Skip to comments.Harvard re-examines Dred Scott decision
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.
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.
As the Constitution was written, they could not. The Founders, being great students of history, established our country in a manner similar to that of Rome, which had 3 different types of persons:.
Among the Romans, the libertini, or freedmen, were formerly distinguished by a threefold division. They, sometimes obtained what was called the greater liberty, thereby becoming Roman citizens. To this privilege, those who were enfranchised by testament, by the census, or by the vindicta, appear to have been alone admitted: sometimes they obtained the lesser liberty only, and became Latins; whose condition is thus described by Justinian: "They never enjoyed the right of succession [to estates] .... For although they led the lives of free men, yet, with their last breath they lost both their lives and liberties; for their possessions, like the goods of slaves, were detained by the manumittor."§ Sometimes they obtained only the inferior liberty, being called dedititii: such were slaves
St. George Tuckers VIEW OF THE CONSTITUTION OF THE UNITED STATES
libertini = freeman = State or civil citizen ONLY
Latins = denizen = naturalized citizen
dedititii = slave
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.
YES! Someone else knows the States were the ones with that authority. :-) A citizen of a State was considered a citizen of these United States, or a collective State citizen.
A citizen of the United States, or 'US citizen' is a federal citizen.
§ 1218. The inhabitants enjoy all their civil, religious, and political rights. They live substantially under the same laws, as at the time of the cession, such changes only having been made, as have been devised, and sought by themselves. They are not indeed citizens of any state, entitled to the privileges of such; but they are citizens of the United States. They have no immediate representatives in congress.
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.
Taney only pointed to the opportunity, it was the US Court that took it. Something they had no right to do.
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions
Look up “Aryan Nation”. That bunch’s IQs plus an equal gaggle of Dims would total to room temperature. The MSM like to point at them and tag the entire Right as Nazis. The fact that the NSDAP was socialist slips by these dim, sorry fetishists, what with them getting all sweaty about high boots and black leather. That there are only about 15 who aren’t in jail is a bonus.
Actually, the Nazis were socialists. The fringe groups of which you speak are too insignificant to be grouped along side of the left. Certainly they don’t support any traditional candidates on the right.
Well. You’re the first person I’ve seen claim that the US constitution made a distinction between real citizens and those with Latin Rights!
A naturalized American citizen is a citizen in every way a natural-born citizen American is. The single distinction is that the naturalized citizen is not eligible to be elected President. This is quite different from the Latin Rights citizens of Italy, who had many disabilities, most notably no franchise.
Your link is with regard to citizens of the United States resident in DC. Most of them, at the time written, presumably were born in one or other State. On leaving DC and moving to a State, they became citizens of that state as soon as they met the residency requirements.
Please explain how your link is relevant to whether Dred Scott, or any other black man, was forever incapable of being a citizen of the United States, now and for eternity.
Which is it?
(best Jewish mother accent): What? This is a choice?
The Declaration of Independence expressed the country’s aspirations. It was a glowing example of (somewhat overheated) rhetoric, among the greatest poetry ever written.
The Constitution, with the minor exceptions of the Preamble and the Bill of Rights, is an instruction manual for how to run the country’s machinery. It has almost nothing to say about what the country should DO with its machinery. It is generally as dry as dust and just about as tasty.
The two documents admirably serve two very different purposes. The French, OTOH, have generally insisted on mixing up their statement of aspirations with the machinery of government.
In the time we’ve had one Republic, they’ve had three monarchies, two Empires, a Consulate, a Commune and at least five Republics (depending on how you figure it).
I think the American system works better. :)
Do you believe in the sanctities (sic) right of private property in human beings?
"...Thus the rights of property are united with the rights of person and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property without due process of law.
"And an act of Congress which deprives a citizen of the United States of his liberty of property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the law, could hardly be dignified with the name of due process of law...
"It seems, however, to be supposed that there is a difference between property in a slave and other property and that different rules may be applied to it in expounding Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which governments may exercise over it, have been dwelt upon in the argument.
"But, in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their government and interfering with their relation to each other. The powers of the government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers and forbidden it to exercise others.
"It has no power over the person of property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen of jurists upon the relations of master and slave, can enlarge the powers of the government or take from the citizens the rights they have reserved.
"And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guaranties which have been provided for the protection of private property against the encroachments of the government."
(Bold mine --YD
That's a fair question. Yes, I do believe in the sanctities of private property. What constituted "private property" is open to debate, but the irrefutable fact was that, whether we in the dawn of the 21st century like it or not, in the middle of the 19th century, in the United States, human beings in a state of bondage were considered private property.
Absolutely. Each justice that voted yes on Roe should rend their robes in horror and repentance. Then maybe, just maybe, God’s wrath will lessen a bit. Otherwise, you think our society is immoral now? You have seen nothing. The Holy Spirit withdraws from the citizenship, and the wrath of God is seen throughout what is called NATURE. I was wondering why God had to use Moses to get the Israelites out of Egypt. Why did He just show up as a cloud and as fire? Why does God use earthquakes, drought, famine, war, plagues, disease? Where are our bees, why is the sun so hot? God created this world, like the vine over Jonah’s head when he was sent to Ninevah. What happened to the vine?
I have read the Bible only 7 times cover to cover and wonder where the Creator gives us rights. Can anyone tell me?
Perhaps I worded my question poorly. I am aware that slaves were considered property in 1857.
Do you believe, in a country that proclaims that all men are endowed by their Creator with a right to liberty, that anyone has a right to hold another in slavery? By “right” I mean the term in its truest sense, moral not legal.
I’m not asking whether some at the time believed in such a right, as it’s obvious they did. I’m asking whether you believe they were right to believe so.
> Im not asking whether some at the time believed in such
> a right, as its obvious they did. Im asking whether you
> believe they were right to believe so.
“Right” legally, or “right” morally?
It kind of brings us back to the question of whether the decision was wrongly decided or simply wrong morally.
Nobody has a right to do wrong.
My contention about the Scott decision being legally and factually wrong is not based on its ruling with regard to whether slavery is legal, but its power grab in claiming who had ever been or could ever be a citizen.
Nothing in the Constitution gave Congress or the Courts any such power.
The decision was factually incorrect, as black men had been and were full voting citizens at various places in the United States pretty much throughout the entire period from 1787 to 1857. The Court not only made this factually incorrect claim, it also claimed that black men could never become citizens of the US by either congressional or state action. I’d sure like somebody to point out the congressional clause that justified this decision.
> My contention about the Scott decision being legally and
> factually wrong is not based on its ruling with regard to
> whether slavery is legal, but its power grab in claiming
> who had ever been or could ever be a citizen.
And yet, the dissenters relied for their argument that a slave, removed from the jurisdiction of his slavery, became free on decisions of **European** courts, not American law.
Some folks around here get mighty upset when some current justices do things like that.
Perhaps we can agree on this, the reason Scott was a crappy, abominable decision is because in it the court stuck itself squarely in the middle of a question that was purposely constitutionally vague and politically charged. (Sounds like some other decisions one could name...)
Here’s a couple good articles about a book, “Dred Scott and the Problem of Constitutional Evil” that you may find interesting:
For freedom Christ has set us free; stand fast therefore, and do not submit again to a yoke of slavery.
You shall not kill.
My objection is to the majority's factually incorrect claim that blacks were not citizens of the US in 1784 and therefore could never become citizens. This was not in contention before the Court, but it chose to rule on the issue anyway. The first statement, that blacks were not citizens of the US in 1784, is just untrue. The second statement, based on the first, is therefore equally untrue.
This was all thrashed out at the time, and spelled out very plainly in Justice Curtis' dissent, which was just ignored by Taney and the majority.
it may safely be said that the citizens of the several States were citizens of the United States under the Confederation. To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina (!), though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
Also from Curtis’ dissent:
The Supreme Court of North Carolina, in the case of the State v. Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.
‘According to the laws of this State,’ says Judge Gaston, in delivering the opinion of the court, ‘all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native born British subjectsthose born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twentyone, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution.’
I disagree. It is an appropriate punishment for certain crimes, and is allowed for under the 5th Amendment following a trial and due process.
I agree. Impractical, in today’s world, but certainly not immoral when used as a punishment, as it was in the time of the Israelites.
Permanent (especially hereditary) involuntary servitude, in all parts of the world and at all times, is wrong.
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.
Marshall didn't make a 'power grab' in Marbury, -- as he agreed that the SCOTUS was also limited in its power by the Constitution in his conclusion.
-- It was later courts that misused & misinterpreted Marbury, -- and at various times both Congress & the Executive branches have 'gone along' with the SCOTUS grab; --- when it suited their purpose to make power grabs of their own. --
Even states have cooperated with such Court misinterpretations -- as California shows by its delight in being able to infringe on its citizens right to bear arms.
Not at all. Think "20 years of hard labor" or even a weekend picking up trash along roadsides. Those are both instances of involuntary servitude. I don't believe it moral to sell this service, however, as is done in Chinese prison labor. That changes it from punishment by a sanctioned societal authority to enslavement for profit.
And there is also the three-fifths compromise in the constitution which contradicts that statement too. (Not to mention voter qualifications in the early 19th century).
The full quote it: 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.
Note the absence of the franchise as one of Man's inalienable rights. The franchise was considered at the time to be a privilege, not a right.
I'm sure you're well aware that "the Constitution says a slave is 3/5 of a man" is a canard. The clause was inserted as a compromise between southerners, who wanted slaves counted equally with free men for purposes of determining representation (but not for voting!), and northerners, who didn't want slaves counted at all.
I guess this means slaveowners were more in favor of equality for blacks?
Hard labor may be a fitting punishment, but it is not very profitable in today’s economy. It never was all that profitable, if you counted in the cost of the guards and all.
Why? It was legal. In 1857 and for years and years before, and years afterwards.
Legality does not make something right or wrong. Abortion is legal.
and Kelo and CFR...
As bad as Kelo and CFR are, Dred Scott is far worse.
> Reference please.
“Indeed, in his dissent Justice John McLean agreed that citizens had substantive property rights protected by the Constitution: His dissent was instead based on the morally immense but legally narrow grounds that Dred Scott did not count as property, since a slave is not property beyond the operation of the local law which makes him such. (Even more embarrassing for originalists like Scalia who fulminate about the use of international law in American Supreme Court opinions, the dissenters arguments that slaves were not property relied heavily on decisions made by courts outside the United States. European courts had ruled that because slavery violated natural right, slaves immediately became free when they left jurisdictions where the institution was established by positive law.)”
(The 2nd earlier cited article, based on the book “Dred Scott and the Problem of Constitutional Evil”.)
Everyone agrees, I think, that Taney said things which were not true (especially with respect to the citizenship question). It’s equally true (from what I’ve read) that the dissenters’ opinions engaged in more than a tad of historical overreaching. To forgive them because their cause was just is tempting, but nonetheless smacks just a bit of hypocrisy.
The real problem in Dred Scott isn’t (imo) that the court muffed the decision. It’s that the Constitution and the founders down through the people and politicians of 1857 were not on the side of the angels on this question.
Haven’t read McLean’s decision yet, but Curtis’ didn’t seem to rely that heavily on foreign decisions. Although he did review them I don’t think he used them as precedent.
He did use common law, which was incorporated as the basic law of the state of Missouri shortly after it became a state.
In addition, French law was partially applicable, as it was used to some extent in the territories that were carved out of the LA Purchase, such as WI.
The most relevant point in his determination that Scott was no longer a slave, IMO, was that both the state of IL and the territory of WI had positive laws stating that the institution of slavery did not exist in those jurisdictions.
Once Scott entered these jurisdictions, his condition of slavery disappeared.
The only question then, according to Curtis, was to determine whether it “reactivated” on his return to Missouri. Curtis ruled that it did not.
If Scott could spend several years in a free state and territory and still be a slave, what would prevent a slave owner from moving 50 slaves to Ohio and setting up a plantation? I don’t see any logical reason why he couldn’t and I think lots of other free-soilers couldn’t either. Which is where, I think Taney and his felloow-conspirators over-reached.
This decision, and the Kansas-Nebraska Acts, IMHO, made the Civil War inevitable.
Jackson’s policy of resettling Indians was undertaken as much much for their protection as for the white settlers’. With their, uh...rather unneighborly behavior toward American citizens on the frontier, something had to be done, and nobody else had the guts to address the problem.
Come to think of it, we could sure use an Old Hickory today when it comes to immigration, “entitlements”, domestic spending, Islamofascism, the UN, EUrope, the Democreeps, the MSM...
(best Jewish father accent); Are your ears dirty?
Yes, it's a choice. Were you joking or do think Taney was correct in his constitutional reasoning?
If you were not joking (badly) I can only assume that you think Taney was correct and not motivated by politics or personal feelings.
BTW... here's a link to one of the dissenting opinions in case you need some help in understanding how Taney took judicial activism to a new level completly without regard to the word or intent of the constitution, or long established states rights that pre dated the constitution. Along with the Fugitive Slave Act, Scott was the biggest assault on States Rights that had ever occurred until that point in our history.
Frankly, I have never seen anyone defend the Scott decision. It was over the top judicial activism in any era. I'm amazed anyone would defend it, least of all someone on a Conservative forum.
The Cherokee had for the most part been allies of the Americans, notably in the Creek Wars.
They were quite civilized, more so than some of their white neighbors.
While your statement is not untrue of Indians in general, during the early 19th century the Cherokee were far more sinned against by whites, especially Georgians, than they were sinners.
Who said anything about making a profit? The object is punishment for a crime and deterrence of recidivism.
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