Dred Scott, Roe and the danger of a Court deciding who counts as a person

Nine lawyers in robes, sitting on the same Court that now meets beneath a marble pediment reading "Equal Justice Under Law," once announced that a whole class of human beings stood outside the Constitution's protection. It was not a rogue sheriff or a mob. It was the highest court in the land, in a reasoned opinion, with citations. That should keep every American awake at night, because the thing that makes such a ruling possible has never gone away: a court that believes it holds the power to say who counts.

This is a post about that power, and about the two occasions when the Supreme Court claimed it in a way the country later had to reverse. I will make an argument, and I will also tell you where the argument stops, because a comparison that overreaches is a comparison that loses.

The question every constitution must answer

Every legal order has to say who is inside it. Who is a person, who is a citizen, who may sue, who may be protected, who may be owned, who may be killed without a crime. The Founders knew this. The Declaration of Independence begins with a claim about the whole human family: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The rights come first. Government comes second, and it exists, the next sentence says, "to secure these rights."

Now notice what follows from that. If rights belong to a person because he is a human being, then no legislature and no court can create a person or abolish one. They can only recognize what is already there, or fail to. A government that decides who counts has quietly reversed the order of the Declaration. It has made rights a gift from the state, and a gift can be withdrawn.

Here is the argument of this post in four premises, stated plainly.

1. The Constitution protects persons, and the word "person" is not defined by the judges who happen to be sitting.
2. When a court has defined it narrowly, the narrow definition has twice been used to leave a vulnerable class without legal protection.
3. Both times, the correction came from the people, through constitutional amendment or through the elected branches, not from the court's own wisdom.
4. The safest home for the question of who counts is therefore the amendment process and the legislature, never a bare judicial declaration.

You may disagree with the conclusion. But to disagree honestly you have to deal with the history, so let us tell it.

Taney's 1857 opinion

Dred Scott v. Sandford was decided on March 6, 1857. Dred Scott was an enslaved man who had been taken by his owner into Illinois and into the Wisconsin Territory, free soil under the Northwest Ordinance and the Missouri Compromise. He sued for his freedom on the ground that residence there had made him free. The case reached the Supreme Court, and Chief Justice Roger Taney wrote for a majority of seven to two.

The Court said two things. First, that Scott could not sue in federal court at all, because no person descended from Africans brought to America as slaves could be a citizen of the United States within the meaning of the Constitution. Second, and this was unnecessary to the first holding, that Congress had no power to prohibit slavery in the territories, so the Missouri Compromise of 1820 had always been unconstitutional. Taney reached that second conclusion by treating enslaved people as property protected by the Fifth Amendment's Due Process Clause.

The sentence that has outlived the case is Taney's account of how the founding generation supposedly regarded Black Americans. He wrote that they had been regarded "as beings of an inferior order," and "so far inferior, that they had no rights which the white man was bound to respect." Taney offered this as history, not as his own preference. He claimed to be reading the original understanding, and that is exactly what makes the case a warning for originalists. A judge who says he is only reporting what the Framers thought can still be wrong, selective, and cruel.

He was also wrong on the record. Justice Benjamin Curtis, dissenting, pointed out that at the time the Constitution was ratified free Black men possessed the vote in five of the thirteen original states, which meant, in his reading, that they had been citizens of those states and had taken part in ratifying the Constitution. Curtis had the better of the history and the better of the text. Taney had the votes.

The key point for our purposes is the method. The Court took the most basic question in law, who is a person with rights, and decided it for the whole nation by judicial decree, on the theory that the question was closed and the Constitution had already answered it. No amendment was proposed. No bill was debated. Nine men said so.

Lincoln's answer

Abraham Lincoln did not respond by calling for the Court to be abolished, and he did not respond by ignoring it. His response is a model of constitutional seriousness, and we should study it. In Springfield on June 26, 1857, he said that he opposed the decision as a political rule for the future while accepting that it bound the parties to the case. A decision settles the dispute in front of the Court. It does not, he argued, fix the meaning of the Constitution for every later legislature and every later voter.

He also attacked Taney's history on its own terms. The Declaration's phrase "all men are created equal," he said, was not a statement that all men were equal in every attainment. It was a statement of the rights they were all entitled to claim. The authors, he argued, meant to set up a standard that a free people could keep approaching. That is a moral claim about persons, and it is exactly the claim Taney's opinion denied.

In his first inaugural address in 1861, Lincoln put the principle in terms every citizen can use. If the policy of the government on vital questions affecting the whole people were to be irrevocably fixed by decisions of the Supreme Court the instant they were made, then, he said, the people would have ceased to be their own rulers, having to that extent resigned their government into the hands of that eminent tribunal. He did not deny the Court its place. He denied it the last word on who belongs to the political community.

And then the people did what the Court could not. The Thirteenth Amendment, ratified in 1865, abolished slavery. The Civil Rights Act of 1866 declared that persons born in the United States were citizens. The Fourteenth Amendment, ratified in 1868, wrote the answer into the Constitution itself, reversing the core of Dred Scott on citizenship.

The word "person" in the Fourteenth Amendment

Here is the text, and I want you to read it slowly. Section 1 of the Fourteenth Amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Notice the two different words. Citizenship is for persons born or naturalized here. But the guarantees of due process and equal protection are given to "any person," not to any citizen. The framers of the amendment chose the broader word on purpose. A man does not have to be a citizen, or a voter, or a taxpayer, or a member of any favored class, to have his life protected by the law. He only has to be a person.

That is the constitutional answer to Taney, and it is a beautiful one. The Reconstruction Congress took the question "who counts?" away from a court that had answered it badly and put it in the text, in the widest language available.

This is why the word "person" matters so much in the argument that follows. The Fourteenth Amendment does not define it. It does not say "born" before "person" in the Due Process or Equal Protection Clauses, though it does say "born or naturalized" in the Citizenship Clause. Whether an unborn child is a "person" within the later clauses is a question the text leaves open. A fair reader has to admit that, and the history of the Roe decision shows why it matters.

Blackmun's personhood section in Roe

Roe v. Wade was decided on January 22, 1973, by a vote of seven to two, with Justice Harry Blackmun writing the opinion. Most people remember Roe for the right of privacy and the trimester framework. Fewer remember that Blackmun stopped to deal with the personhood question, because he saw that it was the hinge on which the whole case turned.

He wrote that if the suggestion of personhood for the unborn child were established, the case for abortion rights would collapse, because the child's right to life would then be guaranteed specifically by the Fourteenth Amendment. That is a remarkable admission. The author of the majority opinion told the country that his result depended entirely on the child not being a person under the Constitution.

He then examined the uses of the word "person" in the Constitution and concluded that it applied only postnatally, and that the word, as used in the Fourteenth Amendment, did not include the unborn. In the same opinion he declined to say when life begins. "We need not resolve the difficult question of when life begins," he wrote, noting that those trained in medicine, philosophy and theology could not reach any consensus.

Pause on how odd that combination is. The Court said it could not determine when life begins, and in the same breath it determined that the law did not recognize the unborn as persons. A court that says "we cannot answer the question of who is there" and then rules "so no one is there" has not escaped the power to decide who counts. It has used it, quietly, by default.

The legal consequence was that for nearly fifty years the personhood question was treated as closed. Legislatures could regulate the practice within the limits Roe and then Planned Parenthood v. Casey (1992) allowed. They could not treat the unborn child as a person with rights of his own. The question had been decided for them.

Dobbs gave the question back

On June 24, 2022, the Court decided Dobbs v. Jackson Women's Health Organization, overruling Roe and Casey. Justice Alito's opinion held that the Constitution does not confer a right to abortion, and that the authority to regulate it belongs to the people and their elected representatives.

Look at what Dobbs did and did not do. It did not declare that the unborn child is a person under the Fourteenth Amendment. It declared that the Court's earlier decisions had wrongly taken the question away from the political process. That is the structural point, and it is the point I would press on every reader. The case did not hand one side a victory by judicial decree. It took the decree away. Whatever you think of the result, the method moves the question of who counts out of the courtroom and into the legislature, the ballot box and the amendment process, which is where Lincoln and the Reconstruction Congress put it.

If you want the legal history behind that holding, read From Bracton to 1868, the legal history Dobbs put back on the record, and for the full sequence of rulings between Roe and Dobbs see Fifty years from Roe to Dobbs in twenty dated turns of the law.

The differences, stated honestly

Now the part many partisans skip. The two cases are not the same, and I do not think the argument improves by pretending they are. Let me state the differences the way an opponent would want them stated.

First, the subjects. Dred Scott was a grown man, a member of a recognizable community, who spoke in court and sued in his own name. The child in the womb is a human being at an earlier stage, with a different relationship to the mother. The mother's body is involved in a way that has no parallel in the law of slavery. That is why the strongest pro-choice writers argue that bodily autonomy, not personhood, is the heart of the matter, and why even many who accept the child's humanity disagree about what the law should require of a woman. That argument deserves a serious answer, not a sneer.

Second, the holdings. Taney held that a class of persons was constitutionally excluded and that their owners had a constitutional right to hold them. Roe rested on a right of privacy and a balance of interests, and in the personhood passage it said, in effect, that the word had not historically covered the unborn. The mechanisms are different. A critic of the comparison can say, fairly, that Roe did not hold anyone to be property.

Third, the moral stakes in the eyes of the public. After Dred Scott, a majority of the country in the free states came to see the decision as a moral outrage, and a war and three amendments followed. After Roe, the country has remained deeply divided, and the divisions run through families, churches and parties. Whether that division means the public has not made up its mind, or has made up its mind in two directions, is a political fact, not a constitutional one.

Fourth, the justices. Blackmun said he was declining to decide when life begins. Taney claimed to be reporting settled history. They differ in candor.

I accept all four differences. What survives them is narrower than the slogan, and I think it is stronger.

What survives the differences

Here is what remains once the differences are admitted.

1. The structural error is the same. In both cases the Court took a contested question about who the law protects and answered it for the whole nation by judicial declaration. The identity of the people affected is different. The act of closing the question is the same.
2. The correction came the same way. Neither case was undone because the justices had a change of heart in the abstract. Dred Scott was undone by the Thirteenth and Fourteenth Amendments. Roe was undone after fifty years of argument, litigation, and changes in the membership of the Court, which is itself a political process, since the President nominates and the Senate confirms.
3. Both rest on a claim about the definition of "person." In Dred Scott it was explicit. In Roe the personhood passage was the hinge.
4. A free people should be uncomfortable with any court that holds the keys to the definition. That is true whichever way the court uses them. If you cheer when the Court draws the circle your way, you have no standing to complain when it draws the circle against you next time.

Point four is the one I would put on the wall. Conservatives who believe in limited judicial power have to believe it on the days it is inconvenient. The same principle that says Roe was wrong to settle abortion by decree says that a future Court should not settle personhood by decree in the other direction. If the Fourteenth Amendment is to be read as protecting the unborn, the proper route, many scholars argue, is through legislation under Section 5 or an amendment, with the political accountability that comes with it. That is a live dispute inside the pro-life movement, and After Dobbs, should pro-lifers seek a national law or win state by state? takes it up.

The strongest objection, answered

The best objection goes like this. "You are using a comparison to slavery to win a rhetorical point. Slavery was an institution of ownership and terror. Abortion is a medical decision made by women, often in hard circumstances. The comparison is offensive, and it ignores the real differences you just conceded."

Here is my answer, in order.

One. I did not say the two practices are morally identical, and I would not say so. The comparison I am making is about method and structure, not about the moral weight of each act. A court that closes a question about who counts is doing something dangerous whatever the question is.

Two. Calling a comparison offensive does not refute it. If the structural point is wrong, show where. The Court did define "person" narrowly in 1857. The Court did, in 1973, say the Fourteenth Amendment's "person" did not include the unborn. Those are facts about the opinions, not rhetoric.

Three. The objection concedes my main practical claim. If this is a hard question on which reasonable people differ, and the objector says it is, then it belongs to the people and their legislatures, not to nine justices. The objector's own premise is an argument for Dobbs.

Four. The women facing hard circumstances are real, and the law should treat them with compassion, with support, with practical help. A conservative who wants the unborn protected and wants nothing for the mother has an incomplete moral position. The answer to a hard situation is more help, not fewer persons.

That is the whole reply. It leaves the moral question where it belongs, in the hands of the citizens who will argue it.

What the Founding teaches

The lesson of the Dred Scott episode is not "trust the Court" and it is not "never trust the Court." It is that a free people must keep this question in its own hands. Judges can be wise, and judges can be Taney. The Constitution's own answer, Article V, is the amendment process, in which two-thirds of Congress and three-fourths of the states must agree. That is slow, and the slowness is the point. When we are deciding who counts, we ought to be slow, and we ought to be accountable.

You can read the Fourteenth Amendment in full on the Constitution page, and Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read makes the broader case about judicial supremacy.

The case in brief

1. Every legal order decides who counts as a person, and the Declaration says rights come from the Creator, not from the state or from the bench.
2. In Dred Scott (1857) the Court defined a class of human beings out of the Constitution's protection, and the country corrected it through the Thirteenth and Fourteenth Amendments, which use the broad word "person."
3. In Roe (1973) Justice Blackmun admitted the case would collapse if the unborn were persons, declined to say when life begins, and held that the Fourteenth Amendment's "person" did not include them.
4. The cases differ in subject, in holding and in the role of the mother's body, and honest advocates say so, but the structural danger of a court closing the question is the same.
5. Dobbs (2022) returned the question to the people and their legislatures, which is the right home for it whichever way you hope it is answered.

What you can do: read Section 1 of the Fourteenth Amendment aloud with your family, then look up your own state legislature's website and see which bills about the protection of human life are before it this session.