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.
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.
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.
Yes, the Trail of Tears was indeed a red-letter-day in our nation's history. Truely this nation owes Andrew Jackson a debt of gratitude.
Of course, it didn't really turn out that way, did it? Government got more powerful. Sure, the power was expressed differently, and in a "better" way. But still, government power was (and is) used to mandate social situations in the US. Affirmative Action is just one example where, if the skin-color of the participants is not pleasing to the politicians, then the full power of the federal government can be brought to bear on the transgressors.
That may (perhaps) be better than Jim Crow. But it's not all that different, really. I just think that less government intervention would have allowed citizens and businesses to make their own decisions. Government solutions are rarely good solutions.
The US has by-and-large imposed government solutions to our problems with race relations. How well do you think has turned out?
I generally agree that, political rights aside, government is a poor way to achieve racial harmony. My point is simply that Jim Crow was a disaster precisely because it was government intervention, on the side of mandatory segregation.
I should add that I oppose the anti-discrimination laws of the 1960s and beyond for the same reasons I would object to Jim Crow. Both are immoral and unwise restrictions on other people’s property rights.
Sounds like you and I agree.
In many instances, it was not the business owner who objected to serving blacks. Quite often, it was local government ordinances that prohibited him from serving blacks or fear of reprisal by white customers or hoodlums for doing so.
His property was not "his property" in those cases either.
Woolworths was the classic example where most of the "Lunch Counter" sit-ins took place. It was a nationwide chain department stores, and across the country, North and South, blacks were welcomed to spend their money in their stores on clothing, housewares or anything they wanted to buy including at the lunch counter in most of the country. Only in some areas did Woolworths refuse to serve blacks at lunch counters and only because of local laws or pressures from the community. It was not something that the "owners" chose to do. They were forced to discriminate in those stores.
About as well as any government imposed solution works, but in the case of racial discrimination the condition today is vastly imporved from that of 50 years ago.
I've heard this argued by those that don't like some of the SCOTUS decisions, particularly Mark Levin, but Alexander Hamilton clearly states this to be a responsibility of the court in the Federalist Paper 78.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
This IS THE founding paragraph of the country. It should also be the metaphysical and moral compass that guides us. The most forgotten word of this document is in the title: unanimous. This is why A. Lincoln said four "Four score and seven years ago . . ", not three score and sixteen.
Dred Scot was a disaster precisely because the court sided with the compromises that the Constitution made with slavery instead of the moral foundation of the Constitution that is found in the Declaration.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.