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.
"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"
The Corwin Amendment was, in its own way, no different from clauses in the Confederate Constitution which established slavery in the confederacy and ensured the central government could not interfere with it.
Not in the least. The Corwin Amendment barred Congress from creating any amendment to alter the patterns of slave ownership. The Confederate Constitution made no such limitations.
And your resort to your usual tactics of misquotes, exaggerations, and out-and-out falsehoods to perpetuate the southron myth. And then get all huffy when you get called on it.
Get used to it.
Then the obvious question is what does one have to do with the other?
You conveniently forget the above court case, don't you?
What, Scott v Sandford? No, I didn't forget it. I actually read it. Congress could not ban the movement of slaves into the territory but nowhere does Taney imply that states could not ban or restrict it.
Not in the least. The Corwin Amendment barred Congress from creating any amendment to alter the patterns of slave ownership. The Confederate Constitution made no such limitations.
On the contrary, the confederate constitution did not allow the confederate congress to pass any legislation impairing the ownership of slaves. The confederate constitution also required the congress, on the demand of any three states, to summon a convention of all states to consider constitutional amendments. So you are presented with a contradiction. In order to amend the constitution to prevent slavery, the confederate congress would have to call a convention of the states. But that same constitution forbids the congress from taking any actions that impair the right of property in slaves. What takes preference? A nice question for a confederate supreme court, had there been such a body that is.
Now, who is the blithering idiot?
You meant to direct that to x, didn't you?
Does anyone else here remember a call into the Rush Limbaugh show (while Walter Williams was host) by a guy who proclaimed that the Dredd-Scott decision was what confirmed the freedom of slaves?
Mark
Because you won't refute it? Or because you can't?
First I've seen this thread. Thanks for the APB.
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