Dred Scott, Abortion, and American Legal History

By Jesse Sumpter

Today is the anniversary of the infamous Supreme Court case, Dred Scott v. Sanford, which was decided on March 6, 1857, ruling that a black man had no rights under the US Constitution. The majority ruling in this decision was overwhelming: 7-2.

Chief Justice Roger B. Taney who wrote the majority ruling tried to explain the decision this way: “Negroes had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

While today we are aghast at the words of this ruling, it is not enough to feel that this ruling is wrong. Rather, we must reflect on the decision and understand the reasons why it was wrong. As we do that analysis, we should consider the question of how we know when the Supreme Court is wrong. As we consider that question, it should lead us to see the larger reality above and beyond the Supreme Court. Science and history stand over the Supreme Court and above those stands the living God, the ultimate judge in all matters. So while Scotus might try to rewrite laws to make morality conform to the whims and feelings of man, there is a high reality that Scotus has to answer to and we should understand all the facets of that reality in order to understand how we can work to reverse terrible rulings by the Supreme Court.

Can Scotus be Wrong?

In answering this question, there are two standards that we should consider. The first standard to consider is general revelation, that is, the way God has made the world. There are several avenues to pursue in this line of investigation but I will focus on one: American history.

In this particular ruling of the Dred Scott case, Chief Justice Taney claimed that black people have never had political relations with white people in America and that black people have always been considered inferior in this nation. But is that true in American history? Did America as a nation never recognize the rights of black people?

Justices Curtis and McLean, the two dissenting judges in the case, pointed out that free black men actually had rights in several states at the time of the Constitution in 1789. These Justices reported that black men had rights to vote, own property, make contracts, and seek redress in court. Historian James McPherson adds, “In five of the thirteen states that rectified the Constitution black men were legal voters and participated in the ratification process.”[1] Even at the time of the Dred Scott ruling, many states had given black people freedom and acknowledged they had rights in those states under the Constitution. This is the very basis of Scott’s appeal to the Supreme Court: he was moved to a state which recognized black men as having freedom and rights under the state law therefore he sought to have these rights recognized for himself according to the Constitution.

Given the historical evidence, it becomes clear that Scotus made its decision against many examples of black people having rights in American law. Now this was not a uniform position in the country so there were holes in the legal situation at the time, which is why Scotus had to address this issue. But the majority claim of Chief Justice Taney that black people “had no rights which the white man was bound to respect” was a false claim and can be proven wrong based on history.

The other way to evaluate the Supreme Court is to look to biblical standards. While this is the more important standard of appeal, it does not abrogate the historical record but rather reinforces and supports what we find in American history.

An important side note to make here is that we should never evaluate Scotus solely based on history (or any general revelation). If we only look back at what people where doing in history, then we can end up in some pretty evil situations because there were many terrible things that happened in history. We must evaluate the past by the light of Scripture and where the past is wrong we must reject it but where it is right it should be upheld because it conforms to the universal standard of God’s word.

Given this principle, we see that the Bible teaches all men are created in the image of God and as such they deserve to be treated justly before the law. Paul in Acts declares, “And He has made from one blood every nation of men to dwell on all the face of the earth” (Acts 17:26). In Romans, Paul also teaches that authorities are appointed by God and they must answer to His law. We, as citizens, must submit to these authorities because God commands it. Paul specifically says that the ruler “is God’s minister, an avenger to execute wrath on him who practices evil” (Rom. 13:4). This means that the governing authority needs to make judgments based on the categories of good and evil and not based on skin color or man’s opinion or whims. To judge a person by any other category is to judge in a way that perverts justice. Given this teaching, we can see that Scotus in the Dred Scott case denied the image of God in a black man and by that denial refused to acknowledge the rights that God has given to each person.

Dred Scott Today

As we reflect on the anniversary of the Dred Scott case, we should see parallels to the appalling decision of the Supreme Court in Roe v. Wade in 1973 and we should apply the above discussion to that egregious ruling.

The biblical case for outlawing abortion is clear: do not murder (Deut 5:17). That applies to all human life. We know human life starts at conception. There is clear evidence in the Bible that testify to the reality of personhood in the womb before birth: “you formed me in my mother’s womb”(Ps 139:13), John the Baptist in the womb recognizing Jesus also in the womb (Luke 1:44), etc. The biblical evidence is strong there.

But what about American history on this issue? Has America always allowed abortion?

One excellent resource for the history of abortion laws in America is Josh Craddock’s law article “Protecting Prenatal Persons.” It gives a good overview of the history of rights for prenatal human life in various states prior to Roe v. Wade.

One of the central elements that Craddock puts forth is the strong precedent in legal history of recognizing prenatal persons as having full human rights. When the fourteenth amendment was adopted in 1868 nearly every state had laws outlawing abortion. Twenty three states refer to the unborn child as a person. The Pennsylvania Supreme Court ruling in 1850 said, “the moment the womb is instinct with embryo life, and gestation has begun, the crime of [abortion] may be perpetrated.”[2]

In 1867, Ohio legislature reported that “no opinion could be more erroneous” than to think “that to destroy the embryo before that period [of quickening] is not child‐murder.”[3] They further declared: “Let it be proclaimed to the world, and let it be impressed upon the conscience of every woman in the land ‘that the willful killing of a human being, at any stage of its existence, is murder.”[4] The bill passed both houses of the Ohio legislature by April 1867.[5]

These are just a couple of the historical records that Craddock gives in his work on the issue of abortion in US Legal history. This article is a must read as we consider this issue in the history of American law.

From this history we should conclude a couple of things. First, abortion as murder is the historical American position. It has only been since Roe v. Wade in 1973 that American law turned on that position, but the overwhelming precedent is that America has seen an unborn child as a person. Second, we should study the history of these laws and consider what they might offer us as we look to end abortion. There is much information here that would help a state outlaw abortion.

Last, this history helps us see another way that the Supreme Court is wrong. Scotus is not just violating what God has revealed in His word; the high court is also violating the history of American law. As Scotus did in Dred Scott, so it did with Roe v. Wade: Scotus is out of line with American history. This leads to a final thought: in working to overturn Roe v. Wade, we are not trying to do something that is contrary to American history. Overturning Roe v. Wade is not radical or revolutionary or impossible. Rather, we are seeking to restore American law to its previous position, to its true position. Clearly, history is on our side in this matter; Scotus has no foundation for its unhistorical and immoral ruling.

Image by wjlaser48 on Pixabay

[1] Battle Cry of Freedom, James McPherson, p. 175.

[2] Protecting Prenatal Persons, Joshua Craddock, p. 555.

[3] Craddock, p. 558.

[4] Craddock, p. 558.

[5] Craddock, p. 558.