Posted on 03/06/2018 9:17:29 AM PST by Bull Snipe
Chief Justice of the Supreme Court Roger Tanney issues the verdict in the case Scott V. Sanford, aka the "Dred Scott Decision" The court finds that Scott cannot sue in Fedreal court for his freedom because, as a slave, he is not a citizen of the United States and therefore lacks standing to sue. That addresses the specific issue before the Court. However Tanney goes further in his decision. -Not only is Scott not a U.S. Citizen, there is no Constitutionally legal path for Scott or any slave to become a U.S. Citizen. -The Federal Government has no Constitutional authority to interfere with slavery in any state where slavery is legal. -The Federal Government must enforce the 1850 Fugitive Slave Act. -The Missouri Compromise is Unconstitutional.
Some consider the Dred Scott Decision to be the worst decision ever rendered by the Supreme Court
You guys have made great points - we need to examine this ratification controversy in more detail!
The Cooper Union address was 1860, three years AFTER Dred Scott. Further, it is an opinion paper and does not have the weight of law.
There are those, myself among them, who would say there is no ratification controversy. It was passed out of the Senate in April 1864 and the House in January 1865. It was ratified by the states - including Virginia, Louisiana, Tennessee, Arkansas, South Carolina, North Carolina, Arkansas, and Georgia - and became part of the Constitution on December 18, 1865. Those Southern states had to have active legislatures if they ratified the amendment.
And pronounced Tawney.
ML/NJ
There is some question on how much weight in law the Dred Scott decision actually had. In his decision, Chief Justice Taney declares that as a slave Dred Scott had no recourse in the courts since he was property and not a citizen. Having declared that right off the bat, the strict matter of the case was decided. Only statements crucial to the case at hand - the ratio decidendi - are binding as legal precedent. Anything after that - no Congressional right to limit slavery, no citizenship for blacks, all the rest - are statements made in passing, or obiter dictum, and not binding in law.
Had the rebellion not interfered you could count on the Republicans challenging all the aspects of the Taney decision in the courts.
One thing about this decision, it listed what rights citizens of the US had.
Dred Scott vs Sanford.
What the SCOTUS thought about gun control in the pre Civil War era.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0060_0393_ZO.html
It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished;
and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs,
and to KEEP AND CARRY ARMS wherever they went.
That was the 14th. See: here
ML/NJ
Uh, no.
Only those strange people in Carroll County pronounce it so in their town name “Tawneytown”. Never could figure out why.
Never mind linguistically it indeed should be TAAA-nee.
“The Cooper Union address was 1860, three years AFTER Dred Scott. Further, it is an opinion paper and does not have the weight of law.”
An opinion paper? Your study of history is sorely lacking.
The Dred Scott decision was based on citizenship of the United States. Which of the three branches of government are given exclusive and unrestricted authority over the rules of naturalization?
The answer - Congress (Article I, section 8, clause 4)
Reminder that Congress had not made a provision for a method of a slave to become a US citizen. Some states had but those state laws were not binding on Congress and are inferior to the authority enumerated to Congress.
As to the congress not having the power to restrict slavery ... well also in the context of the times, another way to frame the question is: Does Congress have the authority to force a citizen to give up their property without just compensation when that citizen crosses a state line? In other words, can a state take your property and not compensate you for that loss?
Consider the last part of the 5th amendment: ... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
However, I would point out that even if the speech was enacted into law word for word, it would come AFTER the Dred Scott ruling and would of course, fall outside of my stated position regarding Dred Scott being in alignment with the laws at the time of the ruling.
I used to attend classes at my kids' colleges. I have several books about Taney and the Dred Scott Decisions and chose one time to sit in on a class at my son's school (an Ivy) regarding the decision. The professor there corrected my pronunciation (which was the way it is spelled). Since then I've heard other scholars pronounce it Tawney so I presume that this is correct.
[Not so different from Chownings Tavern in Williamsburg, Va. For years the folks there pronounced it as one would expect from the spelling. Back in 1997 when I visited, they called it Choonings. When I inquired about this, they said they were corrected by a member of the Chownings family.]
ML/NJ
"there is no Constitutionally legal path for Scott or any slave to become a U.S. Citizen"
About that, I think he is wrong. Manumitted slaves did become citizens in several states. In those days, the states could make anyone a citizen if they so wished.
Not in an actual legitimate or lawful fashion. It would have been impossible to pass it in a lawful manner, so they cheated.
I disagree. The matter before the court was whether Scott was free or a slave. Before Taney went running down the citizenship rabbit hole he tackled that question, and ruled that Scott was and always had been a slave and as such he had no recourse in the courts. Having done so he could have, and probably should have, ended his decision right there. Instead he let lose with a whole litany of issues he held for a long time, none of which were central to the case.
There is nothing in the constitution that said this. He was reaching to make that claim.
Or that Congress did not have the power to restrict slavery in the territories?
That is implicit in Article IV, section 2.
That's a reach as well.
“[The 13th] it was just DECLARED ratified
That was the 14th. See: here
ML/NJ”
You are RIGHT. My mistake. The 14th Amendment Controversy is HERE:
The 14th Amendment Never Passed
By Moses E. Washington
revised on 6/1/2003
Disclaimer
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What we now call the 14th amendment to the U.S. Constitution is the most controversial
amendment that has ever been proposed. We will see that it’s proposal and ratification
process was fraught with irregularities and unconstitutional actions.
In order to provide historical background for the period in question, let’s review some
events that occurred after the Civil War ended. In May, 1865, President Andrew Johnson
issued a Proclamation of Amnesty for former southern rebels. This action was in keeping
with President Lincoln’s wishes to heal the nation. He established provisional
governments in each of the southern states. The states were instructed to call
constitutional conventions in order to form new governments. Each southern state formed
new governments and elected new representatives and government officers. At that time,
only white men had the right to vote since the 15th amendment which established equal
voting rights had not yet been passed. Senators and Representatives for U.S. Congress
were also chosen. These representatives were refused admission when they appear at the
opening of Congress. The various southern state governments continued to function
during 1866.
Before an amendment can be ratified, it must first be proposed. The Constitution provides
two methods of proposing an amendment: by two thirds of the states or by two thirds of
both houses of Congress1
. The congressional method was used in the case of the 14th
amendment. The section of the Constitution that discusses amendments states: “no state
without its consent, shall be deprived of its equal suffrage in the Senate.”2
When
Congress proposed the amendment, twenty-three Senators were unlawfully excluded
1
U.S. Constitution, Article 5
2
ibid.
from the U. S. Senate, in order to secure a two thirds vote for the adoption of proposed
amendment. Those excluded included both senators from eleven southern states and one
Senator from New Jersey. This alone is sufficient to invalidate the so-called fourteenth
because it was never properly proposed.
When an amendment is proposed by the Congress, it must be “ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths …”3
When the
proposed amendment was sent to the states for ratification, there were thirty-seven states
in the Union. This means that ratification required the approval of twenty-eight states.
Said another way, it would only take ten states rejecting the amendment to defeat it.
The proposed 14th amendment was sent to the states for ratification in June of 1866. By
March 1867, twenty states had ratified and thirteen had rejected the proposed
amendment. This means that the amendment failed.
These totals do not include the actions of Tennessee, which is generally regarded as
ratifying the proposed amendment. The Tennessee legislature was not in session when
the proposed amendment was sent, so a special session of the legislature had to be called.
The Tennessee Senate ratified the proposed amendment. However, the Tennessee House
could not assemble a quorum as required in order to legally act. Finally, after several
days and “considerable effort, two of the recalcitrant members were arrested and brought
into a committee room opening into the Chamber of the House. They refused to vote
when their names were called, whereupon the Speaker ruled that there was no quorum.
His decision, however, was overruled, and the amendment was declared ratified on July
19, 1866, by a vote of 43 to 11, the two members under arrest in the adjoining committee
room not voting.”4
After learning that the proposed amendment’s failure, the U.S. Congress passed the
Reconstruction Act of March 2, 1867. This act overthrow and annul this existing state
governments of the ten southern states that rejected the amendment. Recall that these
governments had just been established in 1865. The act placed these states under military
rule and required the ratification of the proposed amendment before they could be
readmitted to representation in Congress.
President Andrew Johnson vetoed the Reconstruction Act because he believed it was
unconstitutional. His veto message stated: “I submit to Congress whether this measure is
not in its whole character, scope and object without precedent and without authority, in
palpable conflict with the plainest provisions of the Constitution, and utterly destructive
of those great principles of liberty and humanity for which our ancestors on both sides of
the Atlantic have shed so much blood and expended so much treasure.” President
Johnson went on to point out that each of the southern states had legitimate governments.
“It is not denied that the States in question have each of them an actual government with
all the powers, executive, judicial, and legislative, which properly belong to a free State.
3
ibid.
4
Adoption of the Fourteenth Amendment, H.E. Flack, p. 165; Tenn. House Journal (Extra Session), 1866,
p. 25
They are organized like the other States of the Union, and, like them, they make,
administer, and execute the laws which concern their domestic affairs.”
Congress was undaunted as it overrode the President’s veto of the Reconstruction Act.
After the Reconstruction Act was passed, two states (Nebraska and Iowa) ratified the
proposed amendment and three states (New Jersey, Ohio and Oregon5
) reversed their
ratifications. So, without considering the actions taken under reconstruction, the final
tally was nineteen for, sixteen against, and two (California and Tennessee) not acting.
As a result of the Reconstruction Acts (3 were passed in total between the dates of March
2 and July 19, 1867) the ten southern states were organized into military districts. Their
lawfully constituted legislature were illegally removed by “military force” and they were
replaced by illegitimate legislatures. Seven of these legislatures eventually ratified the
14th amendment.
The “official” vote tally is another source of controversy. On July 20, 1868, William H.
Seward, Secretary of State, issued a Proclamation 6
that listed the “official” results. His
tally showed twenty-three states that voluntarily ratified, six states that ratified under
martial rule and two states that voluntarily reversed their ratifications. Seward said in his
official proclamation that he was not authorized as Secretary of State “to determine and
decide doubtful questions as to the authenticity of the organization of State legislatures or
as to the power of any State legislature to recall a previous act or resolution of
ratification.” He also said that the amendment was valid “if the resolutions of the
legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be
deemed as remaining of full force and effect, notwithstanding the subsequent resolutions
of the legislatures of these States.” Seward’s report also call into question the ratifications
of states who were under martial rule.
I think you will agree that Seward’s reservations were rather startling. It is patently
obvious to any thinking person that if a state has the right to ratify an amendment that it
equally has the right to withdraw the ratification. It is equally obvious that any action
which is taken under compulsion (southern states vote to ratify) is an invalid action.
Congress was not satisfied with Seward’s proclamation due to the reservations it
contained. On July 21, 1868, Congress passed a Joint Resolution7
that declaring that three
fourths of the several States of the Union had ratified the 14th amendment. On July 28,
1868, Seward bowed to the action of Congress and issued his Proclamation declaring that
three-fourths of the states had ratified the amendment.
In such an environment, one would hope that the highest court in our nation would bring
some clarity. But alas, such is not the case. In one of the leading cases on the validity of
the 14th amendment the court stated”
5
Oregon Senate Journal, 1868, pp. 66 and 131; Oregon House Journal, 1868, p. 273 6
Statutes at Large, v 15, p. 706.
7
House Journal, 40th Congress, 2nd Session, p. 1126.
“The legislatures of Georgia, North Carolina and South Carolina had rejected the
amendment in November and December, 1866. New governments were erected in
those States (and in others) under the direction of Congress. The new legislatures
ratified the amendment, that of North Carolina on July 4, 1868, that of South
Carolina on July 9, 1868, and that of Georgia on July 21, 1868.”8
In this case, the U.S. Supreme Court did not bother to rule on the constitutionality of
Congress sweeping away valid state legislatures in the Reconstruction Acts. The U.S.
Supreme Court overlooked that it previously had held that at no time were these southern
states out of the Union9
.
In the Coleman case, the court did make a slip to reveal that they understood what had
happened in the case of the 14th amendment:
“Whenever official notice is received at the Department of State that any
amendment proposed to the Constitution of the United States has been adopted,
according to the provisions of the Constitution, the Secretary of State shall
forthwith cause the amendment to be published, with his certificate, specifying
the States by which the same may have been adopted, and that the same has
become valid, to all intents and purposes, as a part of the Constitution of the
United States.” [emphasis added]
The Supreme Court, in the Coleman case, did lightly review questions pertaining to the
ratification of the 14th amendment, and of attempts by two states to rescind their previous
ratification of an amendment.
“...the question of the efficacy of ratifications by State legislatures, in the light of
previous rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with the ultimate authority in the
Congress in the exercise of its control over the promulgation of the adoption of
the amendment.” [emphasis added]
One would hope that the highest court in the land would properly exercise their
Constitutional responsibilities to provide “check and balances” to the other branches of
the federal government. Their statement that is was an issue for the political arena was an
act of cowardice and wholly inconsistent with the high court’s pattern of judicial
statutory annulment.
The precedent for judicial statutory annulment was established in 1803 where the court
said “”...it is apparent that the framers of the Constitution contemplated that instrument as
a rule for the government of courts, as well as that of the legislature. Why otherwise does
it direct the judges to take an oath to support it?”10 The practice of judicial review [as it is
8
Coleman v. Miller, 307 U.S. 448, 59 S.Ct. 972 (1938).
9
White v. Hart (1871), 13 Wall. 646, 654.
10 Marbury vs. Madison, 5 U.S. 137 (1803).
also called] continues on to this day. It is often used as a legal tool to justify taking a
position that differs from the legislature when the court wants to nullify a law. It appears
that the court uses this technique only when it suites their motive and not necessarily
when necessary to protect the rights of the citizens.
The legal validity of the ratification of the 14th Amendment has often been disputed. The
Utah Supreme Court once ruled that the ratification of the 14th Amendment was
invalid11.
For more than a hundred years now, the courts have applied the 14th Amendment to
pertinent cases that have come before them. And although questions have been raised
about both its language meaning and the legal correctness of its adoption process, Federal
challenges to the ratification of the 14th Amendment have always fallen on deaf ears. Its
long time usage and the lateness of the hour doctrines have caused the Supreme Court to
accept the 14th Amendment as law12.
11 See Dyett vs. Turner, 439 Pacific 266 (1968), and the numerous other cites therein. 12 See Coleman vs. Miller, 307 U.S. 433 (1939).
Well if that is true, how did Lincoln revoke Article IV, section 2? If they were always part of the Union, the constitution required him to return their slaves, and it doesn't mention any exceptions to this rule.
The only argument on behalf of the legitimacy of his act is that they were no longer under the law of the US constitution.
So which is it? Either US Constitutional law didn't apply to them, or Lincoln violated Constitutional law.
And the second point is that the 13th Amendment was ratified before Reconstruction was enacted, and eight of the eleven Confederate states ratified it before it became part of the Constitution in December 1865.
Well that's not true at all. The puppet government's put in place by the military forces occupying those lands voted in the way the puppets were told to vote.
This does not represent an actual consent, it was deliberate coercion that people pretended was a legitimate expression of the will of the people of those states.
It was about as dictatorial an act of pretense as this nation has ever seen.
The deliverer of the Cooper Union Address appointed five Supreme Court justices, including Chief Justice Taney’s successor. He forced Chief Justice Taney to administer him the Presidential oath of office. He saw Taney’s decrepit corpse dropped in a hole forever.
Case won.
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