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.
History ping
"It's important for us to appreciate what we were in 1857 to better understand what we are today," he added.
The slavery situation in 1857 was wrong. But in terms of our country being a republic (not a democracy), justice, rights, and responsibility -- I would say the this country was doing more right in 1857 than we are today.
Oh, and I don't think Dred Scott was the "moral low point" of the Supreme Court. That, clearly, was Roe v Wade.
This is the previous time the Supremes declared as property something that was clearly human, it wasn’t animal, vegetable, or mineral.
I leave it to your discerning analysis which other time they’ve done the same thing. We all know how the Dred Scott fiasco was resolved, I pray the other isn’t resoved the same way.
I would say that the "big 3" moral low points for SCOTUS have been Dred Scott, Plessy v. Ferguson and Roe v. Wade. However, the true culprit has always been and always will be Marbury v. Madison, because this is the vehicle that the Supreme Court used to usurp powers that it is clearly not given in the Constitution and from this has come their unconstitutional authority to adjudicate new law.
Somehow, I don’t see the girly-men on the left fighting very hard for “women’s rights.” If there is to be a Civil War over abortion, I don’t see it lasting very long.
I doubt that the author can find those words in the Constitution since they are of course in the Declaration of Independence but not in the Constitution.
As usual, libs don't let "feelings" get in the way of facts. which they like to make up as they go...
It would be more accurate to say that the country in 1857 was severely divided over these principles, with some wanting to ditch them and others trying to keep them.
The Dred Scott decision and the Kansas/Nebraska acts were the primary issues leading to the birth of the GOP.
Touchy feely drama seven generations afterward do not speak to the laws and precedents of the early to mid 19th century. I would rather not defend the Dred Scott decision but it certainly was correct under the laws as they stood at the time. Hence the need for the 13th, 14th and 15th amendments to the constitution, to provide the legal foundation for the new order.
Does the mean the Democrats will not get around to issuing their long overdue apology for being the party of slavery before and during the Civil War, and the party of Jim Crow and racial segregation afterwards?
Actually it looks like the error (about “all men are created equal” being a phrase from the Constitution) was introduced by the reporter who wrote the article. The very next paragraph quotes Taney referring (correctly) to “this declaration.”
Now that you have brought up the Civil War, it is only a matter of time before the moonbat rednecks show up to point out that Lincoln was worse than Hitler.
The Scott decision was wrong even at the time, as it claimed blacks had never been and never could be citizens of the United States.
In fact, blacks had at various times been full citizens of various states, including at the time when the Constitution was implemented and at the time of the Scott decision.
Thus the decision was based on factual errors. There was also nothing in the Constitution at the time giving the Court, or Congress for that matter, the right to decide who was and was not a citizen of the United States, with exception of immigration laws. 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.
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.
It is interesting that all the southern demands leading up to the war required expansion of federal power: federal protection for those taking slaves into the territories, federal enforcement in the states of the fugitive slave laws, federal determination of who was or was not a citizen of the United States.
Some things never change.
The fly in that ointment is that the left is likely to be, or certainly could be. in charge of the military at that moment. My 60's vintage Model 70 Winchester isn't the best weapon to put up against a squad of soldiers using modern military arms.
RoK
The Declaration of Independence is one of the founding documents of our nation, and is frequently quoted in Supreme Court and other federal court decisions.
It certainly illustrates the intent of our Founding Fathers, and is used in that regard.
The words aren't in the Constitution, you are correct, but the sentiment certainly is. I could probably cite you a hundred passages enforcing the idea that all men are created legally equal in the Constitution, even before the passage of the 14th Amendment (which obviously was not an issue in D. Scott).
Most legal critics, as opposed to social critics, of Scott v Sanford point to Taney's decision to go well beyond what was needed. He could simply have asked his brethren to declare that as a slave Scott had no standing to come before the Court. Or he could have turned to the prior decision in 1850 that such cases of itinerant slaves would be decided by the courts of the state of origin. In this case Missouri. But Taney was searching for a final act that would end the legislative standoff over slavery and, in his view, allow the government to get on with other business.
While an act of judicial activism Taney's decision was an upholder of states' rights. Only Congress could deny a slaveowner of his property and only on tterritory governed by Congress. Massachussetts was as free to declare slavery anathema on its soil as Alabama was to embrace it.
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