Law Prof Compares 'Person' in Roe v. Wade With Older Ruling That a Negro Isn't a 'Person'

Mass News ^ | February 13, 2003 | By Ed Oliver

[miltonim]

Professor of Constitutional Law Dwight Duncan

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[JudgemAll]

Law and truth finding vs. lawlessness and shrugging.

[nickcarraway]

ping

[nickcarraway]

If I recall correctly, in PP vs. Casey, Kennedy, O'Connor and Souter did not explicitly affirm Roe vs. Wade, rather they upheld it using the pinciple of stare decisis. In other words, they didn't find the law behind Roe vs. Wade sound, but they were unwilling to correct it, because abortion had already been legal for almost 20 years. They basically dodged the issue by relying on the precendent - even if they considered it bad law.

[foreverfree]

bump

[FlatLandBeer]

Hereis a question. If a fetus is not a person, how can a lawsuit be file is a child is born with a injury that occured before birth?

[SpinyNorman]

Wouldn't the laws of common sense apply here either? I mean, can the proponents of abortions on demand find anyone mentally competent and over the age of, say, three years, that will honestly testify that they do not believe that a pregnant woman will in fact eventually give birth to a small human being vs. a dog or a fist etc., barring accident, miscarriage or abortion?

Professsor Duncan has restored my faith in the legal profession, or at least a small part of it.

Mass. is one seriously screwed up state. I don't know if it is still done, but an underage girl could get pregnant here, and the state would give her an apartment, food stamps and all sorts of state aid. What better way to get back at your parents and get a free ride in the process. Of course, they were not required to name the father or anything so "non-progressive" like that. Wouldn't want to taint the system with a concept like responsibility for one's actions or anything.

[William Wallace]

Thanks for posting this. Excellent article.

[William Wallace]

Excellent analysis and overview of the legal travesty and lies surrounding Roe v. Wade and subsequent SCOTUS abortion decisions.

Prof. Duncan said the court opined that the only "persons" they could consider were women who were interested in getting abortions. It was their liberty that was at issue.

The Supreme Court used this reasoning at least once before, said Duncan, and that was in the 1857 Dred Scott decision that challenged the federal law prohibiting slavery in the territories.

In that case, the Court held that Dred Scott, a slave who sued for his freedom after entering free territory, was not a "person" in the meaning of the Fifth Amendment. Since he was not a person, he could not be heard.

The only party that could be heard was Mr. Sanford, his slave owner. Sanford's rights of private property in Mr. Scott were ruled to be protected by the Constitution. Both Congress and state governments were powerless to prohibit or limit slavery.

"It makes cases easy to resolve if you can decide that one side in a case is not a person," said Duncan.

Indeed.

[xsmommy]

thanks for the ping WW!

[xsmommy]

ping for you.

[hobbes1]

Our side does not equate Roe with Dred Scott often enough.


It is a point I make whenever I hear the "Settled Law of the Land" argument.

[MHGinTN]

Thank you for the ping. I've sent it to 'bookmark'. Judicial fiat is the last stronghold of democrat party liberalism, that's why they apply their litmus test to every appointment ot the bench. It is interesting to note that the cha,pions of legalized serial killing refer to the right to kill the babies waiting to be born as a 'constitutional right'. Cannibalism as enlightened medical advancement is their next great frontier ... and the American public is totally in the dark.

If the unborn are not individual human beings, how can preemies be born and survive as individual human beings? The entire specious argument of trimesters is instantly exposed as foolish when one preemie makes it in its struggle to survive, struggles to continue its individual lifetime begun at conception.

[okie01]

"Our side does not equate Roe with Dred Scott often enough."

Quite true. The Dred Scott decision, and its obvious wrong-headedness, is the comparison that even a liberal atheist (Nat Hentoff) uses for Roe v Wade.

[hobbes1]

True. However....Nat Hentoff is probably the only HONEST working liberal journalist.

[The Shrew]

Thanks for the ping.

It is my fervent prayer that this nation will not ultimately have to resolve Roe vs. Wade in the same manner that the Dred Scott decision was settled. In my laymans understanding that Court decision was overturned by Civil War and then the passage of the 14th Amendment.

Is that accurate?

TS

[nightdriver]

"In my laymans understanding that Court decision was overturned by Civil War and then the passage of the 14th Amendment."

That's my understanding of how the Dredd Scott decision was rendered moot.

My question is how has the Supreme Court handled the Dredd Scott decision? Have they ever rescinded, vacated or overturned Dredd Scott themselves?

If not, I contend that we don't really have a valid supreme court today.

[mabelkitty]

stare decicis - latin for "let the decision stand"

You need to clarify that for people to understnad.

[Dad was my hero]

Thanks for the ping!

One of the best responses I've read to the "not yet human" argument was presented by Joseph Farah in an argument explaining that the founding fathers must have meant all humans born and unborn when they wrote in the Preamble "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Who else was there posterity if not those not yet born? Obviously not just themselves and their children or was each generation to renew the document?

Sounds like protection for the unborn to me and also a declaration of personhood.