The Progress of Justice for All

by Brian Potts - November 14, 2008

Reprinted with permission.

Justice Harry Blackmun's eyes do not meet those of his visitors. Sitting on a desk in a painting, he faces the elevators on the 27th floor of the federal courthouse in Saint Louis, Missouri, surrounded by pictures of himself and summaries of his opinions, but he glances away to his right.

To his left, the Harry A. Blackmun Rotunda opens onto a spectacular view of the city of toasted ravioli: the old cathedral, the new baseball stadium, the mighty Mississippi, the arch, and the old state courthouse.

Under the faded green dome of that old courthouse, Dred and Harriet Scott's lawsuit for freedom first went to trial in 1847. Through a series of state and federal proceedings that produced temporary emancipations and sudden returns to captivity, the case finally reached the Supreme Court of the United States.

Chief Justice Roger Taney delivered the infamous opinion of the Court. The nation was on the brink of civil war. The Missouri Compromise of 1820 had attempted to maintain a precarious balance between free states and slave states. Under the Compromise, the nation admitted Missouri to the Union as a slave state, and admitted Maine as a free state. The Compromise drew a line across the nation above which no territory could enter the Union as a slave state.

In 1834, the Scott family was taken by its "master" above this line into the free state of Illinois and the territory of present-day Wisconsin. In their lawsuits, the Scotts claimed that their time in free America liberated them. Could slaveholders from the South simply take their slaves to the North and effectively undermine the Compromise and the laws of free states? Chief Justice Taney began his opinion by recognizing that "the questions in controversy are of the highest importance."

The Supreme Court held, among other things, that Scott lacked standing even to sue for freedom. The Court framed the fundamental question as follows:

Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

The Court said no.

The Court recognized that the "words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing." The Court even recognized that the words of the Declaration of Independence – "'We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness'" – would "seem to embrace the whole human family."

Yet the Court pointed to the history of American and European abuses of people of African decent, and held that the Framers did not intend to include such people in the protections of the Constitution and Declaration of Independence. The Court held that Dred Scott and other slaves did not meet the definitions of "people of the United States," "citizens," or "men," and therefore did not have standing to sue for their freedom in federal court.

The Court's decision is an abomination,painful to read, unworthy of the title "law." Yet the beauty of the natural law is that it remains, in all places and at all times, unaltered by such abominations. The Supreme Court's attempt to resolve the issue of slavery in violation of the plain language of the Declaration of Independence and the Due Process clause of the Constitution's Fifth Amendment ("No person shall… be deprived of life, liberty, or property, without due process of law"), both of which codify parts of the natural law, failed to persuade Americans of better sense, and helped ignite the Civil War. Thanks to many patriots over many years, American law finally recognizes people of all races as equal.

The status and rights of another group of people came before Justice Blackmun, born in Illinois 100 years ago today, in Roe v. Wade. Like Justice Taney, Blackmun began his analysis with an extensive examination of history aimed at discrediting the personhood of the class of humans he would rule against. He manipulated history. He cited Plato's Republic for the proposition that "most Greek thinkers… commended abortion, at least prior to viability," without noting the irony and absurdity of Socrates' call in the text for forced abortion or infanticide of children conceived outside the hypothetical State's communal breeding plan. He referenced Augustine and Aquinas for the proposition that life begins long after conception, without accounting for the obvious fact that these theologians based their conclusions on the faulty science of their days.

The Court ultimately found a right to privacy in the Constitution and held that it "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The Court effectively held that pre-born human beings have such little status that states must allow them to be aborted practically at will throughout pregnancy. The very phrase "terminate her pregnancy" evinces the lack of dignity afforded to the pre-born by the Court.

Justice Blackmun noted the view of the state of Texas and certain amici that the fetus is a "person" within the meaning of the Fourteenth Amendment. The Court even recognized that "if this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

Yet the Court dodged the crucial question, suddenly exercising feigned judicial restraint: "We need not resolve the difficult question of when life begins… the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

Of course, the Court did answer the question. By striking down the will of the people of the states and allowing abortion on demand, the Court treated the pre-born as non-persons, not entitled to legal protection. As in Dred Scott, the Court deprived an entire class of human beings of the recognition of its basic dignity and human rights.

Like Justice Taney, Justice Blackmun might have hoped his opinion would settle the controversy. Yet the natural law persists, and Americans of better judgment continue to refuse to accept Roe. Even many of those who think abortion should be legal have criticized the failures of Roe.

America has progressed in its march toward justice for all. Every race and gender now shares equal civil rights under the law, although regrettably not always in practice. In protecting the life, liberty, and property of every race and gender, our law does not create these rights; rather, it recognizes these rights as part of the constant natural law. It is time for our law to recognize the basic right to life of all people, regardless of age.

Science is clear: Justice Blackmun was born 100 years ago, but he began his life 100 years and approximately nine months ago. The Blackmun Rotunda displays a photograph of the justice as a baby in his mother's arms. He seems to wail, as if crying for justice.

Brian Potts is an associate attorney with the law firm of Brown & James, P.C.