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.
My objection is to the majority's factually incorrect claim that blacks were not citizens of the US in 1784 and therefore could never become citizens. This was not in contention before the Court, but it chose to rule on the issue anyway. The first statement, that blacks were not citizens of the US in 1784, is just untrue. The second statement, based on the first, is therefore equally untrue.
This was all thrashed out at the time, and spelled out very plainly in Justice Curtis' dissent, which was just ignored by Taney and the majority.
it may safely be said that the citizens of the several States were citizens of the United States under the Confederation. To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina (!), though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
Also from Curtis’ dissent:
The Supreme Court of North Carolina, in the case of the State v. Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.
‘According to the laws of this State,’ says Judge Gaston, in delivering the opinion of the court, ‘all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native born British subjectsthose born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twentyone, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution.’
I disagree. It is an appropriate punishment for certain crimes, and is allowed for under the 5th Amendment following a trial and due process.
I agree. Impractical, in today’s world, but certainly not immoral when used as a punishment, as it was in the time of the Israelites.
Permanent (especially hereditary) involuntary servitude, in all parts of the world and at all times, is wrong.
Reference please.
TonyRo76:
AMEN! I've said for a long time, including here on FR, that Marbury v. Madison was the High Court's first major anti-Constitutional power grab.
Marshall didn't make a 'power grab' in Marbury, -- as he agreed that the SCOTUS was also limited in its power by the Constitution in his conclusion.
-- It was later courts that misused & misinterpreted Marbury, -- and at various times both Congress & the Executive branches have 'gone along' with the SCOTUS grab; --- when it suited their purpose to make power grabs of their own. --
Even states have cooperated with such Court misinterpretations -- as California shows by its delight in being able to infringe on its citizens right to bear arms.
Not at all. Think "20 years of hard labor" or even a weekend picking up trash along roadsides. Those are both instances of involuntary servitude. I don't believe it moral to sell this service, however, as is done in Chinese prison labor. That changes it from punishment by a sanctioned societal authority to enslavement for profit.
And there is also the three-fifths compromise in the constitution which contradicts that statement too. (Not to mention voter qualifications in the early 19th century).
The full quote it: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Note the absence of the franchise as one of Man's inalienable rights. The franchise was considered at the time to be a privilege, not a right.
I'm sure you're well aware that "the Constitution says a slave is 3/5 of a man" is a canard. The clause was inserted as a compromise between southerners, who wanted slaves counted equally with free men for purposes of determining representation (but not for voting!), and northerners, who didn't want slaves counted at all.
I guess this means slaveowners were more in favor of equality for blacks?
Hard labor may be a fitting punishment, but it is not very profitable in today’s economy. It never was all that profitable, if you counted in the cost of the guards and all.
Why? It was legal. In 1857 and for years and years before, and years afterwards.
Legality does not make something right or wrong. Abortion is legal.
and Kelo and CFR...
As bad as Kelo and CFR are, Dred Scott is far worse.
> Reference please.
“Indeed, in his dissent Justice John McLean agreed that citizens had substantive property rights protected by the Constitution: His dissent was instead based on the morally immense but legally narrow grounds that Dred Scott did not count as property, since “a slave is not property beyond the operation of the local law which makes him such.” (Even more embarrassing for originalists like Scalia who fulminate about the use of international law in American Supreme Court opinions, the dissenters’ arguments that slaves were not property relied heavily on decisions made by courts outside the United States. European courts had ruled that because slavery violated natural right, slaves immediately became free when they left jurisdictions where the institution was established by positive law.)”
http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=12085
(The 2nd earlier cited article, based on the book “Dred Scott and the Problem of Constitutional Evil”.)
Everyone agrees, I think, that Taney said things which were not true (especially with respect to the citizenship question). It’s equally true (from what I’ve read) that the dissenters’ opinions engaged in more than a tad of historical overreaching. To forgive them because their cause was just is tempting, but nonetheless smacks just a bit of hypocrisy.
The real problem in Dred Scott isn’t (imo) that the court muffed the decision. It’s that the Constitution and the founders down through the people and politicians of 1857 were not on the side of the angels on this question.
Haven’t read McLean’s decision yet, but Curtis’ didn’t seem to rely that heavily on foreign decisions. Although he did review them I don’t think he used them as precedent.
He did use common law, which was incorporated as the basic law of the state of Missouri shortly after it became a state.
In addition, French law was partially applicable, as it was used to some extent in the territories that were carved out of the LA Purchase, such as WI.
The most relevant point in his determination that Scott was no longer a slave, IMO, was that both the state of IL and the territory of WI had positive laws stating that the institution of slavery did not exist in those jurisdictions.
Once Scott entered these jurisdictions, his condition of slavery disappeared.
The only question then, according to Curtis, was to determine whether it “reactivated” on his return to Missouri. Curtis ruled that it did not.
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? I don’t see any logical reason why he couldn’t and I think lots of other free-soilers couldn’t either. Which is where, I think Taney and his felloow-conspirators over-reached.
This decision, and the Kansas-Nebraska Acts, IMHO, made the Civil War inevitable.
(best Jewish father accent); Are your ears dirty?
Yes, it's a choice. Were you joking or do think Taney was correct in his constitutional reasoning?
Here's the like to his opinion as a starting point in case you have never read it.
If you were not joking (badly) I can only assume that you think Taney was correct and not motivated by politics or personal feelings.
BTW... here's a link to one of the dissenting opinions in case you need some help in understanding how Taney took judicial activism to a new level completly without regard to the word or intent of the constitution, or long established states rights that pre dated the constitution. Along with the Fugitive Slave Act, Scott was the biggest assault on States Rights that had ever occurred until that point in our history.
Frankly, I have never seen anyone defend the Scott decision. It was over the top judicial activism in any era. I'm amazed anyone would defend it, least of all someone on a Conservative forum.
The Cherokee had for the most part been allies of the Americans, notably in the Creek Wars.
They were quite civilized, more so than some of their white neighbors.
While your statement is not untrue of Indians in general, during the early 19th century the Cherokee were far more sinned against by whites, especially Georgians, than they were sinners.
ping
Who said anything about making a profit? The object is punishment for a crime and deterrence of recidivism.
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