Skip to comments.Dred Scott decision still haunts country, professor says (Mega Barf Alert)
Posted on 03/31/2006 7:20:24 AM PST by Cat loving Texan
Analysis of an almost-150-year-old U.S. Supreme Court decision the Dred Scott case is important because it helps answer a contemporary question, said Harvard law professor Randall Kennedy: "Why are black people so angry?"
Part of the answer is the racism inherent in the foundation of our government, he said, and it's not a historical artifact.
"Do we still live in a pigmentocracy? Yeah, we live in a pigmentocracy," Kennedy said Thursday night. "Until it is a (case) that one can read and feel that it is repudiated, it will continue to have . . . a certain potency."
Kennedy's comments came in a public conversation with Duke law professor Walter Dellinger during the kickoff event for a symposium on the Dred Scott case at the University of Texas School of Law. The 1857 case denied Scott his freedom and said black people could never be American citizens.
The symposium continues today and Saturday with discussions by 11 law, history and political science professors from across the country.
The case matters today because of the issues it raises about the roles of the Constitution and the U.S. Supreme Court, said UT law professor Sanford Levinson, the symposium's organizer.
Dellinger used the case to frame discussion of current immigration debates as Congress is considering denying citizenship to children born to illegal immigrants. The Dred Scott case was about deciding who got to be a U.S. citizen, he said, warning of the dangers of defining in laws and courts who is or is not American.
Both scholars agreed that the primary importance of the case is that it lays bare the prevailing attitudes about black people in early U.S. politics. "It makes us look at how race and racism are at the basis of the Constitution," Dellinger said.
A Virginia-born slave, Dred Scott was suing only for his own freedom, based on the argument that he could no longer be a slave because he had been taken to a free state. He had initially tried to buy freedom for himself and his wife, but his owner refused.
In March 1857, more than 10 years after he filed his lawsuit, the Supreme Court ruled on his case. The wide-reaching 7-2 decision denied citizenship to all black people and declared the Missouri Compromise unconstitutional, allowing slavery in all states.
Black people "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations," Chief Justice Roger Taney wrote in the court's decision. "They had no rights which the white man was bound to respect; the Negro might justly and lawfully be reduced to slavery for his benefit."
The decision, along with its soaring racist rhetoric, fueled the public debate on slavery, leading to Abraham Lincoln's election as president in 1860 and contributing to the start of the Civil War.
Kennedy said he sees Taney nearly every day in Harvard's library, where his portrait hangs on the wall among other historical figures. Despite the justice's opinion backing slavery, Kennedy said, he would not take the portrait down.
"In a way it's useful for Taney to be up on the wall," he said, because it can lead to conversation about him. "The problem is general ignorance."
If you go
The Dred Scott symposium is free and open to the public and will be held at the Eidman Courtroom, 723 Dean Keeton St. Parking is available at the San Jacinto garage.
I wonder what percent of black teens (or white teens) could identify the case? Probably not a very high percentage. It has nothing to do with problems facing the black community today and has nothing to do with the solution to these problems.
But how do the blacks feel about losing their leading minority status to the Mexicans?
I can read it and feel that it's repudiated. And its "potency" exists only in the minds of the race hustlers who have leveraged it into a cottage industry.
Racism is only inherent in the foundation of our government because liberals screwed with laws and entitlements long enough to make it so.
Its potency was forever crushed by the Union Army, and the destruction of the Old South.
Actually, I read something recently that suggested that, although on its face an outrage, the decision was, intentionally or not, a historically brilliant legal maneuver. By counting each slave as less than a full person, it kept the official population of the southern states from artificially ballooning, thereby inflating their representation in Congress and making the goal of freedom a slower and more difficult goal to achieve.
Isn't the Dred Scott Case the case where Scott keeps his dred locks? Erie!
Further proof that the modern "civil rights" movement is ballasted by 150-year old injustices long since put right.
The Democrats will probably start by trying to give back Texas
I do not believe the Dred Scott Decision had anything to do with the three-fifths provision. The people in the North actually wanted to count slaves as zero and the people in the South wanted to count them as one, but this was only for the purposes of deciding the apportionment of representation in the House of Representatives.
Give it back. Give it back. To us.
I totally agree BenLurkin. These so-called "moderates" would welcome the brown people as long as those brown people do their landscaping for a low price.
Oh wait... you mean not only are they bringing landscaping tools in, but drugs as well? Who cares. Some of these men probably have felonies? Who cares.
Meanwhile, while black Americans continue to struggle for an education and to do away with the biased, gangster image they are constantly bombarded with on liberal entertainment television, these illegals are getting a free ride...
Oh the logic of a liberal... wait that's an oxymoron...
Dred Scott does, indeed, still haunt our nation. I bring it up every time a pro-abortion type wants to talk about "stare decisis" as the most important guiding principle of the Supreme Court.
I don't think it said that. It said they were not citizens. There is a difference. After the (supposed) ratification of the 14th Amendment, I think all seven members of the Court who concurred with the decision would have agreed that blacks were then citizens.
I emphasize seven because it seems as if today's "historians" act as if the Dred Scott case was decided by one old lunatic.
Because their so-called leadership has failed them. The Civil Rights Act was game, set, and match. From that point on, the cry should have been, "We have won equal rights - now what are we going to do with them?" Instead, they kept on as if they were still unequal in the eyes of the law.
Before the Civil Rights Act, responsibility for the success or failure of African Americans rested on me, as a white male. After the Civil Rights Act, the responsibility rested solely on them.
The so-called "3/5ths compromise" had to do with counting population for the numbers of congressional representatives since (as it is today) the number of Representatives is based upon the population figures. The compromise was that 3 out every 5 slaves would be counted for population numbers thus entitling the southern states higher number of Representatives.
The 3/5ths compromise went back to the Articles of Confederation period and had to do with tax assessments to the states. The idea was that a slave worked less productively than a free person, so that five slaves would do the work of three free persons. The formula was then taken over in the Constitution for apportioning representatives (and also "direct taxes").
I also wonder how many of them realize that it was their favorite democrat party that was behind Dred Scott and that Justice Taney was a member of their party of slavery.
--But the case has been repudiated--
Dred Scott v Sandford was never overturned, rather it was rendered moot by the 13th Amendment, passed as a result of a war the case helped provoke by overturning the Missouri Compromise. The real lesson of Dred is the damage judicial review (something never expressly provided for in the US constitution BTW) can cause when it runs afoul of strong majority will.
Never said it was overturned. It was repudiated but not by the court. It was repudiated by the people of the US, which is even stronger.
True, but only after a war that: Killed over 600,000 people Devastated a major region of the US (which languished economically as a result for nearly 100 years after the war's end)
Began the long march toward a leviathan federal government
Left political and social after-effects which are still felt today.
Just goes to show that people in black robes can do far more damage than people in white robes ever dreamed of.
And that little thing called the Thirteenth Amendment ...
And, it should be noted, "injustices" that were as much a function of the social milieu of the day as they were any infernal plot to oppress a given people.
Nor are they injustices to which anyone alive today has ever been victim.
The text you provide clearly does not support that interpretation.
No amendment shall be made to the Constitution which will authorize or give Congress the power to abolish or interfere within any state, with the domestic institutions thereof, including that of persons held to labor service by the laws of said State.
D-uh, the Corwin Amendment did not "legalize slavery everywhere in the Union." It allowed states to make their own laws regarding slavery, and forbade constitutional action to abolish slavery, i.e. it asserted "state's rights," what you guys want. It would not legalize slavery in Michigan or Vermont or give it additional protection in the free states.
Nor did it represent Congress's ideal intention with regard to slavery. It was a last ditch compromise effort to save the union. Moreover, the Corwin Amendment was an attempt to head off the Crittenden compromise which would have made slavery legal in the territories." Neither proposed amendment would have "legalized slavery throughout the country but at least the Corwin version would have left the non-slave territories free.
Whether the Corwin Amendment would have been ratified and what status an "unamendable amendment" would have are debatable questions with no easy answers. The supporters of the amendment widely regarded the amendment as simply reasserting the Constitution's provisions with regard to slavery, not as some radical change.
The Corwin Amendment certainly wasn't our nation's finest hour. It was an attempt to prevent the country from falling apart by trying to satisfy Southern demands for Constitutional protections for slavery.
Part of the 14th amendment seems to be intended to overturn Taney's opinion in the Dred Scott case--the part stating that all persons born in the US and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.
Yeah, it does, today it's called ROE V WADE.
"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..." (Art. I, Sec. 9).
In Article V, where it talks about amending the Constitution, it says that "no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses of the Ninth Section of the first Article..."
So Congress could have prohibited the importation of slaves into Vermont, Kentucky, Tennessee, or Ohio before 1808.
Reconstruction was such a highlight in our history. Don't buy the rantings of this pigmentologist.
The problem with the Dred Scott decision was Taney's incendiary opinion, not the outcome itself. "Domestic servitude" was a complicated thing, and the Dred Scott case is interesting on many levels.
Dred Scott had followed his longtime master, an army surgeon, on various postings in the North, the South, and the territories. Over many years of faithful service, he never made any attempt to run away (which probably would have been easy when in the North) or purchase his freedom. I will defer to anyone who has read a detailed history of the case, but my surmise is that Dred Scott and his master probably had a fairly positive relationship as such things are measured in a master-slave context -- i.e., the sort of thing the moonlight-and-magnolias confederate apologists like to imagine. It was not uncommon, though slavery obviously had darker faces as well.
Anyhow, Scott's longtime master eventually died and the widow wanted to hire him out to someone else. Long accustomed to apparently congenial service to his old master, Scott resisted the move. That is when he attempted to purchase his freedom. The widow refused. Scott then sued for his freedom.
This would have been a far more challenging case had Scott sued for his freedom while resident in a free state, but he never did; the surgeon was alive during those years, and Scott was apparently content. He brought suit while a resident of Missouri, and a temperate court could have held simply that the laws of Missouri were controlling. This, however, would have implied that the laws of free states were controlling when Scott was resident there, and that was a conclusion Taney apparently wished to suppress.
Taney therefore trumped up one of the most scandalously overreaching decisions in the history of judicial activism, complete with the incendiary assertion that black men had no rights that white men were obliged to respect. This utterly ignored the long history of civic emancipation of black people in the north stretching from colonial times forward, as well as the slave codes of southern states. Slaves most definitely DID have legally recognized protections even under southern slave codes, inadequate though they were. The logic of Taney's decision was, in fact, so sweeping that under it, free states would not have been able to exclude slavery at all. The war came before all these issues were played out.
The most poignant part of the story is that, after the failure of his suit, Scott's freedom was purchased by the children of his old master. He died a few months later. The participation of his old master's children speaks volumes about Scott's relationship to the surgeon for most of his life in servitude. It also leads me to wonder whether the case was a put-up job to test the principles involved. (Plessey vs. Ferguson is a classic case of this.) Are there any scholars of the matter who can shed light on this?
And you're saying that a measure restricting Congress's ability to legislate on slavery would overturn long-standing state laws banning slavery? The Dred Scott still needed to be interpreted and enforced and could likely be overturned. Had most Northern Congressmen or state legislators thought that the Corwin Amendment repealed the Northwest Ordinance.
Pea, you are truly barking mad if you believe that Congress was voting to legalize the Atlantic slave trade or legalize slavery throughout the North. The Corwin Amendment was intended to be a moderate alternative to the Crittenden proposal and won support precisely because it didn't overturn state laws forbidding slavery and established federal laws concerning slavery in the territories.
What you're doing is playing empty word games. That's to be expected if you learned your Constitution from Jefferson Davis, but it's not convincing to those who haven't drunk the Kool Aid.
Southern radicals threatened to secede. Congressmen tried to do what they could to appease them. Northern politicians were willing to go a long way to give Southern slaveowners the guarantees for slavery that they wanted in order to prevent secession. It wasn't a question of what those Congressmen ideally wanted or would have done in the absence of an unprecedented national crisis.
And just what other rights to property were threatened in 1860 and protected by such compromises?
It's been 140 years since the Civil War. What's the problem with admitting that slavery was a major part of 19th century American life and the defense of slavery a major preoccupation of Southern politicians?
I always like to bring up the Dred Scott Decision every time a liberal starts defending Roe v. Wade by harping on the importance of respecting precedents and never overturning previously-decided cases.
Isn't that what the laws and courts are for, to in part define things like this?
Dred Scott had nothing to do with that. The census status of slaves had already been established by Article I, Section 2, Clause 3. Dred Scott ruled that free blacks were not citizens and could never be citizens of the U.S. And there was nothing brilliant about the twisted, tangled legal reasoning that Chief Justice Taney applied in his decision. Quite the opposite.
If you are insinuating that Dred Scott was issued in 1861 then you are sadly mistaken. The decision was issued in 1856.
The Corwin Amendment to the United States Constitution, Number 13, Would Legalize Slavery throughout the Country.
Absolute nonsense, as you would know if you bothered reading the amendment to begin with. "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." If slavery was legal in Alabama then Congress couldn't end it, though Alabama could have had they wanted to. But if slavery was illegal in Michigan then the Corwin Amendment did not mean that it was suddenly legal. Michigan could continue to ban it. The Corwin Amendment was, in its own way, no different from clauses in the confederate constituiton which established slavery in the confederacy and ensured the central government could not interfere with it.
Very clever Walter. Connect the "victims"