“Given that Judicial Review is not a power given to the Court by the Constitution, and given the hash that the Court made in Dred Scot, the fact that the Court was not forever disgraced, it has become a tool whereby the national elite can avoid the political process.”
I remember reading Dred Scot and coming away with a completely different understanding of the ruling than the radical republicans took in driving their party to power.
For example I don’t see how the judge was saying African Americans could never be citizens as many radical republicans claimed. When I read the ruling it seemed quite obvious to me that all judge was saying(in a racist manner) was that The territory in which Dred Scot was living and claiming had freed him from bondage by virtue of being a anti-slavery territory, was in fact incapable of doing so to the Fifth Amendment due process clause.
That actually makes sense to me, because if you assume that slaves are property as was the assumption at the time then freeing them from their owner on the grounds that they were illegal would constitute a due process violation.
What Dred Scot should have done was make his case in the State of Illinois which suffered no such disability, and in which he had also resided with his master.
Instead the ruling was misconstrued by political hacks wishing to build a political party out of the rage of the anti-slavery movement. By implying the ruling was more signification than it was. If anything the ruling merely implied that Washington could not ban slavery in its territories.
The due process clause in the Bill of Rights applies only to the federal courts. Taney was of course operating in the context of the fugitive slave law which had strengthened the rights of slave owners. The rights of slave ownership varied state by state, even in the South, and many of the northern states no longer recognized it. But when I say the Court made a hash of it, I meant the terms of Taneys opinion. his obiter dicta. He was trying to settle a political issue in court.