Constitutional Confusion: Slavery, Abortion, and Substantive Constitutional Analysis

• Author: Justin Buckley Dyer
• DOI: http://doi.org/10.1111/ajes.12172
• Published date: 01 January 2017
• Date: 01 January 2017

Constitutional Confusion: Slavery, Abortion,

and Substantive Constitutional Analysis

By JUSTIN BUCKLEY DYER

ABSTRACT. A comparison of two U.S. Supreme Court cases about

fundamental rights, one on slavery, the other on abortion, sheds light on

constitutional law and the principles undergirding liberal constitutional

democracy. The Dred Scott case in 1857 denied constitutional rights to

enslaved Africans and their descendants living in the United States. The

Roe v. Wade decision in 1973 created a constitutional right to abortion

that denied constitutional personhood to human beings prior to birth.

Both cases involved applications of what legal scholars call “substantive

due process”—that is, a substantive interpretation of the constitutional

requirement that governments provide persons with “due process of

law” that moves beyond procedural formalism. Although many

constitutional scholars deny the legitimacy of substantive due process as

a legal doctrine, this article proposes that the judicial system cannot

ultimately avoid substantive moral questions in constitutional

interpretation. In both cases examined here, the crucial question was

about who counts as part of the people whom the Constitution protects,

and that question could not be answered in purely formal terms. Both

Dred Scott and Roe v. Wade erred not by engaging substantive moral

questions but rather by denying, in different ways, the natural rights of

human persons.

Introduction

Nearly four and half decades after the Supreme Court’s decision in Roe v.

Wade (1973), the issue of abortion remains politically divisive and moral-

ly contentious. On one side are those who contend that the rights of an

*Justin Buckley Dyer is associate professor of political science and director of the

Kinder Institute on Constitutional Democracy at the University of Missouri. He has

broad research and teaching interests in U.S. constitutionalism and political thought.

Parts of this article were adapted from his book Slavery, Abortion, and the Politics of

Constitutional Meaning (Cambridge University Press, 2013).

American Journal of Economics and Sociology, Vol. 76, No. 1 (January, 2017).

DOI: 10.1111/ajes.12172

V

C2017 American Journal of Economics and Sociology, Inc.

individual person are harmed irreparably when we permit the killing of

unborn human beings without due process of law. On the other side are

those who insist that a woman carrying a child has a right to terminate

her pregnancy at will, and that this right is foundational to women’s

political and social equality. Many other Americans are somewhere in

the middle, seeing legal and moral shades of gray in the abortion debate.

Some light can be shed on the contested issue of abortion by turning

to an analogous legal and moral issue about which there seems to be

some clarity today: slavery. The case of Dred Scott v. Sandford (1857)

implicates several strikingly similar questions to those engaged by the

Supreme Court in Roe v. Wade (1973). Each case brings to the surface

important moral and legal questions about personhood, natural rights,

and the principles undergirding liberalconstitutional democracy.

The Comparison with Slavery

Competing Analogies

Pro-life advocates assert that the U.S. Supreme Court made a terrible

error in the decisi on in Roe v. Wade (1973) when it held that the Four-

teenth Amendment’s Due Process Clause protects a constitutional right

to abortion. They frequently compare thismistake to another case, Dred

Scott v. Sandford (1857),in which the Supreme Courtheld that the Fifth

Amendment’s Due Process Clause protected a constitutional right to

traffic in slave property in the federal territories. In retrospect, the Dred

Scott case is viewed almost universally as a flawed decision. Pro-life

advocates note that Roe was like Dred Scott in that each employed the

doctrine of substantive due process to remove a contested moral issue

from the arena of legislative politics. If the Supreme Court could make

an error of that magnitude in 1857, they ask, why should one accept a

flawed decision of equalor greater magnitude in 1973? Pro-choice advo-

cates, on the other side, make reference to the terrors of slavery and

compare them to the conditions women with unwanted pregnancies

faced when most abortions were illegal in the United States. According

to this logic, the forced laborof slavery is analogous to the forced moth-

erhood imposed by lawsthat deny access to abortion.

Although both sets of analogies are tenuous, there is a historical con-

nection between slavery and abortion. Both issues are bound up with

The American Journal of Economics and Sociology34

the meaning and legacy of the Fourteenth Amendment, which was rati-

fied in 1868 to protect the rights of freed slaves and that now serves as

the main pillar of the Supreme Court’s abortion jurisprudence. In the

intervening decades between the Civil War and the present, one of the

most important changes that took placein legal theory was the rejection

of the natural-law tradition, which had provided the theoretical basis

for both the Fourteenth Amendment and state anti-abortion laws, many

of which were written during the Civil War and Reconstruction eras. It

was the rejection of this tradition that enabled the Supreme Court to

create abortion rightsin the late 20

th

century.

Substantive Due Process

The legal doctrine of “substantive due process” provides a point of ref-

erence that connects the Supreme Court’s adjudication of cases involv-

ing both slavery and abortion. According to that legal doctrine, the

Constitution’s Due Process Clauses impose substantive (and not merely

procedural) limits on government action. The Fifth Amendment applies

to the federal government, and the Fourteenth Amendment, ratified

after the U.S. Civil War, applies to state governments. Due process

refers, in its focal sense, to the procedures public officials must follow

when adopting and enforcing laws and regulations. Courts in the Unit-

ed States often must decide whether laws (on their face or in their

application) violate proceduralprotections for those accused of a crime.

For example, the state through statutory enactment or enforcement

might deprive an individual of his or her constitutional right to confront

witnesses, enjoy trial by jury, access legal counsel, and so on.

A legitimate law, along these lines, is one that has been duly enacted

or ratified and that specifies the procedures by which a person may be

fined, imprisoned,taxed, or regulated. Substantivedue process, howev-

er, is different. There are some fundamental individual rights, the

Supreme Court has held, that impose limits on government action irre-

spective of whether procedural norms are followed and regardless of

whether these fundamental rights are specifically mentioned in the

Constitution. Historically, the Supreme Court has included among these

fundamental rights such things as the right to contract for labor and the

right to control the education of one’s children. There have been a

Constitutional Confusion 35