Posted on 04/09/2007 7:08:03 AM PDT by presidio9
A century and a half after the Supreme Court ruled in the Dred Scott decision that no black — slave or free — could ever become a U.S. citizen, the case's legacy is still being debated.
The fallout from the 1857 decision, which helped spark the Civil War, was the subject of a mock re-hearing of the case before a 10-member court led by Supreme Court Justice Stephen Breyer at Harvard Law School on Saturday.
While the decision, issued by Chief Justice Roger B. Taney, is almost universally seen as the moral low point of the court's history, participants in the mock hearing said the case still had a lot to say to the country 150 years later.
Former Whitewater prosecutor Kenneth Starr said the case has a lesson for judges. Besides being racist and morally bankrupt, the Dred Scott decision also reflected the arrogance of judges like Taney, who tried to elevate themselves over the U.S. Constitution, he said.
"This is an enduring lesson — this isn't just a history lesson — for judges including of course justices of our Supreme Court to be humble, because Chief Justice Taney was anything but humble," Starr said. "Quite apart from its immorality as a matter of natural justice and fairness, it also showed the arrogance on the part of the Supreme Court."
In the ruling, Taney wrote that since the country's founding, blacks had been "bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made."
Even more troubling for many, was Taney's dismissal of the promise of the Constitution that "all men are created equal."
"It is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration," Taney, a former slave owner, wrote at the time.
Breyer said the case raises not just legal and ethical questions, but practical questions for justices involved in thorny moral legal cases.
"For me it immediately raises the question as a judge: How do you talk to other judges and persuade them about matters where you really think they're going to do something quite wrong?" Breyer said. "Do you talk only on a technical level?"
"Or," he added, "do you just go around perhaps saying through your words and voices, 'This is a real horror?'"
The decision is both a history lesson and a cautionary tale, according to John Payton, another lawyer participating in the mock hearing. It shows how far the country has come from its slave-holding past, but can also shed a light on lingering racism and other aftereffects of the decision, he said.
"The United States today uses the highest principles that we're all familiar with — democracy, justice, rights and responsibility — but that's not what the country was in 1857," Payton said.
"It's important for us to appreciate what we were in 1857 to better understand what we are today," he added.
History ping
"It's important for us to appreciate what we were in 1857 to better understand what we are today," he added.
The slavery situation in 1857 was wrong. But in terms of our country being a republic (not a democracy), justice, rights, and responsibility -- I would say the this country was doing more right in 1857 than we are today.
Oh, and I don't think Dred Scott was the "moral low point" of the Supreme Court. That, clearly, was Roe v Wade.
This is the previous time the Supremes declared as property something that was clearly human, it wasn’t animal, vegetable, or mineral.
I leave it to your discerning analysis which other time they’ve done the same thing. We all know how the Dred Scott fiasco was resolved, I pray the other isn’t resoved the same way.
I would say that the "big 3" moral low points for SCOTUS have been Dred Scott, Plessy v. Ferguson and Roe v. Wade. However, the true culprit has always been and always will be Marbury v. Madison, because this is the vehicle that the Supreme Court used to usurp powers that it is clearly not given in the Constitution and from this has come their unconstitutional authority to adjudicate new law.
Somehow, I don’t see the girly-men on the left fighting very hard for “women’s rights.” If there is to be a Civil War over abortion, I don’t see it lasting very long.
I doubt that the author can find those words in the Constitution since they are of course in the Declaration of Independence but not in the Constitution.
As usual, libs don't let "feelings" get in the way of facts. which they like to make up as they go...
It would be more accurate to say that the country in 1857 was severely divided over these principles, with some wanting to ditch them and others trying to keep them.
The Dred Scott decision and the Kansas/Nebraska acts were the primary issues leading to the birth of the GOP.
Touchy feely drama seven generations afterward do not speak to the laws and precedents of the early to mid 19th century. I would rather not defend the Dred Scott decision but it certainly was correct under the laws as they stood at the time. Hence the need for the 13th, 14th and 15th amendments to the constitution, to provide the legal foundation for the new order.
Does the mean the Democrats will not get around to issuing their long overdue apology for being the party of slavery before and during the Civil War, and the party of Jim Crow and racial segregation afterwards?
Actually it looks like the error (about “all men are created equal” being a phrase from the Constitution) was introduced by the reporter who wrote the article. The very next paragraph quotes Taney referring (correctly) to “this declaration.”
Now that you have brought up the Civil War, it is only a matter of time before the moonbat rednecks show up to point out that Lincoln was worse than Hitler.
The Scott decision was wrong even at the time, as it claimed blacks had never been and never could be citizens of the United States.
In fact, blacks had at various times been full citizens of various states, including at the time when the Constitution was implemented and at the time of the Scott decision.
Thus the decision was based on factual errors. There was also nothing in the Constitution at the time giving the Court, or Congress for that matter, the right to decide who was and was not a citizen of the United States, with exception of immigration laws. That power, with regard to persons born in the US, had previously been left to the States, with a citizen of a State automatically considered a citizen of the United States.
Taney arrogated to the Court not only the right to decide who was a citizen as of 1857, but who could EVER be a citizen. This rather breathtaking assumption of power to the federal government is amazing in those who theoretically supported states’ rights.
It is interesting that all the southern demands leading up to the war required expansion of federal power: federal protection for those taking slaves into the territories, federal enforcement in the states of the fugitive slave laws, federal determination of who was or was not a citizen of the United States.
Some things never change.
The fly in that ointment is that the left is likely to be, or certainly could be. in charge of the military at that moment. My 60's vintage Model 70 Winchester isn't the best weapon to put up against a squad of soldiers using modern military arms.
RoK
The Declaration of Independence is one of the founding documents of our nation, and is frequently quoted in Supreme Court and other federal court decisions.
It certainly illustrates the intent of our Founding Fathers, and is used in that regard.
The words aren't in the Constitution, you are correct, but the sentiment certainly is. I could probably cite you a hundred passages enforcing the idea that all men are created legally equal in the Constitution, even before the passage of the 14th Amendment (which obviously was not an issue in D. Scott).
Most legal critics, as opposed to social critics, of Scott v Sanford point to Taney's decision to go well beyond what was needed. He could simply have asked his brethren to declare that as a slave Scott had no standing to come before the Court. Or he could have turned to the prior decision in 1850 that such cases of itinerant slaves would be decided by the courts of the state of origin. In this case Missouri. But Taney was searching for a final act that would end the legislative standoff over slavery and, in his view, allow the government to get on with other business.
While an act of judicial activism Taney's decision was an upholder of states' rights. Only Congress could deny a slaveowner of his property and only on tterritory governed by Congress. Massachussetts was as free to declare slavery anathema on its soil as Alabama was to embrace it.
If it came to a Civil War, most of the members of our military would be on the side of the Right, regardless of who was in power. Robert E. Lee was as honorable a man as West Point and this country ever produced, but that didn't keep him from refusing a Union comission.
Why? It was legal. In 1857 and for years and years before, and years afterwards.
"For me it immediately raises the question as a judge: How do you talk to other judges and persuade them about matters where you really think they're going to do something quite wrong?" Breyer said. "Do you talk only on a technical level?"
Taney did not rely on the "technical level" at all, but made a decision that would be popular with at least one very large interest group. His decision was not influenced by the word or intent of the Constitution, but instead by what would satisfy his personal views --- exactly the same modus that Breyer and the other liberals on the Court have used in recent years.
I see Taney as an activist and Breyer has followed in his footsteps. No doubt, both with "Good Intentions" based on their view of what the law 'should be' to satisify their political and social views.
That 150 years later we all say that Taney's views were wrong entirely misses the point. A large number of people at the time agreed with Taney (just as a large number agree with Breyer today) and didn't really care that he overstepped his authority and ignored the intent of the Constitution.
The point is that in 1857 or today, what the law "should be" is not the province of a judge to decide. Making law from the bench is not what judges should do. Making law is up to the people through their representatives in Congress.
I meant morally wrong. You’re arguing from a legalistic viewpoint.
You can’t be serious. Abortion is legal today. It is also wrong. Involuntary servitude, in all parts of the world and at all times, is wrong.
The Declaration of Independence was written and signed by the Second Continental Congress, a war appropriations body. The US Constitution was written and signed by the Confederation Congress, a legislative body. Furthermore, the US Constitution was ratified by the legislatures of all thirteen original states. The Declaration of Independence was not. The Declaration is the only positive thing that I have to say about Thomas Jefferson, but in terms of legal precedent and philosophy, it is entirely irrelevant.
The people who brought the lawsuit could have collected money to free Dred and Harriet, and set them free years before 1857. They were trying to make a point, which backfired.
Fortunately, despite losing the lawsuit, Dred and Harriet did get their freedom not long afterwards.
The only real force the Leftists have is LEOs in SWAT teams. Since they rely on the enemy being one stoner with a .25 Raven, trapped in a trailer, a squad of high-power shooters, Ex-Marines, Viet Nam vets, with Remington 40X and Pre-64 Model 70s, M1As, AR-15s, in open country would... well... I know which way I would bet.
Large metro areas are easy to blockade and starve out easily. How long would Manhattan, or Chicago last, if you cut off the food and power supplies? They would be dining on rats and miniature poodles in a month.
And there we have it: something can be "morally wrong" and still be legal. Remember: We do not have courts of justice. We have courts of law.
And in 1857, under the law, slavery was legal. Period. And that, in a round about way, is what the court in Dred Scott grappled with -- was it legal or no; not was it right or wrong.
Yes. Those who believe in the sanctities of private property. The same sort of folk who get their feathers ruffled over the current eminent domain imbroglio.
I hope that you are either making a bad joke or you are completly ignorant of what it was that Taney ruled.
Which is it?
What part of “The slavery situation in 1857 was wrong.” is hard for you to understand?
Why stop at the Civil War? After the Civil War, your ancestors wouldn't have been slaves, but they wouldn't have been anything like full citizens of a Republic either. They couldn't vote, couldn't get elected to office, if charged with a crime they couldn't get a fair trial, they couldn't use public facilities and they couldn't hold meaningful gainful employment. If the US, because of slavery, wasn't a Republic before the war, what made it a Republic after the war?
Enoch Powell strongly believed that America was more of an enemy to the UK than Nazi Germany or Tojo's Japan. Do you agree with that assessment?
True, and worth noting.
The odds that you might have been one of the many slave owners who were also black is probably not all that high.
Strangely, I don’t see in this article much discussion on whether, on the basis of the law at the time, the case was decided _wrongly_. Seems to only be concerned that the “wrong” decision was arrived at (from our point of view 150 years later).
Raymann, be advised that ClearCase’s “Enoch Powell is right” tagline is a British white supremacist slogan, referring to Powell’s opposition to the Race Relations Act, which criminalized discrimination in the UK in housing and some sectors of employment on the basis of race. Apparently, ClearCase is saying that such discrimination should be allowed.
Actually, my tagline refers to this:
In the United Kingdom, particularly in England, "Enoch was right" is a phrase of political rhetoric, employed generally by the far right, inviting comparison of aspects of contemporary English society with predictions made by Powell in the Rivers of Blood speech. The phrase implies criticism of immigration and multiculturalism.
The Rivers of Blood speech was delivered in 1968. I like the speech and I agree with most of its content. I feel no compulsion to adopt whatever views he may have had on WWII-era dictators.
and Kelo and CFR...
They should read Lincoln’s Cooper Union remakes on the Supreme Court and Dred Scott....Dred Scott was a classic case judicial activism and Lincoln nail it to the wall with pure logic
Dred Scott was a classic case of judicial activism so loved by the left IE the court found things in the Constitution never put their by the writer of the Constitution
Lincoln nailed it and the court to the wall with clear logic
The Rivers of Blood speech was made in opposition to the Race Relations Act, an anti-discrimination law. Are you saying you support racial discrimination in housing and employment? Because outlawing that is what the Race Relations Act did.
In the US, the civil rights movement (in many respects a good thing) staged sit-ins at lunch counters. Black people would sit in an establishment that did not want them as customers.
Now, whose rights do we care about? The black people weren't starving. They had choices in where they got they're food. But the lunch counter owner had saved up his money, purchased a restaurant, and tried to set rules for the business that he owned. He didn't have a lot of choices. The lunch-counter was his only business. He had that, or he had nothing. But he was told he had no rights. His property wasn't really his property. Nope. He had to serve anyone that walked in through the door and he couldn't turn people away. He didn't have that right. His property wasn't so much his property, it was a "public accomodation".
I disagree with that. Property Rights were traded so that black people could sit at lunch counters. Did the black people gain so much? Or did we all lose a lot by losing control over our personal property?
Now, a smart businessman will serve anyone who comes in through the door. But the issue isn't "Is discimination a smart business practice?" It isn't. It's a dumb business practice. The question is how much control should the government have over your home or your business?
I vote for less government control.
AMEN! I've said for a long time, including here on FR, that Marbury v. Madison was the High Court's first major anti-Constitutional power grab.
If only we had more presidents like Jackson, who said "[Chief Justice] Marshall has made his decision; now let him enforce it!"
That would shut up those self-anointed judicial priest-kings for awhile...
My take on the Supreme Court is that is was designed as a check on the other branches. With lifetime appointments, it was supposed to check the political considerations inherent in the other two branches. Dred Scott proved that the Supreme Court could just as easily put politics above the Constitution as the other two branches. In fact the Dred Scott case not exposes tthe political nature of the court it serves as a humiliating reminder to the Court that it is not superior to other branches but equal. And there will be times when each branch is dominated by political ninnies of the worst sort, the only difference is the boys and girls with the robes cannot be voted out of office, they leave office either in a box or in an advanced state of senility. The Supreme Court is simply another very political branch of government, but much more dangerous because it was designed in ways that were supposed to insulate it somewhat from political considerations which the Dred Scott Case and RoevWade show was a folly although it may have been a folly with the most noble of intent.
Could you please give us some specific examples of the “anti Semitr right” that you speak of?
Welcome to Scalia's world dickhead, when he has to talk to you!
Much of the problem, of course, was that Southern states didn't just allow segregation, they required it. Plessy was about a Louisiana law that forbade private railroads from establishing integrated cars.
Many of the restaurant owners to whom you refer may have wanted for business or moral reasons to integrate, but Jim Crow prohibited it.
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