Checkerboard Policy

Somerset v. Stewart also confronts the reader with what Ronald Dworkin referred to as ‘checkerboard solutions.’ To be brief, a checkerboard solution is one that is designed or manipulated to apply to separate groups of people differently (Dworkin, 179). These solutions are unjust on their face, as they confer rights and obligations differently between groups of people, and are an affront to the notion of integrity in the law. If we think of checkerboard politics in the context of the American political arena, the Supreme Court’s controversial decision in Roe v. Wade provides interesting talking points. The decision allows abortions for all women before a certain point in the pregnancy, that point being the beginning of the third trimester at which time the fetus is thought (by the court at least) to be viable. This temporal ban is also applied to all women, nationwide. The argument can be made that even in retuning control of abortion bans to the states would not necessarily be a form of a checkerboard solution, as each state would ostensibly organize their abortion bans in a coherent and equal fashion (Dworkin, 186).

Somerset presents the reader with a checkerboard solution. The decision seems to have created a double standard within the British Empire; slavery was interpreted as having been ruled illegal in this decision within the bounds of England and Wales, but not so in the American Colonies – equally as invested a member of the Empire as the other constituent parts. In this sense, the court – or those interpreting the court – created a rule that affected different groups of people differently. Residents of the Island were ostensibly divested of their slave holdings – arguably unjust by the mindset of the time, whereas residents of the Colonies were allowed to perpetuate their ghoulish practice. To revert, only momentarily, to the Wade decision – the argument that giving the banning power back to the states does not necessarily create a checkerboard solution falls victim to a larger macroscopic claim, that is applicable to our discussion of Somerset. Dworkin argued that while the states may create their bands in an equal and coherent manner, the manner in which they do so can still create an issue of integrity on the national scale in that all other rights are considered “national in scope.” (Dworkin, 186) By this logic, allowing the states to control some rights of citizens, but not others, is in itself a checkerboard solution. This of course presupposes that the ability to seek an abortion is itself a right, or that the privacy found to be an integral issue in abortion by the Court is itself a right – for the purposes of this discussion, it is easier to assume that those are both true statements. In Somerset, the Court’s decision does exactly this. It recognizes the brutality of the practice in question, and the right of self-determination held by Somerset, but only within certain geographic boundaries. Had Stewart not retuned to England with his slave, and had remained in Boston with him; he would not have been divested of his slave.

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2 thoughts on “Checkerboard Policy”

  1. It seems to me that “Checkerboard” solutions are often the best solutions. In many cases broad sweeping legislation would be unnecessary or encumbering micromanagement. Situations that pay homage to state rights to self legislate would allow for greater dexterity in the application of law to specific geographic regions.

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