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From the Missouri Compromise to Dred Scott . . .
. . . to Dobbs?
In 1820 Congress approved the Missouri Compromise, granting slavery a future in the southern part of the Louisiana Purchase but proclaiming the northern part forever free. Southern slaveholders grumbled at this slight to their peculiar institution, and Northern opponents of slavery objected to the fact that it was being allowed to spread at all. But both sides accepted the bargain as a manifestation of the principle that in a democracy no one gets to claim a monopoly on truth and no party or section receives everything it wants.
Complaints against the Missouri Compromise surfaced during the following decades. Southerners claimed they had been betrayed by one of their own, Kentuckian Henry Clay. Increasingly vocal Northern abolitionists declared any concession of territory to slavery to be a deal with the devil.
But the compromise held until 1854, when Democrat Stephen Douglas of Illinois, eager to burnish his presidential prospects in the South, engineered the Kansas-Nebraska Act, which repealed the Missouri Compromise and thereby opened to slavery the territories of Kansas and Nebraska, in the part of the Louisiana Purchase previously off-limits to slavery.
Douglas had guessed the repeal would cause trouble. Three-and-a-half decades of settled law on slavery, the most explosive issue in American politics, was being overturned. Yet he thought the trouble would fade over time.
The trouble didn’t fade; instead it got worse. Antislavery elements in the North coalesced into the new Republican party, the first antislavery and effectively sectional major party in American history. Antislavery militias waged irregular war against proslavery militias in Kansas for the future of that territory and, they thought, the future of America. Abraham Lincoln was one of the antislavery Republicans and John Brown a leader of the antislavery militia.
At this point, the battle over slavery was largely confined to the federal territories in the West. Under the accepted reading of the Constitution, dating from its adoption in the 1780s, each state controlled its own destiny on slavery within its borders. Massachusetts could ban slavery without asking leave of Virginia, and Virginia could maintain slavery without asking permission of Massachusetts. Congress and the president had no say in the matter.
This changed, or appeared to, in 1857 when the Supreme Court delivered its ruling in the case of Dred Scott v. Sandford. The gist of the ruling was that Congress did not possess—and never had possessed—authority to bar slavery from the western territories. The Missouri Compromise had been unconstitutional from the start.
This touched off an even larger explosion than the Kansas-Nebraska Act. Chief Justice Roger Taney and the majority of the court declared themselves smarter than three generations of their predecessors, going back to the earliest days of the republic. Moreover, the reasoning of Taney and the court, based on the clause of the Fifth Amendment that says that no person can be deprived of property without due process, seemed to apply to the states as well as to Congress. Lincoln and other Republicans feared a sequel to Dred Scott: a decision by the Taney court that the states could not prohibit slavery even for themselves. Massachusetts and the other Northern states would find themselves subject to recolonization by slavery, against their own wishes.
Southerners gloated. Northerners, even many for whom slavery was not a pressing concern, despaired. Ohioan John Brown, for whom slavery was a pressing concern, didn’t wait for Taney’s second shoe to drop. With hands already bloodied by the guerrilla war in Kansas, Brown in 1859 led a raid on Harpers Ferry, Virginia, against a federal armory from which he hoped to steal weapons for distribution to enslaved men in the area who would rise up against their masters and strike for freedom.
Brown’s raid failed. He was captured, tried, convicted and hanged for treason against Virginia and murder. But Northern abolitionists proclaimed him a martyr, thereby convincing Southerners, who deemed Brown a terrorist, that the Northern opponents of slavery would stop at nothing to destroy the institution. When Lincoln, the nominee of the Northern antislavery party, won the presidency in 1860, eleven Southern states seceded. The Civil War followed.
There are no operable cannons trained on Fort Sumter these days. But the echoes of that time resound nonetheless. Should the Supreme Court of John Roberts rule in Dobbs v. Women’s Health that the Roe v. Wade case of 1973 was wrongly decided, the effect will be akin to that following the judgment of the Taney court in Dred Scott. A half-century of settled law will be negated, and an expectation held even longer—that the states can write their own laws on abortion—will almost certainly come under attack. Abortion opponents energized by a favorable Dobbs decision will have every reason to seek a federal statutory ban on abortion.
Critics of Roe have long said that abortion should be left to the states, and to politicians rather than judges. During the nineteenth century, slavery was in the hands of politicians and of the states until Dred Scott snatched it from the politicians and threatened to seize it from the states. The lesson of that earlier period is that on an issue as morally fraught and bitterly contested as slavery, distinctions between courts and politics and between the national government and the states can get overwhelmed by the vehemence of the convictions involved.
What slavery was to that earlier era, abortion seems to be to our time. Our predecessors in that era failed the first test of democracy: resolving disputes peacefully rather than by resort to arms. Let’s hope we do better.