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Roe vs. Wade and Dred Scott vs. Sandford; Harry Blackmun and Roger Taney

Harry Blackmun, our own Roger Taney

by PAUL GREENBERG, The Houston Chronicle, April 9, 1994. This article is part of no violence period.

INDULGE me in a momentary historical fantasy. Suppose that Roger Brooke Taney had not gone down in American history as the principal author of what is now almost universally acknowledged as the worst decision in the history of American jurisprudence, Dred Scott vs. Sandford in 1857.

Suppose the country had been shaped in the image of Chief Justice Taney's decision, which decreed that slaves could be carried anywhere in the union, and that Negroes could not be citizens under the Constitution, for they were ""regarded as being of an inferior order and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect. '' These were not persons, according to the high court, but property.

Stay with me, this may take some imagination. Now suppose that, instead of these words exciting contempt and derision, and moral horror, they were thought to represent a bulwark of American rights, a new birth of freedom.

In that case, there might still have been those Americans who did not approve of slavery, and perhaps even demonstrated against it, but suppose they were outnumbered by far? Not by fervent disciples of human slavery, but by the mass of citizens who felt uneasy when the subject came up, and who themselves would never own a slave, but who did not feel they should interfere with another's right to own one. Such a delicate question, they felt, should be left to individual conscience -- not dictated by the state.

And finally, suppose that Roger B. Taney, full of years and honors, were to announce that he would retire at the end of the Supreme Court's current term. What would some forgettable mediocrity of a president have said on that occasion? Would he have identified himself with the decision in Dred Scott? And would the departing chief justice have been hailed as the conscience of the court? Would the grand old man have explained at one point that, while not in favor of slavery personally, he had acted to protect the rights of others?

Too rich a fantasy?

Not if one listens to what is being said on the retirement of Justice Harry Blackmun, author of Roe vs. Wade, the Dred Scott decision of our time. Roe made it clear that the unborn child -- fetus, if that term is more comfortable -- has no rights that the state is bound to respect.

And like Dred Scott, Roe was handed down in the name of an individual right. Roger Taney's decision in Dred Scott was based on the Fifth Amendment's guarantee that no person shall be deprived of life, liberty or property without due process of law. Justice Blackmun based Roe on a vague right of privacy nowhere spelled out in the Constitution but ""broad enough to encompass a woman's decision whether or not to terminate her pregnancy. ''

Of course Roe does not condemn millions to a lifetime of slavery, but rather to no life at all -- or, if one prefers, termination. (Euphemism is the first sign that an advocate feels queasy about what he's really advocating.) At his press conference with Justice Blackmun this week, President Clinton repeated his support for Roe in his own forgettable way: ""I -- you know, of course, that I agree with the decision and I think it's an important one in a very difficult and complex area of our nation's life. ''

It might be noted that James Buchanan, the forgettable president in 1857, was all for the decision in Dred Scott, too, exulting that it would make Kansas ""as much a slave state as Georgia or South Carolina. '' At last the slavery question was resolved and the agitation over it would end -- just as Harry Blackmun's opinion in Roe was supposed to end any dispute about abortion.

Speaking of his decision in Roe, Justice Blackmun once explained: ""People misunderstand. I am not for abortion. I hope my family never has to face such a decision. '' Roger Taney's defenders in the more poisonous groves of academe explain that the chief justice wasn't ruling for slavery, but only interpreting the Constitution. People misunderstood.

By all reports, Mr. Justice Blackmun is a nice man, and a baseball fan to boot. Chief Justice Taney doubtless led an exemplary private life and had his hobbies, too. And both handed down other, better decisions besides the single one that history will indelibly link to their names. Perhaps that is the essence of this fantasy: In a society that has lost its moral bearings, strange and terrible decisions can be made, and can come to seem quite ordinary, even praiseworthy.

Greenberg is a Pulitzer Prize-winning syndicated columnist and editorial page editor of the Little Rock, Ark., Democrat-Gazette.

Copyright 1994 The Houston Chronicle Publishing Company