Dred Scott decision still haunts country, professor says (Mega Barf Alert)

Austin American Statesman ^ | 3/31/06 | Paul Thissen

[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.

[TheForceOfOne]

I can just imagine Hollywood remaking the Alamo, except this time the Mexicans are on the inside resisting us in order to gain independence for Texas. (With Alex Baldwin as the Great Grandson of Poncho Villa)

[Terabitten]

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.

[ml/nj]

The 1857 case ... said black people could never be American citizens.

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.

ML/NJ

[Terabitten]

"Why are black people so angry?"

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.

[blinachka]

I do not believe the Dred Scott Decision had anything to do with the three-fifths provision.

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.

[PeaRidge]

See number 17. It was the US Constitution, not the Scott decision, that defined slave apportionment at 3/5s.

Based on the Constitution, Taney declared that slaves could not be citizens.

[Verginius Rufus]

The Dred Scott case was primarily about whether the federal government had authority to ban slavery in the territories (the way that slavery had been forbidden in the Northwest territory, and by the Missouri compromise in parts of the Louisiana Purchase).

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").

[RJS1950]

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.

[Colonel Batguano]

--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.

[Stag_Man]

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.

[Colonel Batguano]

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.

[IronJack]

Its potency was forever crushed by the Union Army, and the destruction of the Old South.

And that little thing called the Thirteenth Amendment ...

[IronJack]

the modern "civil rights" movement is ballasted by 150-year old injustices long since put right.

Well said.

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.

[x]

It would legalize slavery everywhere in the Union.

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.

[yankeedame]

It was an attempt to prevent the country from falling apart by trying to satisfy Southern demands for Constitutional protections for slavery private property.

[Verginius Rufus]

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.

[PeaRidge]

The text you provide clearly does not support that interpretation. ("It would legalize slavery everywhere in the Union.")

Yes it does.

Here is The Corwin Amendment as it appears officially in Volume 12 of the Statutes at Large at page 251. Its text is as follows:

"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 service by the laws of said State."

So, the text is exactly as is in record, and your comment "text you provide clearly does not support that interpretation" is simply your opinion.

Congress adopted this proposal on March 2, 1861. It is substantively concerned with slavery. It proposes to protect slave states from congressional interference.

But it can rightly be considered an amendment to Article V of the US Constitution, because, if ratified, it would significantly and expressly have curtailed the federal amending power.

Moreover, as originally adopted, Article V of the US Constitution included an express limitation that prevented the abolition of slavery by amendment until 1808. The Corwin amendment would have renewed the limitation in perpetuity.

Link; http://www.earlham.edu/~peters/writing/psa/app1.htm

This would have sealed the Dred Scott decision, and allowed any slave owners to bring slaves into any state or territory. Ownership of slaves could not be prevented by the Federal government, and appeals higher than state courts would make slavery legal anywhere owners decided to take them.

[PeaRidge]

But, of course, you are diverting attention from the issue...your usual efforts at misdirection.

The issue: "If you are insinuating that the US Congress was working on freedom for slaves in 1861, sadly you are mistaken. Perhaps you have not heard of the Corwin Amendment to the US Constitution."

[The Old Hoosier]

Yeah, it does, today it's called ROE V WADE.

[Lewite]

Reply to post #2

You said it right. It has been over 100 years and those folks are still dragging their feet big time. Another 100 years of affirmative action and unlimited welfare will bring very little improvement at all. I think the secret word is character.