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Dred Scott, Roe v. Wade, and state's rights

By Robert S. Sargent Jr.
web posted July 21, 2003

(This article is dedicated to my liberal friends who argue for a strong central government where laws are initiated at the federal level rather than the state level. It is a "Constitutional-conservative" [con-con] argument that an original and strict application of the Constitution is best for everyone, even liberals.)

Dred Scott

A little history: Dred Scott, who was a slave in Missouri, was taken by his owner in 1836 to Fort Snelling, which was in the free portion of the Louisiana Territory. When his owner died, Dred Scott sued for his freedom on the grounds that when he was taken into a place that outlawed slavery, he had become free. His argument was rejected in the Missouri courts, but when his new owner turned his title over to a John Sanford who lived in New York, Dred Scott felt that he could sue in Federal court because his new owner was in a different state. (The Constitution in Article III, Section 2 says of the Supreme Court "The judicial power shall extend to all cases…between citizens of different states.")

The Supreme Court heard the case (Dred Scott v. Sandford) in 1857, and the Chief Justice of the Supreme Court was Roger Taney, who wrote the majority opinion. He addressed the jurisdiction of the United States Courts (as opposed to state courts): "…if the plaintiff (Scott) claims a right to sue in a Circuit Court of the United States, under the provision of the Constitution which gives jurisdiction in controversies between citizens of different states, he must distinctly aver in his pleading that they are citizens of different states…," and since Scott was a slave in Missouri, Taney and the court could have simply found that Scott was considered property and not a citizen of the United States, and therefore, did not have a right to sue in federal court. End of story. At that time it would have been a proper finding, but Taney had other things in mind.

Taney wrote: "…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, and as such become entitled to all the rights…guaranteed by that instrument…?" There are 17 pages where Taney shows that Negroes were not considered citizens at the time the Constitution was written (he quotes various statutes of the U.S. Congress, and the different states; he quotes the Declaration of Independence, which is not a legal document, he quotes from the Articles of Confederation, which was no longer a legal document, and so on), and by some twisted logic, he concludes that the ancestors of African slaves are not citizens of the United States even if they had been freed by the states! To support this weird theory, Justice Taney refers again and again to the two clauses in the Constitution that refer to slavery: Article I, Section 9, which says that the importation of slaves must cease in 1808, and Article IV, Section 2, which says that slaves who escape from one state must be delivered back to the owner. Even though the Constitution nowhere speaks of race, nor does it speak of ancestors, Taney says, "…certainly these two clauses were not intended to confer on them (slaves) or their posterity the blessings of liberty…"

Taney addresses the argument that Scott made about being taken into the free portion of the Louisiana Territory: "The act of Congress, upon which the plaintiff relies (known to us as the Missouri Compromise), declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution…" Of course, Article IV, Sec. 3 says: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Taney brushes this off by stating that only the states have the right to outlaw slavery, ignoring Congress's power in the territories. Somehow the "right" to own slaves cannot be infringed upon by the U.S. Congress, and according to Taney, by outlawing slavery, Congress had deprived slaveholders of their property without a fair trial. In a 5-4 ruling, the Taney Court voided the Missouri Compromise.

What is the significance for us, today? After the Civil War, the 13th Amendment, which freed the slaves, and the 14th Amendment, which made them citizens, were passed to correct Taney's Supreme Court decision. Consider Roe v. Wade: to liberals, a great victory. Before 1972, abortion was a policy matter decided by states. After 1972, when Roe v. Wade was decided, abortion became a federal matter. Now that abortion is a federal matter, two things might happen. It could be "corrected" by an Amendment to the Constitution, or a majority of Justices could "find" rights of fetuses in the Constitution, just as a right to have an abortion in the first trimester was "found" in 1972. In both cases, the pro-life statute that would result would be the law in all 50 states.

As public sentiment is becoming more and more pro-life, a change in abortion law at the federal level becomes more and more plausible. Before 1972, it was almost guaranteed that some states would have legalized abortion, available to anybody in the country, regardless of national sentiment. Liberals should defend that "states rights" scenario over the possibility of a pro-life law that applies to everyone in the country. We, who defend "state's rights," or the 10th Amendment, are defending the right of the various states to a wide and diverse mix of policies, some liberal, and some conservative. We would rather have some states have policies that we disagree with than have every state forced to conform to a single federal code. I would argue that liberals who champion a single federal code could well find their liberal ideas outlawed at the federal level sometime in the future.

Dred Scott shows us two things: The mischief that "activist" judges always do, and the fact that people are sometimes willing to resort to a Constitutional amendment to overturn a Supreme Court ruling. If that happens with abortion, liberals will rue the day they championed Roe v. Wade. They will wish for judges that apply the law, and for the right of states to have policy decided democratically by their legislatures. At that time it will be too late.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and he can be reached at rssjr@citcom.net.

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