, where he was eligible to be declared free. When his owner returned to Missouri, a slave state, Scott challenged his status, claiming that he had been free while in the Northwest Territory and in Illinois, and that he could not be returned to bondage. The Missouri Supreme Court returned Scott to bondage.

“Am I not a man?” he is reported to have implored, as the shackles were once again clamped on his arms and legs. The U.S. Supreme Court gave him a breathtakingly simple answer: no.

The court rejected not only Scott’s legal claim but his humanity, stating infamously: “The question is simply this: Can a Negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States? … We think they are not, and that they are not included, and were not intended to be included under the word `citizens’ in the Constitution …”

By 1973, when Roe vs. Wade was decided, property rights were no longer invoked by the court as essential to preserving liberty. Instead, the court became increasingly drawn to the idea of a right of privacy, first formulated by Justice Louis Brandeis as “the right of property in its widest sense … embracing the right to an inviolate personality …”

The effect of the erosion of property rights was to narrow the protected radius of human liberty to the human personality. When Jane Roe challenged Texas’ law forbidding abortion, she claimed that her right of privacy outweighed any interest the state may have had in protecting unborn life.

The court agreed, rejecting Texas’ argument that “a new human life is present from the moment of conception.” As used in the Constitution, the court noted, “the use of the word (person) is such that it has application only postnatally … . None indicates, with any assurance, that it has any possible prenatal application.”


Thus, the court concluded, “the word `person’ as used in the Fourteenth amendment does not include the unborn.” In any event, the court stated, “we need not resolve the difficult question of when life begins.”

Instead, the court recognized a woman’s fundamental privacy right to bodily autonomy, but also acknowledged that the state’s interest in protecting potential life grew the closer a pregnancy came to term. In the first trimester, the state could advance no compelling interest. By the third trimester, however, as the fetus approached viability, the state’s authority to regulate the decision to terminate a pregnancy could override the privacy right. The competing interests must be weighed, the court held; there must be compromise.

At first glance, the analogy of Dred Scott to Roe vs. Wade, of slavery to abortion, is easy to see. Both Dred Scott and Roe vs. Wade involved the court in defining what a “person” is. In both cases, moreover, the claim of “personhood” was rejected when the court recognized the more fundamental right _ property in Dred Scott, privacy in Roe _ enjoyed by the opponent of personhood.

These similarities between the two cases serve only, however, to highlight their fundamental divergence. In its simplest terms that divergence is this: Dred Scott destroyed the Missouri Compromise; Roe vs. Wade sought to effect a compromise.

While it is possible to analogize a woman’s right to privacy with a slaveholder’s right to property, and Scott’s interest in personhood with that of a fetus, the analogy has force, ultimately, not from what was decided, but from what was at issue: the nature and limits of rights under our Constitution.

The Roe court did not, as the Dred Scott court had, view the property/privacy right as absolute; the Roe court did not, as the Dred Scott court had, prohibit the legislative branch from limiting the scope of the fundamental right. The Roe court recognized, in short, what the Dred Scott court refused to see: that no rights are absolute.


For that reason, President Bush’s reliance on the similarity between Dred Scott and Roe vs. Wade as a reason to urge reversal of Roe is misplaced. Dred Scott has earned its reputation as the worst Supreme Court decision. One hundred fifty years later, it deserves to stand alone.

(John Farmer Jr. wrote this article for The Star-Ledger of Newark, N.J. Farmer, a former New Jersey attorney general and special counsel to the 9/11 commission, teaches national security law at Rutgers University Law School.)

KRE/CM END FARMERJR

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