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Slavery and Abortion: the Paradox of American Liberalism Mark A Wayne State University Wayne State University Dissertations 1-1-2011 Slavery and abortion: the paradox of american liberalism Mark A. Ladd Wayne State University, Follow this and additional works at: http://digitalcommons.wayne.edu/oa_dissertations Part of the Political Science Commons Recommended Citation Ladd, Mark A., "Slavery and abortion: the paradox of american liberalism" (2011). Wayne State University Dissertations. Paper 416. This Open Access Dissertation is brought to you for free and open access by DigitalCommons@WayneState. It has been accepted for inclusion in Wayne State University Dissertations by an authorized administrator of DigitalCommons@WayneState. 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. iv 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
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