Not going to argue with Dred Scott, for certain. There have been some bad ones over the years, encompassing many different areas of law. I hadn't even heard of Wickard until I took Con Law in law school, and when I read it my reaction was basically "horrified". It was at that point I realized the Commerce Clause was completely out of control. Obviously this is a gay marriage thread and I am not trying to turn the discussion, but for just bad decisions in general I always found Wickard one to be one of the worst. The Affordable Care Act may end up being at the top when it's all said and done, but that remains to be seen.
This gay marriage stuff should be left to the states, in my opinion, and federal judges should just stay out of it. Then again, they should stay out of a lot of stuff.
Last I checked Utah wasn’t allowed to become a state unless they outlawed polygamy. Leaving the definition of marriage up to the states isn’t acceptable. Marriage is a fundamental moral, legal and social construct that defines the character and boundaries of an entire society at the most basic level. Nevermind the legal chaos that ensues as people move from state-to-state where a marriage in one state may not be recognized in another.
We are now paying the price for not seeking a constitutional amendment defining marriage years ago when we had a chance of passing it. The MTV-ified, more atheistic younger generations replace the dying traditional-minded folk more every day. A resurgence in traditional and Christian values is not out of the question in the years to come, but it becomes more of an uphill battle every day.
When one realizes that the commerce clause, in its entirety, reads as To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
, that the interstate-commerce is held at the same level (and same authority) as foreign commerce — then one realizes that what we have (esp with the War on Drugs) in federal regulation is nothing less than Treason.
See, if the federal government were to try the same regulation on foreign nations as it does on the states (which at this point includes intrastate commerce and non-commerce) it would be nothing less than the declaration of war; the enforcement [or attempt thereof] ]would be the waging of war.
So, that such are enforced on the states is proof that war is-being/has-been waged on the several states.
Having read some of the Dred Scott ruling I couldent help but notice how dispute the racist rectoric and undertone of the judges.
The essence of the ruling, that the Federal Government has not the power to end a man’s enslavement by virtue of his presence in a Federal territory, was as sound as the presumption that slaves were property.
I’m not saying that slavery was right or that men could justly be regarded as property of other men, but that was the legal presumption of the time.
And with that presumption what Dredd Scott could no more obtain his freedom from his residence in a Federal territory than your presence in a Federal territory can automatically force you to give up your car.
A state is of course an entirely different matter and if Dredd Scott knew what he was doing he would have made his case in Illinois where the laws would and could have in fact freed him not suffering from the same 5th amendment disability that Washington and by extension all its territory(whom Washington governs directly) suffer from.
Of course the military might have thrown a Fit as the only reason his master was in that state was due to military service, but Illinois could have just rightly pointed out that he had no obligation to bring with him his slaves to a state where their captivity was illegal.
This in my opinion is the key failing of Dred Scott, not so much the ruling itself which I think on technical grounds was correct but the form & substance of the case was poorly chosen on the part of Dred Scott.