For years I have been fascinated by the similarities between the Supreme Court decisions in the 1857 Dred Scott case involving slavery and the 1973 Roe v. Wade case involving abortion rights. My interest to date has been more about the cultural similarities rather than those involving legal and constitutional principles, because I have felt and said a number of times that in many ways, Roe v. Wade is “our Dred Scott” in terms of the political and culture clashes that they both produced.
Now comes a book that brings the similarities to light in a very instructive analysis. Slavery, Abortion, and the Politics of Constitutional Meaning, by Justin Buckley Dyer provides a scholarly treatment of the parallels between slavery and abortion in American constitutional development and he comprehensively explains how slavery and abortion are historically, philosophically, and legally entangled. And the analogies extend to current considerations of the constitutional principles driving recent Supreme Court decisions, highlighted by extensive analysis of the origin and history of the concept of “substantive due process”, a controversial principle which allows federal courts to protect certain rights from governmental interference under the due process clauses of the Fifth and Fourteenth Amendments to the Constitution. A very enlightening read.