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Scalia criticizes Kelo ruling on private property
Chicago Daily Law Bulletin ^ | October 19, 2011 | Jerry Crimmins

Posted on 10/21/2011 5:23:13 AM PDT by 1010RD

U.S. Supreme Court Justice Antonin G. Scalia said Tuesday he does not believe the high court's "infamous" Kelo decision of 2005, which held that cities can take land from some residents with compensation and give it to others for economic development, will be lasting law.

"I do not think the Kelo decision is long for this world," Scalia said in a speech to Chicago-Kent College of Law.

He compared the court's decision in Kelo v. New London, Conn., No. 04-108, to the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution, and to the court's decision on abortion, Roe v. Wade.

The high court has made "many mistakes" in its 200 years, Scalia told the audience. But he said the court has made very few mistakes in political judgment that provoked overwhelming public resistance.

Regarding the abortion decision, Scalia said as an aside, "in the circles in which the justices traveled, abortion was considered no big deal."

But Kelo, Dred Scott and Roe v. Wade were the three cases he mentioned that he said provoked great, public resistance.

Some surveys show as much as 80 percent of the public opposes the Kelo decision, Scalia said.

He said he is not arguing that high court decisions should be based on public opinion.

His point instead, he said, was that "the form of analysis through which judges attempt to shape the Constitution" to what they consider the needs of society "are doomed to fail."

In answer to a question from the audience about the politicization of the U.S. Supreme Court, Scalia responded:

"The court has not been politicized. The process of selecting judges has become politicized."

This is because, Scalia said, the American public figured out that what the Supreme Court was doing with the theory of the "living Constitution" subscribed to by some justices was "rewriting the Constitution."

If justices intend to rewrite the Constitution, Scalia said, then the selection process for justices "ought to be politicized" and he would prefer that rather than allow the Constitution to be rewritten without interference.

Scalia addressed a full house in the Chicago-Kent auditorium as part of a half-day conference on "Judicial Takings: Property Rights and the Rule of Law."

He delivered a strong defense of property rights under the Constitution.

And he said the Fifth Amendment's prohibition against taking private property for public use without just compensation applies to judges as well as to legislatures and the executive branch.

Scalia's specific subject was the court's decision last year in Stop the Beach Renourishment Inc. v. the Florida Department of Environmental Protection. No. 08-1151.

As background, Scalia said, "the framers attached a good deal of importance to property rights, much more than most modern societies," including American society today.

The framers of the Constitution "would be astounded by the modern idea" in the U.S. "that substantive due process applies to life and liberty, but not property," he said.

In the Florida case, he said, the state of Florida decided to restore some beaches that had been eroded. The state intended to deposit new sand so that the beaches would extend 75 feet further into the ocean.

The state of Florida would own the new land created. The beachfront property owners would continue to own their land up to the mean high water line that existed before the state extended the beach.

Beachfront property owners sued on several grounds, including that the state was taking without just compensation their right to have their property touch the water.

The Florida Supreme Court held that the rights the petitioners claimed, including the right to have their property touch the water even after the beach was extended by the state, did not exist.

In an 8-0 decision, the high court ruled that Florida Supreme Court's action was not a violation of the "takings clause," Scalia said.

Justice John Paul Stevens, who owned beachfront property in Florida, recused himself.

But a much larger issue divided the high court in this same case, Scalia said, namely "whether judicial decrees are ever subject to the takings clause in the first place."

The Stop the Beach Renourishment decision was written by Scalia and concurred in by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

It held that judicial decisions are subject to the takings clause of the Fifth Amendment.

Four other justices, Anthony, M. Kennedy, Sonia M. Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg wrote in separate opinions that the plurality decision that judicial rulings were subject to the takings clause went too far and was unnecessary in the current case.

Scalia disagreed. "We didn't take the case to decide Florida law, for Pete's sake," he told the audience at Chicago-Kent.

"There is no excuse not to tackle that question head on. We need to know what judicial questions do violate the takings clause."

Scalia said he found the reasons given by four of his colleagues for "avoiding the key question" troubling.

Two of his colleagues argued, he said, apparently referring to Kennedy and Sotomayor, that when judges decide cases such as the Florida case, the controlling principle could be whether the seizure of property violates due process.

Scalia said he suspects that some justices want to make due process the controlling principle in such matters because that concept is "flabby" and creates "a reservoir of power" for judges in their decision-making.

It was in this vein that he criticized the high court's 2005 ruling in Kelo , in which Scalia dissented. He called that decision "infamous."

Chicago-Kent's Dean Harold J. Krent, who introduced Scalia, said every constitutional law course in America discusses Scalia's theory of constitutional interpretation. Krent said it was hard to think of another high court justice who has been so influential.

Scalia's appearance at the conference was hosted by Chicago-Kent in partnership with the Jack Miller Center, a nonpartisan, nonprofit foundation in Philadelphia "for teaching America's founding principles and history."


TOPICS: Constitution/Conservatism; Front Page News
KEYWORDS: constitution; donttreadonme; eminentdomain; govtabuse; kelo; lping; propertyrights; scalia; scotus; tyranny
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Every conservative should know about and understand the issues surrounding substantive due process.

It's the reason we must win in 2012.

1 posted on 10/21/2011 5:23:14 AM PDT by 1010RD
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To: 1010RD

Good point. Maybe Romney needs to have his feet held to the fire on the required judicial philosophy of potential SCOTUS appointments.


2 posted on 10/21/2011 5:27:15 AM PDT by Paladin2
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To: 1010RD

Why does he have to be so judgemental?


3 posted on 10/21/2011 5:28:37 AM PDT by Steely Tom (Obama goes on long after the thrill of Obama is gone)
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To: 1010RD
the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution.

It was worse than that. It held that people of African descent, slave or free, were not and never could be under the protection of the Constitution. That the Constitution itself excluded them, so no law of Congress could alter it. Presumably it would take an amendment to change this.

As it turned out, it took 640,000 dead Americans and several amendments to reverse the decision.

4 posted on 10/21/2011 5:30:21 AM PDT by Sherman Logan
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To: Steely Tom

Thanks for starting my day off with a good laugh.


5 posted on 10/21/2011 5:31:08 AM PDT by wolfpat (Not to know what has been transacted in former times is to be always a child. -- Cicero)
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To: 1010RD
How come no one ever asks Tough Tony about Article II, the definition of a "Natural Born Citizen," and why the Black-Robed Bum Kissers have taken every opportunity to escape and evade their constitutional duty to answer the properly presented question?

Yo, Tony, "What is a Natural Born Citizen?" Ask Thomas. Ask Alito. Ask Roberts. Get back to us on that, willya. Before the election?

6 posted on 10/21/2011 5:39:19 AM PDT by Kenny Bunk (Only homophobes and racists would object to a gay Kenyan Communist as President.)
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To: 1010RD

Kelo has to be the worst decision the Supreme court has made since Roe v Wade. The joke of it is that Stossel did a program a couple years ago to update us. There was some type of store that was going into this area. Well, the whole place is one big wasteland and the store never went up. Susette Kelo and her fellow homeowners were kicked out of their houses for nothing.


7 posted on 10/21/2011 5:45:55 AM PDT by Old Teufel Hunden
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To: 1010RD
Shout it out Scalia and don't forget this stupid decision.
8 posted on 10/21/2011 5:48:04 AM PDT by Tribune7 (If you demand perfection you will wind up with leftist Democrats)
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To: 1010RD
This article reminds me once again of an incident that I've never forgotten which occurred 50 years ago in a college political science seminar. Please understand the time is 1962 thereabouts and the seminar consisted of four professors and about five students. The subject for discussion was the necessity to a democratic society to sustain the right to hold property.

I was virtually alone in that environment defending the proposition that some of our rights contained in the Bill of Rights are not less crucial than other enumerated rights. I was not yet 20 years old and Barry Goldwater had not yet run for office, so I had nothing to go on except instinct, an inchoate even adolescent sense that property must somehow be defended not only against the mob but against the government. Somehow it was important to me to see that the right to hold and dispose of property was critical to the very fabric of society.

As I look back on that academic experience of half a century ago, it is uncanny how the issues that came up session after session presaged the assault by the left on our constitutional rights which proved unhappily very powerful during the ensuing decades.

We are all aware that the liberal impulse to impose obligatory health care on all of us, for example, goes back many decades. I believe the same is true over most of the Liberal assault on our basic liberties which has occurred since at least Woodrow Wilson.

Reflecting back over the decades on issue after issue, one is hard-pressed to believe that these matters are not somehow spread through a networking system-I deliberately refrain from using the word conspiracy-among academics, liberal politicians and the media to bring these things bubbling up to the surface. Today, due to technology and the splendid selfless service of Jim Robinson in creating this forum, we have our own instant reaction force to combat this insidious and relentless attack.

Finally, one can never forget the condescension with which these liberal academics not only dismissed but belittled every conservative position including a defense of the right to hold property.


9 posted on 10/21/2011 5:48:45 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: 1010RD

“ Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate non economic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

This is this black robed terrorists absolutely ridiculous reasoning to facilitate the continued failure of the War on some Drugs and some drug users in the Gonzales v. Reich case. “That could/might”? Are you kidding me! This was his pathetic attempt to rationalize government expansion in to areas of regulation that are totally un Constitutional, allowing the commerce clause to cover non interstate activity that had no commerce involved! Where in the commerce clause are the words “could/might’? They are not there. Next he will want to put people in jail who “could/might” commit a crime! This reasoning allows the federal government to regulate just about anything as elaborated by Justice Thomas in his dissent in the case. ”


10 posted on 10/21/2011 5:54:53 AM PDT by government is the beast (In the last century, an estimated 262 million people have been murderd by their own government)
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To: nathanbedford
Nate,

Your thoughts are summed up for me in one image that has been burned in my mind from the 1992 LA riots. I remember seeing all the idiot looters on the evening news and one Korean store owner on top of his boarded up store building with some type of automatic rifle defending his property against them. I remember thinking that is quintessentially American. A lone man, protecting his home and property from evil.

11 posted on 10/21/2011 5:58:19 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden
I remember that film clip well. I hope we don't come to it again.


12 posted on 10/21/2011 6:03:18 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: Sherman Logan
That's an important point.

Black people of African Descent were ruled to be sub-human, never worthy of the rights of full citizenship. And that ruling was supposed based in what Taney wrote was the original intention of the founders.

Chief Justice Roger B. Taney was also considered among the finest legal minds if not the the finest legal mind of that era.

The Dred Scott ruling caused the first and only resignation from the Supreme Court over principle. The Judge who resigned, Benjamin Robbins Curtis was also a fine legal reasoner. Justice Curtis was also the first Supreme Court Justice to have earned a law degree from a law school.

With Justice Scalia's remarks as reported, we now see that he, and likely other Justices at his level have come to realize that the courts and The Law (as code and process) are NEVER outside the sway of politics, and indeed that the selection of Judges properly considers politics!

13 posted on 10/21/2011 6:12:46 AM PDT by bvw
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To: Old Teufel Hunden
And another thing...

Those of us of a certain age or older will remember those times and the humiliation we Goldwater-ites sustained over and over in virtually every setting. With this in mind we understood immediately why Rush Limbaugh went to such absurd lengths to proclaim himself smarter than the Liberals and how he could operate with "half his brain tied behind his back just to make it fair."

My theory is that it was not respectable, indeed it was disreputable, to be a conservative in many circles, especially academic circles, for decades. To a large degree it remains so. Limbaugh knew he must compensate for the inevitable attempt by liberals to dismiss him as a clown. He was right to defend his image at every turn.

Would that George Bush was nearly as fastidious about protecting his own image and the image of a conservative president.


14 posted on 10/21/2011 6:13:02 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford

I don’t know how many times I have been harranged by progressives because they have told me that Jefferson put in the Declaration that we are endowed with the rights of life, liberty and the pursuit of happiness. Of course they always leave out the endowed by creator part. Be that as it may they go on to point out that he did not mention life, liberty and property. I remember reading somewhere that in his original draft it was life, liberty and property but Benjamin Franklin or someone revised it to say pursuit of happiness. It doesn’t matter because the 2nd, 3rd, 4th and 5th amendments of the BOR certainly have a penumbra of private property rights.

It is interesting that Thomas Paine (the only leader of the revolution progressives liked) seemed to believe that every man has a right to life, liberty and property. He helped write the Girondin constitutional project that was presented to the French National Convention in 1793. In it’s Declaration of Rights section, it says that man has a right to property. I always like to needle the left with this. Even though I know that Paine later on wrote of redistrubitive wealth policies. He was somewhat of a contridiction in my opinion.


15 posted on 10/21/2011 6:29:37 AM PDT by Old Teufel Hunden
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To: nathanbedford

In regards to post 14, it is always easier for the left to disregard their opponents as stupid, idiots etc.. That way they don’t have to engage them in substantive debate which they will most likely lose.


16 posted on 10/21/2011 6:32:28 AM PDT by Old Teufel Hunden
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To: 1010RD
I truly believe that the "Taking" of earners' money BASED ON LEVEL OF INCOME, is Un-Constitutional, myself.

How about the 14th Amendment's "equal treatment under the Law" clause, as penalizing success with a Progressive Income Tax surely was not the intent of the Framers, either?

We are now in a wealth-redistribution mode that has festered over the years, and the Government has become so bloated, so filled with Lawyers, and so filled with Activist Judges, that we CANNOT EXPECT the "Legal" system to decide anything, but for who gets what share of the spoils of a Court Case, and whose pockets will be lined with other people's money.

There truly is no "Justice" anymore.

We need to bring back lynching, tar and feathering, and community Justice.

17 posted on 10/21/2011 6:34:19 AM PDT by traditional1 ("Don't gotsta worry 'bout no mo'gage, don't gotsta worry 'bout no gas; Obama gonna take care o' me!)
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To: Paladin2
Good point. Maybe Romney needs to have his feet held to the fire on the required judicial philosophy of potential SCOTUS appointments.

This is a key issue with Romney and I've not seen very much discussion of it. GOP Presidents have too often squandered their opportunities to advance the constitutional cause via court appointments. We had a good run with W after a big scare but the next administration can really have an historic effect. Romney's record of judicial appointments in Mass was appalling. I believe he's weaker on this than even RomneyCare.

18 posted on 10/21/2011 6:56:23 AM PDT by Paine in the Neck (Where's he getting these ideas? He's not smart enough to be that stupid all by himself.)
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To: nathanbedford

“...property must somehow be defended not only against the mob but against the government...”

And now we are faced with the gruesome scenario that the mob IS the government, and the government IS the mob. Hard to tell them apart.


19 posted on 10/21/2011 7:04:41 AM PDT by NFHale (The Second Amendment - By Any Means Necessary.)
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To: Old Teufel Hunden; nathanbedford

“...quintessentially American. A lone man, protecting his home and property from evil...”

Not much different from the settler out west in the mid-1800s being attacked by savages is it; savages either in war paint, or cattle/horse thieves, or railroad enforcers looking to move people off “the right of way”.

The LA riots were a small picture of what would happen if the SCOTUS removed our feckless Marxist from his perch. I think that is the reason why they have ducked and dodged the issue, preferring instead to let the election process remove him.

But what happens if he refuses to go? I guess we’ll see...


20 posted on 10/21/2011 7:10:17 AM PDT by NFHale (The Second Amendment - By Any Means Necessary.)
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To: government is the beast
"Next he will want to put people in jail who “could/might” commit a crime!"

Yeah! Like driving while intoxicated.

21 posted on 10/21/2011 8:21:11 AM PDT by misterwhite
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To: bvw
"Black people of African Descent were ruled to be sub-human, never worthy of the rights of full citizenship."

In Dred Scott I believe slaves were ruled to be property. It makes no sense to extend rights to property.

22 posted on 10/21/2011 8:26:28 AM PDT by misterwhite
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To: traditional1
"How about the 14th Amendment's "equal treatment under the Law" clause, as penalizing success with a Progressive Income Tax surely was not the intent of the Framers, either?"

True. What if a store charged "the rich" more for a loaf of bread because "they can afford it"?

Even with a Flat Tax the rich pay more (in actual dollars), yet they receive the exact same services as those who pay less.

23 posted on 10/21/2011 8:31:15 AM PDT by misterwhite
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To: misterwhite

Oh? Why is that? What do you mean by “property”?

Best if you quote Taney and build from his actual wording.


24 posted on 10/21/2011 8:43:23 AM PDT by bvw
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To: NFHale
Well said.


25 posted on 10/21/2011 9:05:36 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: bvw
"Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident."
-- Mr. Chief Justice Taney, Scott v. Sandford

Chief Justice Taney repeatedly refers to slaves as "property" in his decision, never once referring to them as sub-humans. Where did you find your "ruling" that they were?

26 posted on 10/21/2011 9:22:34 AM PDT by misterwhite
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To: 1010RD

The idea that a city or county can forcibly take away your land and give it to 7-Eleven because they’ll pay more taxes is insane.


27 posted on 10/21/2011 9:45:30 AM PDT by GeronL (The Right to Life came before the Right to Happiness)
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To: bvw
Chief Justice Roger B. Taney was also considered among the finest legal minds if not the the finest legal mind of that era.

This is true. Which just goes to show that brilliance is less than worthless when employed in a bad cause.

The Scott decision, as pointed out by the dissenters, ignores historical fact and obviously applicable legal principles to reach a predetermined decision.

As has been widely noted, in this it is much like the Roe v Wade decision.

28 posted on 10/21/2011 9:49:47 AM PDT by Sherman Logan
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To: misterwhite
The most important aspect of the Scott decision was that it ruled people of African descent, whether slave or free were not and never could become citizens of the United States.

That is very different from just viewing slaves as property. It was an attempt to embed racism into the Constitution itself, which had never mentioned the subject. Or for that matter, slavery itself. The Founders very carefully referred to the institution with euphemisms rather than pollute a document enshrining freedom with the word slave.

29 posted on 10/21/2011 10:16:03 AM PDT by Sherman Logan
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To: misterwhite
Chief Justice Taney repeatedly refers to slaves as "property" in his decision, never once referring to them as sub-humans. Where did you find your "ruling" that they were?

Taney was quite correct, under the law at the time, to recognize that slaves were property. This was just a fact.

Where he went off the tracks was in expanding his ruling from the legal status of particular individuals to the legal status of an entire racial group.

He ruled that ALL persons of African descent (whether slave or free) were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

While he doesn't use the term "sub-human," which had probably not been invented yet, he certainly got the concept across quite nicely.

It difficult to see how his definition of the status of "Africans" differs from the Nazi definition of the status of Jews or Slavs.

30 posted on 10/21/2011 10:27:42 AM PDT by Sherman Logan
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To: misterwhite
In your quote Taney used the term "property of this kind", elsewhere he, or the bill, uses "property". It is unclear whether Taney means that property as established by terms contract, or real property. Real property is properly owned by actual physical holding free of challenge, for example land, for another example, a blanket. Or for a more pertinent example: breedable farm livestock, like a cow or chicken.

Contract is another form of property, an idea form, where the bounds are established in word or custom. Examples are the title to specified parcel of land, or a contract to supply a hundred blankets at a certain place by a certain day. Or more pertinent form in this case: a contract for labor, like those a Major League Baseball team owner gives to a star player, or any player for that matter.

Contracts are negotiable, contestable. When the terms are vague, unspecified, or problematic a contract is more contestable in court than a battle over real property. With real property, the great presumption goes to the holder of that property.

For example, two students come before a teacher at recess. Each claim an abandoned ball that was found in the play lot. Johnny holds the ball. Billy claims he saw the ball first. Proper ruling: Johnny keeps the ball.

Slavery is, to say properly, under natural law, a form of contract created property. The Slave may be held, sure, uncontested by other claimants to ownership of the right to hold him as slave but what when the slave himself challenges that contract?

To enforce the fugitive slave laws, Taney finds that a African negro slave is a form of REAL property, that is not a man able to bring claims before a court like any other man. And to make that African negro slave such a form of real property Taney recasts the original intent of the framers of the Constitution so that any African negro (or descendant) is banned from sharing in that part of the basic rights of men. Thus, by Taney's reasoning, they are not full men. An African negro and descendants are subhumans, not full humans due all the privileges of natural law. In the Declaration of Independence the Founders affirm "All men are created equal", but Taney's logic removes African negros from that word "men".

In his ruling Taney asks:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?
We see that in that set-up question Taney at first limits who he means, and what he means. In the commentary of the ruling he makes that clearer. He is, at first, talking only of those who were themselves slaves when brought here or descended from those brought here in slavery. And he is talking only of the rights due to citizens.

Yet Taney goes on beyond those barriers:

We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
There's no getting around it. The reasoning Taney applies is that the FOUNDERS considered African negros to be "a subordinate and inferior class of beings", of a race inferior to the "dominant race". Subhumans.

Real property, like some cow or chicken.

A sad, tragic ruling.

31 posted on 10/21/2011 10:37:23 AM PDT by bvw
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To: Sherman Logan
Brilliance is still brilliance, even when used to the bad.

Never negate or diminish the necessity of GOOD to triumph over EVIL. If evil is done by the brilliant, good must be done by becoming even more brilliant, or compelling them by other means to use their brilliance, or harvesting the fruits of that evil brilliance for the good somehow.

This is where Lao Tze when wrong when he advised "slaughter the talented", and similar sage advice, imo.

Instead consider a wiser sages advice:

He who gathers crops in summer is a prudent son,
but he who sleeps during harvest is a disgraceful son

--Solomon


32 posted on 10/21/2011 10:57:22 AM PDT by bvw
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To: Sherman Logan
"It was an attempt to embed racism into the Constitution itself, which had never mentioned the subject."

More like the Constitution did not preclude it.

Taney ruled that freed slaves could be citizens of their state, but the states had no power to make them citizens of the United States. That took a constitutional amendment.

33 posted on 10/21/2011 11:45:35 AM PDT by misterwhite
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To: bvw
"In your quote Taney used the term "property of this kind"

He was discussing slaves, so I assumed that's what he meant (real property).

"There's no getting around it. The reasoning Taney applies is that the FOUNDERS considered African negros to be "a subordinate and inferior class of beings", of a race inferior to the "dominant race".

This was merely a part of his reasoning. He was ruling out the possibility that African negros could have been U.S. citizens from the get-go.

"A sad, tragic ruling."

True, as disgusting as it was, the ruling followed the law and the U.S. Constitution. Even Taney admits in the ruling, "It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution."

When Pilate saw that he could prevail nothing, but that rather a tumult was made, he took water, and washed his hands before the multitude, saying, I am innocent of the blood of this just person: see ye to it.
-- Matthew 27:24

34 posted on 10/21/2011 12:02:06 PM PDT by misterwhite
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To: bvw
If evil is done by the brilliant, good must be done by becoming even more brilliant, or compelling them by other means to use their brilliance, or harvesting the fruits of that evil brilliance for the good somehow.

Unfortunately, sometimes force is required to overcome brilliance in the service of evil.

Or, to paraphrase Lincoln, "Let us pray that right makes might."

35 posted on 10/21/2011 12:29:16 PM PDT by Sherman Logan
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To: misterwhite
True, as disgusting as it was, the ruling followed the law and the U.S. Constitution.

Nope. The ruling was in error, as can be easily seen by reading the two dissents.

In quite a few of the states at the time of the Constitutional Convention, free blacks were full citizens, complete with voting rights. So when the Preamble refers to "We the people of the United States," it includes those free blacks in those states. Though, to be fair, it did not include slaves or free blacks in the states that did not consider free blacks citizens.

Taney just ignores these facts and proclaims what he thinks the Founders meant, deciding quite without a shred of evidence that when they said, "We the people of the United States," they really meant "We the people of the Unites States, except of course for any people who have African ancestry."

The Founders were not idiots. Had they intended to say any such thing, they certainly could have done so. It is the height of arrogance for Taney, or anyone else, to determine decades after the fact what they really meant to say.

In essence, Taney was proclaiming a "living Constitution," one that needed to "move with the times," and keep up with modern (southern) opinion.

36 posted on 10/21/2011 12:38:41 PM PDT by Sherman Logan
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To: misterwhite
The ruling followed the law and the U.S. Constitution.

No it did not.

Because for his logic in Dred Scott v Sandford to follow the Law and the U.S. Constitution, Taney had to recast certain predicate as to what law and the US Constitution meant, and also what was the proper role of the Court in adjudicating them. In that last he motive he was joined by many Justices on the Supreme Court in the courts since the second one, the Marshall Court.

When Taney wrote:

The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution.
He did so claiming an impossible perfection, or rather more likely a deliberate imperfection, in understanding what "those who framed the Constitution" meant. What was that? That African negros were subhuman, and because of that subhuman status not treated like the white European descendants of those who came here as slaves, for slavery for both blacks and whites in the 1600's was for a term, and not lifetime slavery.

Taney ignored too the predominant and victorious (the ones that inspired most the victory of the Revolution) natural law understandings of the colonial and founding period, that "all men are created equal", that no race was subhuman, no race was inferior to the point of being absent from the rights of the rest of men.

In other words, Taney mocked the Law, by disregarding its foundations.

And he did so with great pride in his work, an overwhelming arrogance that appears in instance as words you quoted:

It is not the province of the court to decide upon the justice or injustice
Such disclaimer gave full reign to his wanton recasting of the Founder's intents in the Constitution regarding citizenship, and to his mocking of the foundations of natural law, the basis of our America common law.

From time immemorial the courts exist ONLY to provide for justice and to correct of limit injustice. They operate within the framing of laws, and established custom in law, but within that framework they must decide upon the justice or injustice.

When judges and courts become mere idlers, decisionless functionaries stamping out rulings according to pat formulas of law, tyranny leaps in and civil strife, civil war, follows. Judges, like Juries, are to apply facts, law and process to produce a just result.

They intercede between the mechanical crushing forces of any statute or regulation no matter how well crafted, inspired, or intentioned and the actual human reality! That is their duty.

37 posted on 10/21/2011 1:15:02 PM PDT by bvw
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To: Sherman Logan
"In quite a few of the states at the time of the Constitutional Convention, free blacks were full citizens, complete with voting rights."

So we're clear, Taney was referring to Africans who were slaves at the time, who were slaves then were freed, or who were descendants of slaves.

In response to your statement, I'm sure there were some free blacks who were citizens of their state complete with voting rights. But they were not citizens of the United States (according to Taney).

At the time of the Constitutional Convention, the phrase "the people" had a specific meaning. It did not mean all persons or even all citizens. It referred to those who were full citizens -- those who could vote, run for any office, and who owned land (rich, white, adult male citizens). This excluded women, children, slaves, foreigners, and visitors.

"The people" were in charge and they had the most to lose. The U.S. Constitution was written for them (unless specified otherwise).

38 posted on 10/21/2011 1:22:12 PM PDT by misterwhite
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To: bvw
"In other words, Taney mocked the Law, by disregarding its foundations."

Not at all. He was honoring the intent of the Founders as to who were citizens. He added that it was not within his power to correct injustices and that any correction belonged to the political or lawmaking power.

"They operate within the framing of laws, and established custom in law, but within that framework they must decide upon the justice or injustice."

He was. Bear in mind that it took a constitutional amendment to end slavery, to make slaves citizens of the United States, and to give blacks (and women) the right to vote.

Nowadays, the courts wouldn't bother and would simply decree it. Which is how we end up with Kelo, Roe v Wade, the Kansas City school system, and all the other mistakes made by activist courts "correcting injustices" on their own.

39 posted on 10/21/2011 1:34:32 PM PDT by misterwhite
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To: misterwhite
He was honoring the intent of the Founders as to who were citizens ... He added that it was not within his power to correct injustices and that any correction belonged to the political or lawmaking power.

He misstated the intent of the Founders, and their respect for the Natural Laws of Nature's Creator. As those Founders summarized those intents applicable in this case,

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
It was in his power to set Justice aright for Dred Scott and his family. Taney refused.

The lawmaking power does NOT include the power to take away "unalienable Rights". The government and the courts exist for what purpose? According to the Founders:

... to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
But what happens when the government makes laws or enforces the laws in ways that impair or remove the natural rights of men? The Founders spoke to dealing with that circumstance too:
-- whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it
That is a court, judge or jury, acting in their role as agents of the people do have the right to alter severe injustice. That is especially so in the Supreme Court.

Remember that the courts, judge or jury, and officials whose role is to investigate and possibly bring charges against defendants, also have the role of interpose between sometimes harsh and unyielding interpretation of statute law.

40 posted on 10/21/2011 2:13:22 PM PDT by bvw
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To: bvw
It is the role of the justice system to enforce the constitutional laws passed by the legislature. It is not the role of the courts to rewrite the laws with which they disagree.

At the time of the Dred Scott decision, slaves were considered property and treated as such. The 14th amendment, not any court, made them citizens of the United States.

41 posted on 10/21/2011 3:38:41 PM PDT by misterwhite
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To: misterwhite
But they were not citizens of the United States (according to Taney).

Oh, I agree with that. I just believe Taney was wrong in this belief.

It referred to those who were full citizens -- those who could vote, run for any office, and who owned land (rich, white, adult male citizens). This excluded women, children, slaves, foreigners, and visitors.

One of the numerous problems with Taney's theory is that "the people" changed quite significantly between the 1780s and the 1850s, as the states expanded the franchise to include all white males. This was apparently just dandy with him.

So, states can legitimately, accordingly to Taney, change the definition of a "full citizen of the United States" in some ways but not in other ways. There is absolutely no justification for this distinction in the Constitution or in statute or common law. But Taney finds one, apparently because he is offended by the prospect of Africans as citizens and equals.

A much greater mind than mine has addressed the issue is considerable detail. Let me refer you to the man who led the successful fight against this iniquitous decision.

http://teachingamericanhistory.org/library/index.asp?documentprint=52

42 posted on 10/22/2011 4:34:02 AM PDT by Sherman Logan
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To: Sherman Logan
To activate the link: Speech on the Dred Scott Decision, Abraham Lincoln, June 26, 1857, Speech at Springfield, Illinois

Wonderful speech, but Lincoln too was a man of his time. In that time, per the very words of his speech, while he was fiercely opposed to slavery, and equally a proponent of equal rights of citizenship for blacks, for all men whatever origin, yet he was a segregationist.

The Founders were not, and Lincoln's own retelling of our founding history regarding black and white people and its comparison to that of his own time, is telling. Fully integrated communities existed in America and in the Americas in the colonial era and onward. But as America the nation approached the times of Lincoln and Douglas, such communities in it became rarer. What is the reason for that dynamic? Compare us say to Cuba of the same era -- a similarly developed place in that era. Yet in Cuba racial intermingling was far more common. The social structure of Cuba of that era was similar to our south, racial intermingling was socially discouraged and there came to be laws against intermarriage. Yet the races still mixed. The social situation in Puerto Rico was less stratified, almost half the population was of racially mixed parentage. The major difference was slavery.

It was the growth of plantation slavery in America which drove racial segregation, even in those states that had abolished slavery. Even Lincoln, the great man and great intellect he was, could not avoid being poisoned by it.

43 posted on 10/22/2011 6:52:58 PM PDT by bvw
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To: Sherman Logan

To expand and revise a part of that last:

It was the growth of plantation slavery in America which drove racial segregation. That growth of an enslaved, ill educated, people absent of well-formed family was not only toxic to those directly caught in it, it was hobbling to all.

There simply were not enough free blacks in the population to undo the damage the common perception of enslaved, broken, blacks caused. In Puerto Rico there were many free blacks, and the image of enslaved, ill-educated, broken blacks never took hold as the cultural image of any black.

This is why a man like Herman Cain is SO MUCH a necessity of our time, as an example, perhaps.


44 posted on 10/22/2011 7:00:45 PM PDT by bvw
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To: bvw

Interesting comments.

As far as Cuba goes, extensive black slavery didn’t really get going till about 1800, when the sugar industry began its development as a replacement for falling production in Haiti.

I don’t think you can blame the low status of blacks in America vs. Cuba on the plantation system, since this system was even more widespread in Cuba than in southern states. The state with demographics closest to that of Cuba was probably SC.

In a perverse sense, I wonder whether the Declaration of Independence may have had some perverse contribution to the decline in status of blacks after independence that you mention.

In Spanish Cuba whites were superior to blacks, but nobody was really free by American standards, and black/white and slave/free were just two of the many gradations of status from a field hand to the Viceroy. Nobody was equal.

In US, the Declaration says all men are equal, but black slaves obviously were not equal. This is the only significant status difference in the entire country, contrasting with the multiple legal status variables in Cuba.

There are two logical ways to deal with this contradiction.

One can decide that therefore slavery is wrong and should be eliminated, allowing all to be equal. The route chose by the abolitionists and (eventually) the North.

Or one can line up with Calhoun, Taney and Stephens and decide that since all men are equal and blacks aren’t equal they must not really be men. Or, in Taney’s terms, they aren’t “people.”

BTW, blacks (using US definition) are somewhere between 30% and 60% of the Cuban population, depending on which statistics you believe. Discrimination against blacks is a good deal more common than the Cuban government and US media will admit.


45 posted on 10/23/2011 2:24:02 AM PDT by Sherman Logan
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To: Sherman Logan
"So, states can legitimately, accordingly to Taney, change the definition of a "full citizen of the United States" in some ways but not in other ways."

Dred Scott was decided before the slavery amendments (13th, 14th and 15th) were passed. At the time of the decision, slaves were property.

Now, a state which abolished slavery could make freed slaves citizens of that state, but states had no power to make them citizens of the United States -- that power was reserved to the federal government.

Consequently, a free slave who traveled out of his state had no rights. The 14th amendment was passed, making the slave a "citizen of the United states" with limited rights (defined in later court cases) which were applicable in all the states.

"http://teachingamericanhistory.org/library/index.asp?documentprint=52"

Your link contains the words of Abrahan Lincoln discussing the sacredness of the U.S. Constitution which he believed protected the rights of negros. This, coming from a man who a) suspended habeas corpus, b) did not believe in the constitutional right of the states to secede from the Union, and c) was against mixed-marriage (that's too much equality, I guess).

46 posted on 10/23/2011 6:41:14 AM PDT by misterwhite
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To: Sherman Logan
"In US, the Declaration says all men are equal, but black slaves obviously were not equal."

Neither were women and children -- and they were citizens! Even today we deny the right to vote and the right to bear arms to felons.

(And I believe the phrase is, "all men are created equal". The U.S. Constitution was created to define which, and whose, rights would be protected.)

47 posted on 10/23/2011 6:52:07 AM PDT by misterwhite
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To: misterwhite
The U.S. Constitution was created to define which, and whose, rights would be protected.

That IS an interesting theory. The Constitution was not written to codify and systematize the exercise of the rights proclaimed in the Declaration. It was rather written to decide whose rights, as defined in the Declaration, would be limited or removed.

One of the many problems with this theory is that the Constitution did NOT say the rights it documented for "the people" did not include people of African ancestry. Taney's attempt to "read this into" the text notwithstanding, the Constitution is not a racist document.

Although, to be fair, it is likely every single one of those who signed it were racists by today's standards.

48 posted on 10/23/2011 7:10:54 AM PDT by Sherman Logan
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To: Sherman Logan
"One of the many problems with this theory is that the Constitution did NOT say the rights it documented for "the people" did not include people of African ancestry."

Well, no. It did not specifically exclude people of African ancestry. Nor did it specifically exclude women and children. But those groups were excluded.

For example, Article I, Section 2 reads (in part):

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ..."

Chosen by "the people". Not "the inhabitants", not "the persons", not even "the citizens". The people.

Who voted in 1787? It varied a little from state to state but basically they were white, adult, male citizen landowners. Those were "the people" with full rights. They were the ones who had something to lose.

Granted, since that time and with the addition of several amendments, the definition of "the people" now includes women and all races. But this gives us an insight as to who the Founders were protecting.

49 posted on 10/23/2011 7:56:18 AM PDT by misterwhite
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To: misterwhite
Who voted in 1787? It varied a little from state to state but basically they were white, adult, male citizen landowners.

True, in general. However, in at least 5 states blacks had the legal right to vote in 1787.

What Taney did was to go back in history and retroactively exclude those, admittedly few in number, voters from "the People" who established the Constitution. It was not an exercise of states' rights, it was a denial of those rights. He said that regardless of what individual states did, Africans were not and never could become citizens of the United States.

This was not only morally wrong, it was historically inaccurate. When Taney didn't like the facts, he just ignored them.

50 posted on 10/23/2011 8:08:00 AM PDT by Sherman Logan
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