On the analogy between the debates about slavery and abortion in America

Over at Public Discourse, Nathaniel Peters offers a review of Justin Buckley Dyer’s analysis on Slavery, Abortion, and the Politics of Constitutional Meaning. It’s a deep dive into the way that the analogy between slavery and abortion plays out in American public discourse and scholarly debates.

All readers will benefit from Dyer’s account of the ways in which the logic of abortion depended on history to justify Roe v. Wade and subsequent court decisions. As Dyer vividly demonstrates, some of that history was dramatically misused.

For example, on Dred Scott:

Dyer is at his most original and scholarly in his contribution to the debate over substantive due process and abortion. The Fifth Amendment prohibits the federal government from depriving any person of “life, liberty, or property without due process of law.” In Dred Scott, the Supreme Court ruled that a legislative act barring slavery from federal territories “could hardly be dignified with the name due process of law.” In other words, the Court viewed the prohibition of slavery as so patently unjust that, to the justices, it clearly fell outside the scope of the due process of the law. […]

But, Dyer argues, contemporary opponents of Dred Scott criticized the decision for its view of slaves as property, not its substantive view of due process. For them, natural rights to life, liberty, and property provided the substance that could not be violated by the due process of the law. […]

Here, Dyer concludes, we see the real parallel between Dred Scott and Roe: In both cases, “the Court treated biological human status as irrelevant to the question of constitutional personhood while constructing a legal community of constitutional persons that did not necessarily overlap with the population of natural persons.”

If you’re interested in this sort of thing, the review goes into far more detail.

A good take-away:

Abolitionism provides the example for how to fight for a cause: underscore the humanity of those whose humanity is denied, provide compassionate care for those affected, name the lies that dehumanize and kill, and tirelessly argue for the truth about “who counts.”

Sometimes, the most important lessons take the longest to learn.

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