Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
Posted on 02/01/2017 4:52:50 AM PST by Homer_J_Simpson
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics" (1978)
The first sentence sticks out like a sore thumb today. The Court was concerned about a five-four decision and how it might damage the Court’s prestige. This concern is definitely a legacy of Chief Justice John Marshall. He sought to build consensus and on major issues have the Court “speak as a Court.”
After the decision of Roe v. Wade the Court became another political organ of government, and membership on the Court became a political process. The 5-4 split and its effect on Court prestige no longer seems to be a concern in a partisan and polarized Court.
Marshall’s philosophy had great merit and did much to create the prestige of the Court. Some of the most momentous decisions of the Court came when the Court “spoke as the Court” through a unanimous opinion written by the Chief Justice. Earl Warren knew that this had to be done in Brown v. Board of Education. Warren Burger knew this had to be done in United States v. Nixon, where the Court knew it was in effect removing a President from office. Nixon resigned two weeks after the decision. But this has not happened after Roe v. Wade.
The last time the Court needed to speak unanimously as a Court through an opinion by the Chief Justice was Bush v. Gore, where the Court selected the President of the United States. I will admit the circumstances of that case did not permit consensus building; the Court only had about 48 hours to craft an opinion before the Electors had to be certified. And that also contributed to a very poorly written set of opinions.
Another example of the political seduction of the law as Bork put it in his eloquent and readable masterpiece, “The Tempting of America”.
Why are you interpreting "should" as "shall"? I interpret the word "should" as indicating an option, not as indicating a requirement.
And how do you construe To prove [Tyranny over these States], let Facts be submitted to a candid world. D of I.
Again, this statement does not assert a requirement that facts must be submitted before independence is valid. The argument of the natural law philosophers of that era were that Men had a right to self governance, and they did not need a King to rule them. They could rule themselves.
For some reason, you are offering the argument that the US would not have had a right to independence if the King hadn't abused them. You are arguing that had the King been kind and benevolent, we would have no right to leave his authority.
The natural law right asserted by the Declaration is that men have a right to rule themselves, and do not have to obey a King, no matter how he treats them.
Read Samuel Rutherford's (Cited in the debates on the Constitution) "Lex Rex."
You I will simply skip.
So you're cherry-picking natural law right asserted by the Declaration which is why you don't like and apparently want to avoid the part of the D of I that says
- Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causesor
- To prove [Tyranny over these States], let Facts be submitted to a candid world.
Let us first concentrate our mental energies on this King question, and then we can consider other points after we have answered the King question.
Do men have a right to rule themselves, or must they submit to a King so long as he doesn't cause them grievances?
DL, we obviously disagree about this. You know what? That’s OK.
The point here is that evidence suggests I’m in agreement with the Founders and you are not.
Over and out.
The evidence suggests no such thing. The evidence I am currently seeing is that I have boxed you into a philosophical corner with a question you dare not answer.
If you say, "We must stay under the rule of a King who has not abused us." This will be an offensive position to pretty much everyone on this message board.
If you say "We have a right to self governance, even if a King has been benevolent to us." Then your "grievance" argument is totally debunked.
You are, as most Americans are, mentally invested in the idea that America had a right to be free of England, but you want to make this natural law right conditional on how badly the King of England treated us.
It is not. Men have a right to self govern and therefore they had an unconditional right to reject the Monarchy.
My recollection is that on the central point of whether Florida’s election rules violated the Equal Protection Clause the vote was 7-2. The 5-4 split was on the remedy; whether Floriduh should have yet another chance to get it right.
They are the ones that wrote and signed
- Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes
- To prove [Tyranny over these States], let Facts be submitted to a candid world.
No, they agree with me. I've read plenty of their writings, and certainly enough to know that the "grievances" was an effort to secure support in Europe. The founders themselves would have asserted the right to self government no matter what the King had done.
I suspect I am wasting my time. I suspect that your next message will be another iteration of "the founders agree with me!" followed by another iteration of the text you keep quoting.
James Otis goes straight to the point in his "The Rights of the British Colonists Asserted and Proved", but I suspect you will not read Otis, nor will you read Rutherford, nor will you read anything else I submit which blatantly contradicts your wrong headed idea.
As I said before, you simply want your own world view, and facts be D@mned.
Looks like you’re projecting there, DL. Your claim is opposed to the actual text of the D of I which you avoid acknowledging at all costs, much less address.
Fine couldn’t care less.
This discussion has reached its end. We’re done. Have a good day.
I've seen your quoted text over and over already. (argumentum ad nauseum) It is irrelevant. I don't address it because it doesn't matter. It has no bearing on the philosophical foundation of the Declaration of Independence.
You won't address the foundational premise of the declaration, so you divert attention with these irrelevant quotes. I am kicking myself for being so wrong in my initial perception of you. Had I known we can not even communicate in the same language, I would have skipped the attempt.
When you took offense at my pointing out that including slaves in the Declaration of Independence was a dishonest reading of the document, I should have realized right then that you were an irrational person.
I feel like Mr. Douglas in "Green Acres."
Bye.
Don’t call me, I’ll call you.
LOL
That was how the case turned out. But it was far from a clear opinion. Or set of opinions.
And something else they have conveniently forgotten: the Gore campaign sent an army of lawyers into every Florida county to protest any military absentee ballot not notarized, a requirement at that time. There was a lawsuit to declare that requirement unconstitutional that was dismissed as moot after Bush v. Gore. "Support the troops." Yeah, right.
I remember the MSM “recount” too. I always mention it when the election of 2000 comes up, and very few people know that tidbit. As bad as 0bama was, the catastrophe of a Gore presidency would have been far worse.
Don’t call me, I’ll call you.
You may march off the field of battle any time you like. I think I have already wrung out whatever value there is to be had in a discussion with you, and so it shall not bother me to discontinue it.
We don't speak the same English language, so I don't see any further point in attempting to communicate.
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