American journalist of The New York Times, Adam Cohen, comments on George W. Bush’s statements during the 2004 election debates regarding the comparison between Roe v. Wade and the Dred Scott decision. Cohen notes that “Mr. Bush ducked a question about his views on Roe in the third debate. But he sent his base a coded message in the second debate, with an odd reference to the Dred Scott case. Dred Scott, an 1857 decision upholding slavery, is rarely mentioned today, except in right-wing legal circles, where it is often likened to Roe. (Anti-abortion theorists say that the court refused to see blacks as human in Dred Scott and that the same thing happened to fetuses in Roe)” (Cohen). While Cohen himself is not the one opinionating the theory, the anti-abortion theorists themselves may have some issues in arguing humanity in Dred Scott is the same as fetuses in Roe.
To begin, Taney’s argument has sound principals in the ideas that blacks were people but not citizens. Chief Justice Taney repeatedly uses language such as “the unfortunate race” (Scott 7) and “persons of the African race” (Scott 21) which exemplifies that he did recognize slaves and blacks as human beings although his opinions, as later noted in the case, led him to believe that they fell under the category of property rather than citizen. The solid foundation of Taney’s argument is rooted in the fact that while blacks are human, “the language used in the Declaration of Independence, show that… whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used” (Scott 7). Similarly, Taney regards the language in the Constitution of the United States and that “no State was willing to permit another State to determine who should or should not be admitted as one of its citizens… The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government” (Scott 17). Hence, Taney recognizes that while some states may deem blacks as “freed”, it does not mean that they are allowed to give citizenship and thus argues that the federal government cannot permit citizenships to blacks either.
Furthermore, Taney emphasizes this notion with the fact that the framers of the Constitution also did not include language of blacks in the written document because they were not counted as citizens. Of course Taney recognized that blacks are human beings regardless of his prejudice that they were property without human rights but this can also be seen as a fundamental element of his argument. For example, Taney also mentions that “women and minors, who form a part of the political family, cannot vote, … yet they are citizens… And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States” (Scott 21). Thus, Taney had included the counterargument that even if the federal government was allowed to ban slavery and grant Dred Scott his freedom, free did not mean citizen and citizen certainly did not mean having rights. Thus, while it is arguable that Taney’s decision is atrocious in today’s standards, it cannot be argued that Taney did not recognize Dred Scott’s humanity; rather, he did not see him as a citizen with rights.
Cohen, Adam. “Imagining America if George Bush Chose the Supreme Court.” The New York
Times, 18 Oct. 2004,
Dred Scott v. Sanford. 60 US 393. Supreme Court of the United States. 1857.