In the Christmas Sunday New York Times Magazine, historian David Blight has a long essay ruminating on whether the circumstances that gave rise to the Civil War bear any resemblance to our own situation today. It’s a constant temptation—and a frequent pitfall—for historians to engage in such discussions, since they usually have a much clearer view of the past than of the present. And Blight is no exception. His essay is quite instructive on the 1850s, and pretty vacuous when it comes to the 2020s.
Worst of all is his closing comparison of this year’s Dobbs v. Jackson Women’s Health Organization (overturning 1973’s Roe v. Wade) to the Supreme Court’s 1857 decision in Dred Scott v. Sandford. The best he can do is the vague claim that each decision “draws on history as a means of arresting certain developments in society.”
That doesn’t describe Dobbs at all—but it rather precisely describes Roe v. Wade, which ever since it was decided has been justly compared to Dred Scott. Consider:
Both Dred Scott and Roe declared laws unconstitutional, putting barriers in the path of whole categories of potential future legislation. Dobbs knocked down such barriers by freeing legislatures to pass laws regulating or prohibiting abortion once again.
Both Dred Scott and Roe relied on distorted and even downright falsified historical claims about the status of the legal practices and principles in each case. The Dobbs opinion of Justice Samuel Alito set the historical record straight.
Dred Scott was the first case in which the constitutional absurdity of “substantive due process” was fashioned to give legal cover to a political agenda legislated by activist judges. Roe was the twentieth century’s most ghastly reprise of that same illegitimate doctrine.
Dred Scott held that a whole class of human beings—members of the African race—had “no rights” anyone else was “bound to respect.” Roe deprived a whole class of human beings—the unborn—of the law’s protection of their right to live at all.
Dred Scott became a defining element of conflict between the country’s two parties, and by ruling all federal legislation unconstitutional that prohibited slavery in the territories, substantially declared the new Republican Party the enemy of the Constitution, and prompted the Democratic Party to espouse judicial supremacy—the idea that the test of one’s allegiance to the Constitution was one’s acceptance of the Supreme Court’s “settlement” of a hot-button issue. Similarly, Roe v. Wade had a sorting effect on our two parties, ultimately producing the unhealthy situation in which it was impossible to remain a Democrat and oppose Roe’s abortion regime, just as it was impossible to be an anti-slavery Democrat in 1860. Democrats once again became the party of judicial supremacy after Roe—and even now, after Dobbs, find it difficult to resist the reflex. Republicans, in the 1980s as in the 1850s, had to develop the intellectual resources to defend the Constitution from the Supreme Court—and ultimately rescued it with the Dobbs decision.
With the illegitimate barriers of Roe swept away, democratic decision-making on abortion can proceed unimpeded by judges—as should have been the case for slavery in 1857 as well.
Otherwise, I suppose, Blight’s comparison is just fine.