Slavery and abortion: the paradox of american liberalism

273 Pages·2016·1.43 MB·English

Wayne State University
Wayne State University Dissertations
1-1-2011
Slavery and abortion: the paradox of american
liberalism
Mark A. Ladd
Wayne State University,
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Ladd, Mark A., "Slavery and abortion: the paradox of american liberalism" (2011).Wayne State University Dissertations.Paper 416.
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SLAVERY AND ABORTION: THE PARADOX OF AMERICAN LIBERALISM
by
MARK LADD
DISSERTATION
Submitted to the Graduate School
of Wayne State University,
Detroit, Michigan
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
2012
MAJOR: POLITICAL SCIENCE
Approved By:
________________________________________
Advisor Date
________________________________________
________________________________________
________________________________________
________________________________________
DEDICATION
To my loving wife Mary, without whose patience, support, and grammatical assistance this
would not have been possible.
ii
ACKNOWLEDGEMENTS
I would like to thank Professor Phillip Abbott who was both my inspiration and guidance
throughout this project. He was my window to scholarly research and an insightful mentor that
gave significance to all my efforts. I would also like to thank Professor James Chalmers who
introduced me to political philosophy and always forced me to challenge my thoughts as he
offered introspective analysis when we discussed my research.
iii
PREFACE
Abortion is a volatile topic in American politics and as a way to examine its existence in
American political thought I present an historical comparison this issue to the existence of
slavery. It is my contention that America‘s liberal tradition allows for illiberal institutions to
appear in our history and it is only through public debate that these illiberal institutions can be
eliminated.
In chapter 2 I lay out the legal history of slave law and its adjudication. This is followed
in chapter 3 by the demonstration of the use of liberal language to both defend and excoriate this
institution. Then in chapters 4 and 5 I lay out the legal and philosophical thought surrounding
abortion and make the claim that this institution mirrors slavery in both idea and application.
Chapter 6 is where I introduce John Rawls theory of distributive justice as a way to
eradicate abortion from America while upholding our liberal tradition. My conclusion is that a
paradox exists in American political thought that both defends the rights of people while
simultaneously allowing for the limitation of rights for certain groups. Slavery and abortion
illustrate this paradox and as slavery was removed from America through civil war, abortion can
extinguished using America‘s liberal tradition.
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TABLE OF CONTENTS
Dedication ____________________________________________________________ ii
Acknowledgements ____________________________________________________ iii
Preface ______________________________________________________________ iv
Chapter 1 Introduction __________________________________________________ 1
Chapter 2 Slavery and the Law ___________________________________________ 22
Chapter 3 Liberal Language and Slavery ___________________________________ 51
Chapter 4 American Abortion Law ________________________________________ 87
Chapter 5 Abortion and Liberalism ______________________________________ 125
Chapter 6 The Theory of Justice and Abortion ______________________________ 158
Chapter 7 Conclusion _________________________________________________ 192
Notes ______________________________________________________________ 206
Bibliography ________________________________________________________ 254
Abstract ____________________________________________________________ 266
Autobiographical Statement ____________________________________________ 267
v
1
Chapter 1
Introduction
Louis Hartz proposed in 1955 that America was born with a liberal tradition that
determines the path of our political behavior.1 Hartz also claimed that our devotion to Locke
created an aura of certainty in American political thinking. This certainty destroys any middle
ground in public debate as those who are marked as illiberal are shut out of the discussion.
Hartz‘ thesis has been challenged by many scholars who have been confounded by the illiberal
behavior that has also been a part of America‘s history.2 The existence of illiberal behavior
within the liberal fabric of America has created a paradox that has often made America‘s liberal
tradition appear inconsistent and Hartz‘s thesis misguided. However, what must be realized is
that illiberal behavior exists in all societies. What makes America unique is that our liberal
tradition allows America to address these illiberal impulses and continue to work toward the
liberal society that Hartz identified.
Alexis de Tocqueville wrote in the 19th century that, A great advantage of the American
is that he had arrived at a state of democracy without having to endure a democratic revolution
and that he was born free without having to become so.3 Tocqueville also spoke of the American
fascination with equality as he stated, ―Men therefore hold on to equality not only because it is
precious to them; they are also attached to it because they think it will last forever.‖4 In other
words American liberalism means that society can and should be improved. This continual
attempt to improve society is accomplished by applying human intelligence to social and
economic problems; in this way the historical fascination with being born free and equal is
cultivated. For Americans freedom is a birthright that has emerged as the presumption that this
2
is how our society would be perpetuated. Any thought process or movement that can be viewed
as retarding social or economic progress is rejected by Americans as illiberal. Examples of the
rejection of illiberal impulses in American history would be the elimination of slavery and the
inability of socialism to gain a foothold in American thought. In a more narrow sense, liberalism
in America has been defined as, ―a general set of ideas that appeal to personal freedom, equal
worth, consent by the governed, and private ownership of property that are defined as core
human values.‖5 The upshot of these definitions is that Americans view themselves as liberal
because we attempt to pursue the greatest amount of freedom and equality for all through the
process of representative democratic government. In the American mind any behaviors that are
interpreted as counter to the expansion of these core values is labeled illiberal and must be
removed.
An important idea is that the existence of illiberal behavior does not discount the
dominance of a liberal tradition. Illiberal behavior exists because men are imperfect and their
behaviors will always be influenced by things such as money, power, and reputation. This desire
for fame and fortune encourage illiberalism; nonetheless, I contend that America‘s liberal
tradition has, and will, prevail. American liberalism is a process that does not project a continual
upward slope on its way to the perfect liberal society, but rather it follows an uneven path of
progress. These apparent ebbs and flows in liberal behavior are not the multiple traditions as
argued by some,6 but rather the unique American behavior that is constantly striving for
expanded freedoms. This is what allows seemingly illiberal behavior to exist for periods in
American history and is what I call the paradox of liberalism. If a group can present their
position in liberal language and then defend it by demonstrating connections to our founding
documents, they are welcomed into the discussion. As Hartz tells us, these groups might even
3
enjoy some success. Nonetheless, they will be conquered by America‘s liberal ethos.7 While at
first glance this might appear hypocritical, it is in fact the greatest support of the liberal notion of
free expression. If a political position can be expressed in liberal terminology then it must be
heard and through the process of public debate the citizenry will decide if indeed it is liberal or in
fact illiberalism hiding in the accepted thinking of the nation. The difficulty is that this process
takes time to ensure all sides receive a fair hearing. This application of the liberal tradition can
be seen in the debates over slavery and abortion in America. The issue of keeping people in
bondage as chattel slaves played out in America only to be ―crushed by a great civil war.‖8 The
battle over abortion continues in America today and I argue that it too can be eliminated;
however, in 21st century America, abortion can be removed by liberalism instead of battlefield
conflict.
Whether it was like awaiting a ―fire bell in the night‖ or akin to ―holding a wolf by the
ears‖9 slavery was viewed as an irresolvable conflict in antebellum America. What made this
debate so visceral was both sides had roots in American liberal thinking. In chapter two, I
discuss the evolution of slave law and demonstrate how this debate placed property rights
squarely at odds with liberty rights. Slaves were property and property rights were supreme in
18th century America. The reality of the day was even if one would concede that slaves were
indeed human, they certainly were not equal to white America. This can be seen in the writings
of two of the ardent defenders of liberty, Thomas Jefferson and Abraham Lincoln.10 What
becomes obvious is that the creation, enforcement, and adjudication of slave laws contradict each
other as the humanness of the slave enters the debate. Historians Thomas Morris11 and Mark V.
Tushnet12 explain the ramifications that existed during the antebellum period as these convoluted
laws and decisions were applied. The law wrestled with how to classify slaves as different types
4
of property as each had distinct requirements. The law was not so much perplexed with
designating slaves as property, it was more a legal issue of how to adjudicate property claims.
The purpose of law during this period was to ensure the slave was classified as a possession
without any human designation. In this way the slave was no different than a piece of furniture
or livestock. An example would be to call a slave immoveable property which had very different
legal repercussions than claiming a slave was realty. Slaves classified under immovable property
were designated as chattels and were adjudicated under a separate set of civil laws as opposed to
slaves that were designated as realty or part of the master‘s estate. Regardless the designation,
the purpose of keeping slaves listed as property undermined any moral argument made against
the peculiar institution because these cases dealt with possessions and not humans.
By the 1830s the humanness of the slave moved to the forefront of the slave debate as
contract law issues became more common as well as disciplinary procedures against recalcitrant
slaves. In the realm of contract law, civil suits were being brought against slaves for property
damage. In order to make a claim of this sort the petitioner must be able to show negligence and
to do so requires a level of competence. An argument of this sort cannot be made against an
animal to request compensatory damages, only against a person. In another legal vein when
attempting to hold a slave accountable for harm to another person requires culpability and proof
of intentional actions. The ability to plan out and follow through on a plan of action are
behaviors that are part and parcel of what makes one human. By making the slave accountable
for their actions, slave owners were indirectly recognizing the humanity of the slave.
Liberalism demands a connection to the founding documents of our nation as evidence of
an ongoing liberal thought. As local and state courts struggled with this prerequisite, the
Supreme Court of the United States entered the fray in an attempt to settle this debate. Slave