Continued from March 4 (reply #14).
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
Posted on 03/01/2017 5:02:55 AM PST by Homer_J_Simpson
Continued from March 4 (reply #14).
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
Abraham Lincoln reacts to the Dred Scott decision, but first we have to catch up with what he has been doing for the past year. This excerpt starts back on June 19, 1856 (reply #25) .
David Herbert Donald, Lincoln
Gerg. So much to read, so little time ...
Maybe I can pull it up on my phone at the stable later. I hate reading on my phone.
Pretending bewilderment, he sauntered up to a neighbor, "Stranger, do you know where Lincoln lives?" he asked. "He used to live here."
What a delightful anecdote showing Lincoln's seemingly ever-present sense of humor. Makes me want to read more about him. Witty and down-to-earth.
[Lincoln felt the respect for the law and for the judicial process] offered a standard of rationality badly needed in a society threatened, on one hand, by the unreasoning populism of the Democrats, who believed the majority was always right, and he equally unreasonable moral absolutism of reformers like the abolitionists, who appealed to a higher law than even the Constitution. As recently as the 1856 campaign he had invoked the judiciary as the ultimate arbitrator of disputes over slavery
Unfortunately, Lincoln's insight into the unreasonableness of prevailing views on the left and the Right took him no further than to see the Supreme Court as the "standard of rationality". At this point he fell short of recognizing the Constitution was the legal standard of rationality over the federal government including the Supreme Court.
[After re-thinking the Dred Scott decision (guess I'm not the only one to have done that) Lincoln never again gave] deference to the ruling of the Supreme Court
Lincoln seems to have made significant advances in recognizing it is not the rule of man but the rule of law of the Constitution that is the ultimate legal standard. I don't know about "deference" (I think the presumption should be in the Court's favor), but I think this was a beneficial outcome for Lincoln, that he stopped giving automatic capitation to the integrity and accuracy of the Court.
During the War, Taney did not go South and stayed in Washington. By the time of his death, both sides were disgusted with him.
Due process is simply a procedural requirement of notice and a fair hearing by any tribunal hearing a case.
[T]he 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. Scott v. Sanford, p 540. https://www.law.cornell.edu/supremecourt/text/60/393#writing-USSC_CR_0060_0393_ZO
Taney is quoting the guarantee of due process of the fifth amendment. But in his next sentence he does something else.
And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. (Id.)
Here, Taney "transforms this requirement of fair procedures into a rule about the allowable substance of a statute." Robert Bork, The Tempting of America 31 (1990).
"This was the first appearance in American constitutional law of the concept of 'substantive due process.'" Id.
"[T]here is simply no avoiding the fact that he word that follows 'due' is 'process'" Id 32.
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
In the early days of the republic Supreme Court opinions were not even printed or saved by the government. If any were printed, it was by private parties with an interest in such things. Those opinions were not, after all, laws. They were merely opinions in individual court cases. Nothing more.
The writer you quote concerning Dred Scott perhaps was among the number who have been fooled into giving court opinions the status of laws, a destructive fallacy that in our day has permeated almost all political minds throughout the country.
No need to agonize over Dred Scott, and its illogical, immoral convolutions. The bottom line is that the court unreasonably, arbitrarily, dehumanized, depersonified a human being, based on nothing more than their ethnic heritage and the pigment in their skin.
Ignore it. It was illicit. It was illegitimate. By every principle of western civilization, going all the way back to Cicero, such things are legal nullities. In other words, legally, they do not exist. Treat them accordingly.
“…The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
— Abraham Lincoln, First Inaugural Address
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”
— Thomas Jefferson, Letter to William Jarvis, Sept. 28, 1820
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
— Thomas Jefferson, Letter to Abigail Adams, September 11, 1804
“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
— Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819
“One single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.”
— Thomas Jefferson, Letter to Edward Livingston, March 25, 1825
"Whatever may be the force of the decision of the Supreme Court in binding the parties and settling their rights in the particular case before them, I am not prepared to admit that a construction given to the constitution by the Supreme Court in deciding any one or more cases fixes of itself irrevokably [sic] and permanently its construction in that particular and binds the states and the Legislative and executive branches of the General government, forever afterwards to conform to it and adopt it in every other case as the true reading of the instrument although all of them may unite in believing it erroneous."
Of course we should all know by now that the Attorney General for President Andrew Jackson who spoke those words was Roger B. Taney.
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
The Diary of George Templeton Strong, Edited by Allan Nevins and Milton Halsey Thomas
Is this the Trinity Church near the Battery on Broadway, within viewing distance of Ground Zero?
I think so. Broadway at Wall Street (near George Strong’s law office).
https://en.wikipedia.org/wiki/Trinity_Church_(Manhattan)
Very interesting stuff about the college!
There was a talk at my church last night by a priest of the Paulist order. He mentioned that his order was founded in New York in 1857 or 1858. I wonder if Mr. Strong, as a general observer of the scene, will bring up anything relevant.
Fr. James said the Paulists split from the Redemptorists because (those who became) the Paulists were giving public lectures to Protestants, while the Redemptorist leadership wanted them to concentrate on educating immigrant Catholics.
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
It is amazing to me that not that long ago in historic time serious people and the highest court in the United States were having these discussions about a human being. It certainly supports the argument that the institution of slavery dehumanized its proponents too.
When it comes to unconstitutional SCOTUS decisions, we need more of that, but accompanied by a published constitutionally-based rationale as to why the ruling was ignored.
Continued from February 25 (reply #187).
Nicole Etcheson, Bleeding Kansas: Contested Liberty in the Civil War Era
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