Posted on 01/18/2005 3:54:04 PM PST by TBP
INDULGE me in a momentary historical fantasy. Suppose that Roger Brooke Taney had not gone down in American history as the principal author of what is now almost universally acknowledged as the worst decision in the history of American jurisprudence, Dred Scott vs. Sandford in 1857.
Suppose the country had been shaped in the image of Chief Justice Taney's decision, which decreed that slaves could be carried anywhere in the union, and that Negroes could not be citizens under the Constitution, for they were ""regarded as being of an inferior order and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect. '' These were not persons, according to the high court, but property.
Stay with me, this may take some imagination. Now suppose that, instead of these words exciting contempt and derision, and moral horror, they were thought to represent a bulwark of American rights, a new birth of freedom.
In that case, there might still have been those Americans who did not approve of slavery, and perhaps even demonstrated against it, but suppose they were outnumbered by far? Not by fervent disciples of human slavery, but by the mass of citizens who felt uneasy when the subject came up, and who themselves would never own a slave, but who did not feel they should interfere with another's right to own one. Such a delicate question, they felt, should be left to individual conscience -- not dictated by the state.
And finally, suppose that Roger B. Taney, full of years and honors, were to announce that he would retire at the end of the Supreme Court's current term. What would some forgettable mediocrity of a president have said on that occasion? Would he have identified himself with the decision in Dred Scott? And would the departing chief justice have been hailed as the conscience of the court? Would the grand old man have explained at one point that, while not in favor of slavery personally, he had acted to protect the rights of others?
Too rich a fantasy?
Not if one listens to what is being said on the retirement of Justice Harry Blackmun, author of Roe vs. Wade, the Dred Scott decision of our time. Roe made it clear that the unborn child -- fetus, if that term is more comfortable -- has no rights that the state is bound to respect.
And like Dred Scott, Roe was handed down in the name of an individual right. Roger Taney's decision in Dred Scott was based on the Fifth Amendment's guarantee that no person shall be deprived of life, liberty or property without due process of law. Justice Blackmun based Roe on a vague right of privacy nowhere spelled out in the Constitution but ""broad enough to encompass a woman's decision whether or not to terminate her pregnancy. ''
Of course Roe does not condemn millions to a lifetime of slavery, but rather to no life at all -- or, if one prefers, termination. (Euphemism is the first sign that an advocate feels queasy about what he's really advocating.) At his press conference with Justice Blackmun this week, President Clinton repeated his support for Roe in his own forgettable way: ""I -- you know, of course, that I agree with the decision and I think it's an important one in a very difficult and complex area of our nation's life. ''
It might be noted that James Buchanan, the forgettable president in 1857, was all for the decision in Dred Scott, too, exulting that it would make Kansas ""as much a slave state as Georgia or South Carolina. '' At last the slavery question was resolved and the agitation over it would end -- just as Harry Blackmun's opinion in Roe was supposed to end any dispute about abortion.
Speaking of his decision in Roe, Justice Blackmun once explained: ""People misunderstand. I am not for abortion. I hope my family never has to face such a decision. '' Roger Taney's defenders in the more poisonous groves of academe explain that the chief justice wasn't ruling for slavery, but only interpreting the Constitution. People misunderstood.
By all reports, Mr. Justice Blackmun is a nice man, and a baseball fan to boot. Chief Justice Taney doubtless led an exemplary private life and had his hobbies, too. And both handed down other, better decisions besides the single one that history will indelibly link to their names. Perhaps that is the essence of this fantasy: In a society that has lost its moral bearings, strange and terrible decisions can be made, and can come to seem quite ordinary, even praiseworthy.
Even Blackmun himself admitted that there was no justification for Roe found in the Constitution, but merely in what he called its "penumbras and emantions."
In other words, "I'm a liberal and I'll do what I want whether the Constitution allows it or not."
Some of these justices wouldn't know the U.S. Constitution if it introduced itself.
I know it's politically correct to criticize the Dred Scott decision, but it was decided 7-2, and the decision was well reasoned.
ML/NJ
Taney was a typical Constitutional illiterate--like Jefferson Davis and the rest of the Southern "legal scholars" current at that time--and should have been forcibly removed from the bench by Abraham Lincoln for his manifest treason against this nation during the Civil War.
Blackmun, on the other hand, was a learned man seduced by the evil siren song of smug, comfortable, modern liberalism. His pitiful legal opinions are laughable, and nowhere more so than in the Roe vs. Wade decision.
Hopefully, President Bush will have at least three chances to remake the Supreme Court in a more Constitutional image during the next four years. I think we'll see at least that many retirements from the High Court, if not more.
Taney and Blackmun are undoubtedly on their way to Outer Darkness.
Taney was to Jackson as Blackmun was to Nixon.
The analogy is valid, and has been made frequently by those who oppose abortion. The only quarrel I have with it is that I think Roe v. Wade was an even WORSE decision than Dred Scott.
That's not because I don't think the Dred Scott decision was a horrible one, but because, as I said, Roe was even worse. Scott justified the enslavement of a whole class of people because they were judged by the court not to be real people, but inferior beings. Roe v. Wade justified the killing of a whole class of people because they are not judged to be real people. Bad as enslavement is, murder is even worse.
Maybe this a bit like arguing whether Hitler or Stalin was worse than the other. But if you are enslaved at least you have some chance of happiness or escape. If you are murdered, you have been deprived of the most basic right of all, the right to life, which is necessary before any of the other rights can be enjoyed.
The fate of the slaughtered unborn in the next world can be argued, but the constitution and human law deal with this world. All human beings have an inalienable, because God-given, right to life, liberty, and the pursuit of happiness.
Wow, do you need to do a lot of reading! (if you are able)
Maybe you could point out one or two points Taney made in Scott v. Sandford that you think might qualify him for the apellation of "Constitutional illiterate." And while you're at it give Ex parte Merryman a shot too.
Constitutional illiterate, indeed!
ML/NJ
As bad as Dred Scott was, it at least had a shred of constitutional reasoning. Roe has ABSOLUTELY NONE.
Okay. I'll ask you (since the other guy won't answer), what was "bad" about it? Is that you just didn't like the ends, or do you think there was something wrong with the means (Taney's et al. reasoning). It's not for the courts to go changing the law, even if the law is flawed. This is up to the Congress, or the States if it involves Constitutional change.
ML/NJ
I shall attempt to be intellectually honest, while admitting that yes I do not like the Dred Scott decision.
I believe that you are correct when you say that the Supreme Court should not legislate from the bench, even to end as heinous an institution has slavery. To illustrate, even Abraham Lincoln recognized that he had no constitutional authority to end slavery in the free states where he issued the Emancipation Proclamation.
My objection to the Dred Scott decision rests on what I feel as a too cursory dismissal of Dred Scott's claim to have been a resident of a free state that offered him the protections granted by that state to Illinois citizens. It would seem to be preservative of states rights to protect the state of Illinois right to determine the status of its citizens.
I fully accept that the only constitutional way to end slavery was to adopt the 13th amendment.
Scott was not considered property in Illinois, but a free citizen. If you hold that Scott was to be considered property wherever he went, then do you also hold that under the "full faith and credit" clause, all states must recognize a gay couple "married" in Massachusetts as "married"? Or do states' rights hold here? And if they do, why wouldn't they hold in the case of a slave in a state that does not recognize slavery?
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