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.
They were referring to a temporary slave whose labor would be auctioned off to a member of the public, with the money going to the state. Prisons, in our present sense, were rare, although they were coming in.
My point, poorly worded though it was, is that the convict labor approach wouldn't work in today's economy, for a host of reasons. Among others, you'd have to pay somebody more to watch him than he would generate in labor.
I seriously doubt that the authors of the Amendment were referring to a criminal sentence of hard labor as served in a prison.
I certainly could be argued, just as the meaning of "cruel and unusual" is. Tangentially, I always wondered how the military draft squared with that clause. Enrollment in an army against your will and being forced to labor and risk life seems to be against this amendment.
SB: “IT certainly...”
The US Constitution is an operations manual for the federal government which operates under civil law inside the federal enclave and administrative law outside the federal enclave.
The States, with the exception of powers specifically ceded to the federal , or 'general' government, operate under civil, or common law.
In the states of Kentucky and Virginia, the privileges of alien friends depended upon the constitution of each state, the acts of their respective legislatures, and the common law; by these they were considered, according to the time of their residence, and their having complied with certain requisitions pointed out by these laws, either as denizens, or naturalized citizens. As denizens, they were placed in a kind of middle state between aliens and natural born citizens; by naturalization, they were put exactly in the same condition that they would have been, if they had been born within the state, except so far as was specially excepted by the laws of each state. The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever.
This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shall have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the U. States, nor prohibited by it to the states, are reserved to the states, respectively or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states.
St. George Tucker, Blackstone's Commentaries
The link in #63 was to illustrate the extent of federal jurisdiction in determining citizenship.
The link for Tucker's Dissertation on Slavery, which was later included in his View of the Constitution, elaborates on the different political/civil status of slaves as compared to free citizens.
Note that this was written as a plan for the STATE to gradually prohibit slavery, NOT the federal government.
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Article 1, Section 8, Clause 4
To establish an uniform Rule of Naturalization
This does NOT mean deciding who will or will not be 'allowed' to be a citizen, it only gives the authority to make the State's criteria for citizenship uniform.
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Here's another legal conundrum:
Article 2, Section 1, Clause 5
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
If one were to adhere to strict Constitutional construction, and this clause prevents naturalized citizens from running for President since they fail to meet the criteria for being a 'natural born' Citizens who were citizens at the time of the Adoption of the Constitution, wouldn't this also prevent any descendant of a slave from being President since they also fail to meet this constitutional criteria?
I believe you’re misinterpreting the wording. There are two groups of people who are eligible to be President.
1. Natural born citizens.
2. Individuals who were citizens at the time of the adoption of the Constitution (1784). This clause allowed a good many people to be eligible, notably Alex Hamilton, who were actually immigrants to what is now the US.
There is nothing at all in there that implies that qualification is hereditary and limited to those eligible for citizenship in 1784. If there were, it would have been overridden by the 14th Amendment.
Anywho, in at least five states blacks, though not slaves, were full citizens in 1784.
The reveled law of Moses. For example:
By prohibiting us from murder, we have a right to live
By prohibiting us from stealing, we retain a right to property
By prohibiting us from bearing false witness, we have a right not to be injured because someone lies about us (perjury, slander & libel)
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The Founders referred to these laws as the laws of Nature and nature's God in the Declaration of Independence.
The Law also prohibited kidnapping.
Every slave, except those born to the state, starts out with a kidnapping.
> If Scott could spend several years in a free state and
> territory and still be a slave, what would prevent a
> slave owner from moving 50 slaves to Ohio and setting up
> a plantation?
“[T]he slaveholder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses,” Abraham Lincoln informed his fellow citizens, “if negroes were property in the same sense that hogs and horses are.” As Lincoln’s statement indicates, the main bone of contention between Taney and most antebellum northerners was whether the generally understood right to bring property into the territories entailed a right to bring human property into the territories.”
http://hnn.us/articles/30419.html
So, the crux of the decision, as I understand it (note: neither a scholar nor lawyer, here) is whether there was a constitutional basis for distinguishing between human property and other property.
If you say that the federal government may, for whatever reasons seem apt at the moment, redefine the legal rights entailed in distinct types of property simply because it seems good to the federal government to do so, you would have sped up the post 1970 “innovations” in environmental law, for instance, that allow the government to take property without compensating the owner, wouldn’t you?
You misunderstood my question. In what sense could a State be said to prohibit slavery if a slaveowner could take up residence there for several years, with his slaves, then leave with them still in a stae of slavery?
This was the problem with Lincoln’s famous “house divided” speech. It expressed the view of northerners who thought the South was engaged in a conspiracy to force slavery on them in their own States, while southerners saw the wording as a threat to end slavery in southern States.
The "federal government" wasn't redefining anything. Prohibition of slavery in some territories preceded the Constitution and had been a continuous feature of territorial administration ever since the Constitution was implemented.
The innovation was Taney "finding" the new constitutional right that slavery could not be prohibited in a territory. Lincoln and his groups were actually the conservatives in this case, while Taney and the other southern extremists were the radicals and proponents of the expansion of federal powers. (As long as they controlled those powers.)
Which, IMHO, was exactly where the issue of slavery originally resided and should have remained....with the States.
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If there were, it would have been overridden by the 14th Amendment.
LOL! Are you sure? According to the courts, the 14th created an entirely NEW class of citizenship. One that didn't even exist when the Constitution was written-
14 CJS section 4 quotes State v. Manuel 20 NC 122:
"... the term `citizen' in the United States, is analogous to the term `subject' in the common law; the change of phrase has resulted from the change in government."
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U.S. v. Anthony 24 Fed. 829 (1873)
"The term resident and citizen of the United States is distinguished from a Citizen of one of the several states, in that the former is a special class of citizen created by Congress."
______________________________________________________________________
U.S. v. Rhodes, 27 Federal Cases 785, 794:
"The amendment [fourteenth] reversed and annulled the original policy of the constitution"
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If allowed any force in law, the 14th Amendment nullifies the entire separation of powers enumerated in the Constitution and places us under the auspices of one, single, national government.
While the Founders may have agreed all Men were created equal, NO form of government was ever given the authority to keep everyone that way.
> In what sense could a State be said to prohibit slavery
> if a slaveowner could take up residence there for several
> years, with his slaves, then leave with them still in a
> stae of slavery?
Obviously they could prevent commercial transactions in slaves, they could (at the time) have made a lack of slaves a condition of the franchise, they could have ensured that slaves under their probate law could not be inherited and passed laws declaring that children born to slaves in their jurisdiction were free.
Those conditions would have guaranteed that slavery could never take hold in the free states except as a transitory abberation, wouldn’t they? And without having to declare that there were “different” property interests depending on whether the property in question was approved of by the federal government.
> It expressed the view of northerners who thought the
> South was engaged in a conspiracy to force slavery on
> them in their own States, while southerners saw the
> wording as a threat to end slavery in southern States.
Every other country in the Western hemisphere managed to eliminate slavery within 40 years of the end of the US civil war without coming to blows over the question. (I think Brazil was the last, right around 1900?) That distrust by each section of the intentions of the other may have been more of the real central issue than slavery, though slavery was the ignition point. What do you think?
Secession has been analogized to divorce, with some apparently claiming that states seceded to prove they had a right to do so, analogous to a wife divorcing her husband to show she can.
This is of course silly. The real issue, as you imply, is that the two sections had grown to hate and despise each other, for a host of reasons reasonable and unreasonable on each side.
You are, BTW, ignoring my point that treating slaves differently from other property in some territories was not an innovation. It was older than the Constitution and had existed continuously up to the Kansas-Nebraska Acts.
Northerners still thought they could use the political system to repeal these atrocious laws, but then Taney “found” a constitutional right to take slaves into the territories, complete with a requirement for massive expansion of federal power to protect the slaveowners in the exercise of this right.
The parallels to Roe are amazing. A Court decides to take a controversial issue off the political table by “discovering” a previously unknown constitutional right. Presumably the Court thinks this will settle the issue.
In reality, of course, in both Scott and Roe the situation was just made much worse.
As Divine, natural, common, civil and administrative laws have all been mentioned, could you please specify as to which 'law' you are referring to?
I was replying to a post about the Law of Moses, to which I was referring. Sorry about the ambiguity.
LOL! No ambiguity on your part, just my persnickety insistence on being sure I don't plant my foot squarely in the middle of it before I reply. :-)
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Every slave, except those born to the state, starts out with a kidnapping.
While I agree with the sentiment, (and at the risk of beginning a moral argument) I can not agree with the statement. Tucker goes into great detail on the legal aspect of slavery in the link previously posted.
The facts are the facts. Slavery, as a legally recognized institution, came to this country with the Pilgrims. It was still such as the colonies were settled, when the Declaration of Independence was written, the American Revolution was fought and the State and federal Constitutions were signed.
Did the Founders create an inherent flaw in the federal Constitution by guaranteeing the right of human ownership to the People and quasi-human political status to the slaves? I cannot say. I do not feel qualified to judge them.
Of one thing, I am certain.
Sweeping the entire question under the rug for fear of offending ANYONE does a great disservice to the idea of Liberty and weakens the foundation of our country.
There is a way to reconcile the two. The 14th Amendment, IMHO, was not the answer.
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On a side note, since you realize the role the States played in determining citizenship, do you also know why, even though they were written by (mostly) the same men, do you know why the Declaration of Independence and the Constitution are 2 different documents?
Because they were written eleven years apart?
Making it pretty hard to be a single document.
Incorrect. The Pilgrims had no slaves on arrival. The first slaves were brought into MA apparently around 1630.
The early settlers in Jamestown had no slaves. The first Africans in VA were brought in as indentured servants, with identical legal status to white indentured servants. Interestingly, it was a free black slaveowner in VA who first sued to change the status of his black indentured servants to permanent and hereditary slavery.
It wasn't till the 1660s that the law began to recognize chattel slavery and it was 1705, 100 years after settlement, before slavery in VA was fully codified legally. Practical slavery of course tended to generally precede its legal recognition.
Okay, You've got me there. I'd completely forgotten that! :-)
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No, it's because the Declaration of Independence was what was known in English law as a 'declaration of intent', informing the crown that the colonists were going to exercise their natural (or common law) right of expatriation and listing their reasons for doing so.
The Constitution was signed by representatives of the respective States in their civil capacity to create a general government with certain enumerated administrative authority.
The DOI and the Constitution are 2 totally different types of legal documents.
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