Failing the Dred Scott Question

As I have already written, I have great concerns about some of the answers given by Judge Neil Gorsuch during his confirmation hearings. I consider his originalist legal philosophy to be perfectly sound and likely to produce decisions that are favorable to the cause of human life. But when asked the most important question, his answer was an utter failure.

One of the Democratic Senators, Richard Durbin, was questioning Judge Gorsuch about a book he had written about assisted suicide and euthanasia. In the book, Judge Gorscuh proposed a principle that could be used to justify laws against suicide and euthanasia, which he called the “inviolability-of-life principle”:  “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

Senator Durbin then asked the judge how he could square that principle with legalized abortion. This exchange then took place:

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment—and that book explains that..

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, Senator, yes.

I appreciate Judge Gorsuch’s respect for precedent and the original meaning of the Constitution. But I wonder if he realizes that in his answer, he was echoing one of the worst possible Supreme Court precedents — the infamous case of Dred Scott v. Sandford. In that decision, the Court held that, based on their reading of the original meaning of the Constitution, African-Americans were not “persons” within the meaning of the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect…. [and the provisions of the Constitution] show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

In a concurring opinion, one of the Justices said this:

The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person.

Is that really the kind of precedent that we want Supreme Court justices to respect?

What’s especially disheartening about Judge Gorsuch’s answer is that he didn’t have to say that at all. He could have easily deflected the question — as he did with pretty much every other substantive question — by saying that the issue of the personhood of unborn humans was likely to be litigated before the Court and that it was thus inappropriate for him to comment. The fact that he did give a substantive answer means that he considered the non-person status of unborn humans to be so clearly and finally settled that it is uncontroversial.

I still think that Judge Gorsuch should be confirmed, and that he will likely rule positively on incremental pro-life regulations of abortion. But any hope that he would overrule Roe v. Wadeappears to be a mirage.

The most important threshold legal question in any case is whether someone can count on the protection of the law to defend their basic human rights. Judge Gorsuch failed that question.

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