To be honest...I don't see much of a comparison either.
In Dred Scott, the Court held that, a slave was property...nothing more...and that the federal government, through the legislation known as the Missouri Compromise, could not deprive a slaveowner of his property without due process of law under the 5th Amendment.
This was the first use by the Court of the legal fiction known as substantive due process (I think there may have been a case or two before Dred Scott...but those involved questions or both procedural and substantive due process).
Substantive due process...which the author indicates should have been invoked by the federal courts in the Sciavo case has been used by courts throughout the 20th century just as the Dred Scott Court used it...to overturn, legitimate, constitutionally-enacted legislation that the Courts don't like....most notably in the Roe v Wade case.
Not only is that a wrong reading of the language and intent behind the 14th Amendment but its hardly something any of us should be advocating
This piece also has a lot of inaccuracies in it...while Dred Scott held the Missouri Compromise unconstitutional...it did not void it...the Compromise had been replaced by the Kansas-Nebraska Act years before the Supreme Court heard the Dred Scott case.
Based on your statements, and my holding no opinion at this point, I'm curious on your thought of the following paragraph from the article:
In 1883 the U.S. Supreme Court in the Civil Rights Cases slapped down more civil rights legislation
from Congress under the 14th Amendment. This case with its dark, fell spirit laid the foundation for the
Plessy Ferguson “separate but equal” opinion thirteen years later. The 1883 Civil Rights Cases went to
great lengths to explain why the citizenship rights clauses and the personhood rights clauses of the 14th
Amendment did not mean what the words seemed to say or what the history of the Amendment seemed
to indicate. The opinion is the direct precursor of the result reached in the Terri Schiavo matter. The 1883
opinion said that Congress’s power to legislate under the 14th Amendment could be corrective and
responsive only. It could not be proactive so as to affirmatively protect one’s civil rights or inalienable
rights viewed substantively. In short, even if substantive rights are protected by the 14th Amendment, that
does not mean that Congress has the legislative power to protect them substantively. Congress can only
protect them in a corrective and reactive way, and then only by general legislation aimed at correcting
procedural errors in the processes and machinery of a state. It cannot deal directly with individual
grievances or claims of substantive right.
Stated another way, in 1883 the U.S. Supreme Court tried to remove from Congress a power
vested in Congress by the Constitution itself. The 1883 opinion is typical of those where the Court allows
Congress to respond to general grievances in the states with corrective and responsive legislation aimed at
the state itself. But if Congress tries to direct the courts to examine a substantive right to life and whether it
is being violated by the machinery of law in a particular state, Congress has no power to interfere
according to such opinions. This totally misguided and wrongheaded result in 1883 is what caused us to
have to wait until 1964 to get a Civil Rights Bill nearly a century too late. And even then the judicial
rationale supporting it did not directly overrule the 1883 opinion.
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the paragraph after the ones above I find is an interesting conclusion... but it is based on the above, so thus my curiosity.
Received this from the author.
Errata: This essay was written in less than two days largely from memory and contains mistakes that deserve correction. First, even though the Supreme Court in 1857 declared the Missouri Compromise unconstitutional where Dred Scott was concerned, the Kansas-Nebraska Act of 1854 had already ended the requirement that free states only be carved from the territory north of the compromise line. Second, that one slave state must be admitted for every free state admitted was not a requirement of the Missouri Compromise, but simply a customary practice through the early 1850s. It is true but seldom recognized, however, that the Dred Scott opinion had the overall effect of making every state a slave state. Third, Oregon was made a state by Congress’s enabling act of February 14, 1859 after having been obtained much earlier from Great Britain. Doubtless there will be other necessary corrections, hopefully minor.
On a separate point, there will be those who assume that the author is subscribing to the modern notion of substantive due process in my critique of procedural due process. That is not the case. Substantive due process is a term meaning that the judges themselves can define new rights and policies according to their own whim whether or not those rights are already in the constitution and laws. So if a result in a case doesn't suit their taste, they can rule the way they want to based on their own preferred policies (i.e., legislating from the bench) and maintain that any other result would violate due process, meaning in reality that it violates their own preferred view of what the policy should be if the legislature knew better. That is entirely different from the judge being bound to examine substantive rights prescribed by the constitution and laws instead of relying on their own whims. So what I have explained, taken directly from Blackstone and the founding era, is a universe apart from substantive due process in the modern sense. What I have explained is neither procedural due process or substantive due process but original due process as explained in Blackstone’s commentaries and embraced by the Founders.
It is a common myth that the Dred Scott majority created the idea of substantive due process. This is an error. The USSC (Roger Taney) used the term "due process" only twice in his entire opinion. He explained that the slaveowner could not lose his property rights by a law that automatically freed a slave by his crossing the Missouri Compromise line into free territory. For the law to automatically confiscate his property (his slave) was for the slaveowner to lose property without due process of law.
Finally, some will assume that the entry of states like Kentucky, Mississippi, and others east of the Louisiana Purchase undercut what I have explained about the effect of the Northwest Ordinance. An example will suffice. Kentucky was originally the "Kentucky District" of Virginia and could have remained part of Virginia. Kentucky was allowed to become a separate state by compact with Virginia. There was no requirement originally that the undeveloped lands of the seaboard states stretching toward the Mississippi River be developed as separate states. This was done, in part at least, to increase the number of slave states and offset the impact of the Northwest Ordinance.