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.
If it came to a Civil War, most of the members of our military would be on the side of the Right, regardless of who was in power. Robert E. Lee was as honorable a man as West Point and this country ever produced, but that didn't keep him from refusing a Union comission.
Why? It was legal. In 1857 and for years and years before, and years afterwards.
"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?"
Taney did not rely on the "technical level" at all, but made a decision that would be popular with at least one very large interest group. His decision was not influenced by the word or intent of the Constitution, but instead by what would satisfy his personal views --- exactly the same modus that Breyer and the other liberals on the Court have used in recent years.
I see Taney as an activist and Breyer has followed in his footsteps. No doubt, both with "Good Intentions" based on their view of what the law 'should be' to satisify their political and social views.
That 150 years later we all say that Taney's views were wrong entirely misses the point. A large number of people at the time agreed with Taney (just as a large number agree with Breyer today) and didn't really care that he overstepped his authority and ignored the intent of the Constitution.
The point is that in 1857 or today, what the law "should be" is not the province of a judge to decide. Making law from the bench is not what judges should do. Making law is up to the people through their representatives in Congress.
I meant morally wrong. You’re arguing from a legalistic viewpoint.
You can’t be serious. Abortion is legal today. It is also wrong. Involuntary servitude, in all parts of the world and at all times, is wrong.
The Declaration of Independence was written and signed by the Second Continental Congress, a war appropriations body. The US Constitution was written and signed by the Confederation Congress, a legislative body. Furthermore, the US Constitution was ratified by the legislatures of all thirteen original states. The Declaration of Independence was not. The Declaration is the only positive thing that I have to say about Thomas Jefferson, but in terms of legal precedent and philosophy, it is entirely irrelevant.
The people who brought the lawsuit could have collected money to free Dred and Harriet, and set them free years before 1857. They were trying to make a point, which backfired.
Fortunately, despite losing the lawsuit, Dred and Harriet did get their freedom not long afterwards.
The only real force the Leftists have is LEOs in SWAT teams. Since they rely on the enemy being one stoner with a .25 Raven, trapped in a trailer, a squad of high-power shooters, Ex-Marines, Viet Nam vets, with Remington 40X and Pre-64 Model 70s, M1As, AR-15s, in open country would... well... I know which way I would bet.
Large metro areas are easy to blockade and starve out easily. How long would Manhattan, or Chicago last, if you cut off the food and power supplies? They would be dining on rats and miniature poodles in a month.
And there we have it: something can be "morally wrong" and still be legal. Remember: We do not have courts of justice. We have courts of law.
And in 1857, under the law, slavery was legal. Period. And that, in a round about way, is what the court in Dred Scott grappled with -- was it legal or no; not was it right or wrong.
Yes. Those who believe in the sanctities of private property. The same sort of folk who get their feathers ruffled over the current eminent domain imbroglio.
I hope that you are either making a bad joke or you are completly ignorant of what it was that Taney ruled.
Which is it?
What part of “The slavery situation in 1857 was wrong.” is hard for you to understand?
Why stop at the Civil War? After the Civil War, your ancestors wouldn't have been slaves, but they wouldn't have been anything like full citizens of a Republic either. They couldn't vote, couldn't get elected to office, if charged with a crime they couldn't get a fair trial, they couldn't use public facilities and they couldn't hold meaningful gainful employment. If the US, because of slavery, wasn't a Republic before the war, what made it a Republic after the war?
Enoch Powell strongly believed that America was more of an enemy to the UK than Nazi Germany or Tojo's Japan. Do you agree with that assessment?
True, and worth noting.
The odds that you might have been one of the many slave owners who were also black is probably not all that high.
Strangely, I don’t see in this article much discussion on whether, on the basis of the law at the time, the case was decided _wrongly_. Seems to only be concerned that the “wrong” decision was arrived at (from our point of view 150 years later).
Raymann, be advised that ClearCase’s “Enoch Powell is right” tagline is a British white supremacist slogan, referring to Powell’s opposition to the Race Relations Act, which criminalized discrimination in the UK in housing and some sectors of employment on the basis of race. Apparently, ClearCase is saying that such discrimination should be allowed.
Actually, my tagline refers to this:
In the United Kingdom, particularly in England, "Enoch was right" is a phrase of political rhetoric, employed generally by the far right, inviting comparison of aspects of contemporary English society with predictions made by Powell in the Rivers of Blood speech. The phrase implies criticism of immigration and multiculturalism.
The Rivers of Blood speech was delivered in 1968. I like the speech and I agree with most of its content. I feel no compulsion to adopt whatever views he may have had on WWII-era dictators.
and Kelo and CFR...
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