Undoubtedly, there are differences between slavery and abortion. But the parallels are chilling. Dyer’s book shows that America today is rehashing much of the same debate that occurred 150 years ago. Running throughout the book is a sense of the moral foundation of America’s constitutional order. The Constitution is not just a document that sets up procedures for how the country should be governed. Rather, the procedures and institutions it created rest on a moral foundation. American political rights rest on what is really and truly right.

The Civil War was a turning point in the moral history of the United States. Previously the country had tolerated slavery, a direct affront to the founding proposition, contained in the Declaration of Independence, that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” The Civil War purged this moral blight from the country by ending the enslavement of some men by others.

But the blight may have reappeared. As Justin Buckley Dyer shows in Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013), disturbing parallels exist between the debate over slavery before the Civil War and the debate over abortion now.

Dyer, an assistant professor in political science at the University of Missouri-Columbia, begins his book by observing that both proponents and opponents of abortion invoke America’s legacy of slavery to bolster their arguments. This invocation often takes place in a politically heated environment, however, and Dyer sets out to examine the analogy with scholarly rigor. The result is a short, but dense and challenging book.

Dyer first turns to the legal reasoning behind the Supreme Court’s decision in Roe v. Wade. The Supreme Court found a right to abortion in the due process clause of the 14th Amendment of the Constitution through a legal doctrine known as “substantive due process.” The 14th Amendment prevents states from depriving “any person of life, liberty, or property, without due process of law.”

This amendment, the Supreme Court argued, does not simply protect people from arbitrary government coercion that does not follow set procedures, but it also actually encompasses certain rights and prevents the states from infringing on those rights. One of those rights, the court found, is a right to privacy, which includes abortion.

The Supreme Court used similar reasoning in its 1857 Dred Scott v. Sandforddecision, grounding it in the Fifth Amendment’s due process clause (which applied only to the federal government; the 14th Amendment applied the Fifth Amendment to the states). The Dred Scott decision declared that slaves are not people who can sue in federal court and allowed slaveholders to take their slaves into free territories without fear of their slaves becoming free.

Some conservatives, such as U.S. Circuit Court Judge Robert Bork, took issue with theDred Scott and Roe decisions because they represented judicial activism. The court, Bork argued, was reading more into the due process clause than was really there. Dyer takes issue with this conservative argument, appealing to both the history of the due process clause in the common law and to the reaction of anti-slavery Republicans to the Dred Scott decision.

“The Republican Party in general, and Abraham Lincoln in particular … emphasized the moral wrong of owning other human beings rather than taking swipes at [Chief Justice] Taney’s substantive reading of the Fifth Amendment,” Dyer writes.

The problem with the Supreme Court’s ruling based on substantive due process, Dyer says, is not that it found moral substance in the due process clause, but that it found the wrong moral substance, and thus made a wrong ruling:

 …those searching for historical analogs of Roe v. Wade may indeed find a lesson in the history of the Dred Scott case. The proper analogy, however, is not to be found in the common denunciation of a moral reading of the Constitution as inherently problematic. Rather, the nexus penetrates deeper to the principles underlying the constitutional order.

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