I’m arriving late to this event, but I wanted to add to the noise around President Bush’s comments on the Dred Scott decision (case). The Supreme Court ruled that Scott, a slave, was property and could not obtain the rights of citizenship.
Dred Scott’s case holds a unique place in American constitutional history as an example of the Supreme Court trying to impose a judicial solution on a political problem. The ruling, which helped to precipitate the Civil War, has long been considered one of the court’s great “self-inflicted” wounds. (Source)
Just One Minute (a blog I recommend you visit) does a round-up of comments round the blogosphere. More on this later. I want to keep it on the radar screen.
Addendum (reasonable hour): Now that I’ve had some caffeine, let’s delve a bit deeper into Dred Scott, shall we?
A case like Dred Scott v. Sanford (1856) is one of the reasons certain blacks are always angry. The anger is justifiable to a point. At the time, blacks, free or in bondage, were not considered citizens of the United States. I’ve linked to the decision — which is exceedingly wordy — so you can read it for yourselves. The synopsis I cited earlier is a good reference.
The facts: After his owner died, Dred Scott, a slave, sued for his freedom on the grounds that since he’d lived in free territory for a period of time, he was free. The Missouri courts rejected the argument. Title to Scott passed to John Sanford, who lived in New York. Scott decided to take his case to federal court. Under the Constitution, citizens from different states can sue each other in federal court (Article III, Section 2).
The issue:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution….[W]hether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. (My emphasis)
The bottom line: NO, a black person could not be brought into the “political community.” While it’s been argued that under legal precedent in Missouri, Scott should have been a free man, the Supreme Court contended that blacks of African ancestry were not citizens of the U.S. Period.
But that wasn’t the final word. The pro-slavery judges wanted their intentions to be obvious. The court held that the Missouri Compromise of 1820, which restricted slavery in the territories, was unconstitutional. In other words, the federal government did not have the power to restrict slavery in its territories. So don’t bother us anymore.
Republicans (the anti-slavery party) were outraged over the decision. Guess which party celebrated?
This is part of our history, as sour as it is. The court applied a strict interpretation of the Constitution (or so it thought), which is part of the reason blacks take issue with the strict constructionist view. If the court had been correct in its approach, the decision would have been correct. Before black liberals once again accuse me of hating myself and other blacks, let me clear things up.
Strictly construed or not, I do not believe the Constitution ever supported slavery. Although drafted by some who owned slaves, its principles of liberty are enduring, and the desire for liberty is universal, whether an individual actually lives in freedom or not.
It is a fact that before the Civil War, many believed the Constitution supported slavery. After the Civil War, the error was corrected by the Thirteenth and Fourteenth Amendments. Ironically, the Democrats, who once hated the Fourteenth Amendment because it gave blacks rights, love it today and use it often to support skin color preferences.
This is why I’m blogging about Dred Scott: during the debate, when asked about judicial nominees, Bush said he wouldn’t support the kind of justices who supported slavery. He said:
Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.That’s a personal opinion. That’s not what the Constitution says. The Constitution of the United States says we’re all — you know, it doesn’t say that. It doesn’t speak to the equality of America.
And so, I would pick people that would be strict constructionists. We’ve got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.
And I suspect one of us will have a pick at the end of next year — the next four years. And that’s the kind of judge I’m going to put on there. No litmus test except for how they interpret the Constitution.
Bush believes the court in Dred Scott did not use strict interpretation. I believe the court thought they did, but I’ll have to do some reading on this to come to a decision.
Left-wing journalists and bloggers are saying that Bush invoked Dred Scott as a coded message to us pro-lifers that he wouldn’t nominate justices who supported Roe v. Wade. Code words, they say, were used to hide his intentions from moderates who may be voting for him.
First of all, I think I may be siding with liberals on this one; either it was code or Bush just grabbed the only example he could think of.
Secondly, he should have said what he meant, whatever it was. No matter. The court in Roe found a non-existent right to privacy in the Constitution, and the court in Dred Scott found a non-existent right to human chattle.
Both decisions stink.
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La Shawn Barber is writing about the Dred Scott case. Since I am certain that re [...]
It was a lousy decision, yet had the decision gone the other way, it probably would have made the South secede, RIGHT THEN.
Brazil got rid of slavery in 1886 without a civl war; the British stopped ocean going slave trade much sooner than the US civil war. Morality was evolving to understand that slavery, a practice accepted in the Bible, was immoral.
It was even more cultural-historical moral problem, reflected in the politics and laws. It’s too bad there wasn’t a movement to replace slavery with some limited time (20 year?) “indentured servant” type of arrangement, to evolve out of the immorality of slavery.
Sex slaves in the world today are a huge current problem.
La Shawn
One of my wife’s ancestors was one of the supreme court justices who decided against Dred Scott in that infamous decision.
She’s often wondered how a “reasonable” man could make such an evil decision.
I think it stems from the notion that a “Supreme Court” has the power to sometimes play God. It’s that temptation to embrace power that in turn becomes arrogance. The end result is, as the “Book” says, that justice and mercy fall in the street.
The Dred Scott decision confirmed the Slave owners theory – that slaves were property. Backed up by what the Constitution says on property, they argued the abolition of slavery was unconstitutional, and slaves could be taken and owned in free states/territories. This technically meant people in free territories could never truly reject slavery. I think the Dred Scott case heightened sectional tensions even more. Along with events like Bleeding Kansas and John Brown’s raid, it made civil war pretty much inevitable before Lincoln even came into office. That was just the last straw.
‘I think it stems from the notion that a “Supreme Court” has the power to sometimes play God.’
Or rather interpret the Constitution how they choose to.
Well… my philosophy on Constitutional interpretation is that “strict construction” is fine, EXCEPT that judges should not strictly construe constitutional uses of common law concepts. Since “due process” was a legal concept that grew out of the common law, it is subject to evolve in courts. The Founders had to have understood this. Necessity leads to changes in common law concepts. Where the constitution uses common law terms without specifying limits on them, these provisions of the constitution should allow for changes in the doctrine. The difference between the “right to slavery” and the “right to privacy” is that constitutional references to “property” rights are explicit and don’t involve the use of any common law legal term, while “due process” — the provision into whic the “right to privacy” is read — was a term at common law that evolved over several hundred years into the form it took in 1789. By not explicitly restricting DP to their 1789 understanding, the founders were refusing to restrict its evolution. Therefore, there’s nothing perverse about having a “privacy” component to the constitution. A Federal judge really should understand that. I doubt Bush’s nominees ever would…
The Dem pundits have once again taken advantage of another opportunity to turn up the hype instead of listening to the substance of the message. Bush pulled an excellent example of what he saw historically as judicial activism. Not a current one, but a good example nonetheless. Should he have used Roe vs. Wade, perhaps. But he didn’t. The substance of his message says it all. It’s no code, he’s saying what he means. He wants judges that aren’t going to “create” law from the bench. He believes that Roe vs. Wade was another example. People fall into the hype that because the words Dred Scott came out of a Republican’s mouth, it has to do something with racist rhetoric. He could have also used the decision of the Massachusettes Supreme Court or any decision from the 9th Circuit. Regardless, most Old Media misses the message. Judges should have no “litmus test” placed on them, just their credentials as jurists.
“Morality was evolving to understand that slavery, a practice accepted in the Bible, was immoral.”
With respect, I’d like to clarify. Slavery was *tolerated* in the Bible (I’m presuming you’re referring to Leviticus 25:39-55, correct me if I’m wrong, please), because its practice was rampant at the time. Though the Bible at no time endorsed slavery, it recognized that slavery was a socioeconomic reality that wasn’t going away quickly. Similarly, the Levitical law made provision for divorce not because it was endorsed by God (far from it), but because (as Paul put it) “the hardness of men’s hearts”. Also, the Levitical laws regarding slavery sought to *limit* its evil (e.g., the practice of freeing slaves on Jubilee years).
Hope that helps!
While finding a right to privacy is not perverse per se, using such a right of privacy to justify the murder of unborn babies is quite perverse.
AWG,
Great insight. I am always amazed at individuals who wish to justify events by saying the Scripture condones this or that..
Its perfectly logical that a omnipotent God would have greater “wisdom” in understanding that His end desires are not translated into tangible results overnight. Scripture even says that at a point God “winked” at our unrighteousness. Interesting.
The reason brazil “got rid of slavery” without a civil war was because of international pressure to do so,not because brazilians woke up one day, and figured out that slavery was immoral. I wonder, if liberty dad,thinks that the revolutionary war should not have been fought,after all britain did eventually give all of it’s colonies.
You mean there was judicial activism in the courts even back then??? You mean Supreme Courts can be wrong about … stuff??? Good grief that decision was indeed evil.
Another self-inflicted wound would be Roe vs Wade. If democrats want to hold up Dred Scott as a terrible court decision, then they have to be willing to consider Roe is one as well.
“Bush believes the court in Dred Scott did not use strict interpretation. I believe the court thought they did, but I’ll have to do some reading on this to come to a decision.”
Really the answer is that strict constructionism, or originalism, doesn’t seem to offer the answers we hope it does.
“It was even more cultural-historical moral problem, reflected in the politics and laws. It’s too bad there wasn’t a movement to replace slavery with some limited time (20 year?) “indentured servant” type of arrangement, to evolve out of the immorality of slavery.”
Haven’t you heard of jim crow?
“Haven’t you heard of jim crow?”
Yes, actus, we’ve heard of “Jim Crow” laws, but they haven’t a thing to do with the “limited time” indentured servant arrangement suggested by Tom Grey’s comment. They were state laws designed to “permanently” deny African Americans equal rights. “Indentured servant” arrangements were common in Colonial America, were voluntary contractual arrangements between servant and master, for a fixed period of time (usually seven years), and commonly permitted the indentured servant to “buy out” the remaining period of his servitude. Whether or not Tom’s suggestion has any merit, Jim Crow’s irrelevant.
Excellent and balanced article … your final point, “Both decisions stink”, is the right one. I don’t think Bush’s use of the case was very coded but rather it was bold. Pro-lifers have been using this case for a long time. It is remarkable that abortion proponents think this was some sort of cryptic message.
“Whether or not Tom’s suggestion has any merit, Jim Crow’s irrelevant.”
Its relevancy is that though Jim Crow’s intent may have been permanent, it had basically the effect that the temporary servitude provision envisioned. And I think that most people were aware of that, of the fact that that is what we were getting with emancipation.
Haiti and Brazil abolished slavery largely due to slave revolts. Haitian slaves actually defeated Napoleon and created an independent nation. Such was the cost to France that Napoleon sold all their Western territory west of the Mississipi River to the United States in 1804 to help recoup the losses. An examination of why Dred Scott led to harmful future law (too long for a pres. debate)must include the “separate but equal” clause it contained, which existed until Brown vs. Topeka School Board 150 years later.
“Its relevancy is that though Jim Crow’s intent may have been permanent, it had basically the effect that the temporary servitude provision envisioned. And I think that most people were aware of that, of the fact that that is what we were getting with emancipation.”
Tom was talking about a movement to evolve out of slavery in order to “avoid” the Civil War. Also, Jim Crow was not what “we” were getting in 1868 when the 13th and 14th Amendments were adopted. Those laws weren’t enacted until decades later in response to Reconstruction. Regardless, we’re getting far off topic.
The Dred Scott case was not an example of strict construction but an early version of what we now call judicial activism. Even granting the dubious point that people can be considered property (which is not specified in the Constitution) the Constitutional protections of property rights place limits on the Federal government, not the states. It is true that slavery could not have been abolished in the country without an ammendment, but the states had the power to do so within their territory by virtue of Ammendment X.
An excellent discussion of the history of judicial activism is Robert Bork’s Temptin of America. I can’t link to it here, but it is available on Amazon.
‘Tom was talking about a movement to evolve out of slavery in order to “avoid” the Civil War.’
But this wouldnt of happened. Sectional tensions were already huge, and the South had no plan to abolish slavery. They wanted it to continue indefinatly. Besides, slavery wasnt the only factor in causing the civil war.
‘Even granting the dubious point that people can be considered property (which is not specified in the Constitution) the Constitutional protections of property rights place limits on the Federal government, not the states.’
The Constitution explicitly protects property rights. The supreme court ruled that slaves WERE property. Therefore, slave owners saw that the Constitution protected their ‘peculiar institution.’
‘It is true that slavery could not have been abolished in the country without an ammendment, but the states had the power to do so within their territory by virtue of Ammendment X.’
After Dredd Scott, who had lived in both a free state and free territory, it was deemed that the states/territories technically couldnt reject slavery as slaves (as property) could be taken anywhere.
Thanks for the link to the case. I learned for the first time that Mr. Scott based his case on being held at Ft. Snelling in the free territory of the Louisiana Purchase. As a child, our family passed Ft. Snelling many times on our way to the some place in St. Paul or going to the Minnesota State Fair. My brother Gary is buried at the national cemetery [white crosses, row on row]there.
I realize this is a long ways away in time but the Dred Scott decision is still depressing to read.
I agree with Jack of Clubs; Scott v Sandford was an egregious case of activism from the bench. I discuss the four major areas of judicial revisionism in Scott at some length here: http://adjoran.blogspot.com/2004/10/dred-scott-decision-and-judicial.html
Dear LB,
The Dred Scott decision was the law but it was immoral! Does this not apply to decisions made since then. If the Supreme Court takes out “under God” in pledge of alliance, it will be the law, but will it be moral? I grew up in DC and its surrounding areas. I have a degree from the Un of MD in College Park with Phi Beta Kappa. My parents and after my mother died, my father stayed to get in-state tuition for MD. The Beltway did not exist when I started school. My address after that was Alexandria even though it was in Fairfax County. My job was for the Army at what was on the Bureau of Standards on Connecticut Avenue. It is now a Community College in DC. Glenn Martin left his money to Un. of MD that built the original engineering, physics, chemisty, and math buildings. Un. of Md had the largest ROTC in the nation until the Pentagon took away the money.
JMB
Kevin, thank you, thank you.
The Random Observation blog has a good note against the idea of “evolving morality”, with some quick disagreement. Nice quote though:
He argued that slavery was incompatible with Christianity, a proposition advanced by numerous others before him, among them Gregory of Nyssa, in the 4th century, Pope Leo x, in the sixteenth century and by the extraordinary Anglican Bishop Warburton in the eighteenth, but not necessarily proof against sophisticated and self-interested qualification. Clarkson excused earlier Christians from advocating the abolition of slavery on the grounds that it would have destroyed society, so all-pervasive it was.
And my point is that the Civil War did “destroy society.” Even though I fully agree that slavery was immoral.
And Jim Crow laws were also terrible.
And what Saddam was doing in Iraq, with US help when fighting Iran in the 80s, and against the US after we liberated Kuwait from their aggression in the 90s, was also wrong and terrible; as is Sudan and North Korea.
What are the morally wrong things in the world? What are we doing about them — what should we be doing about them? Can we learn from the past? [I think these are usually a "super topic" of most posts here; which I like, thanks La Shawn]
LASHAWN SAID: >>
The court applied a strict interpretation of the Constitution (or so it thought), which is part of the reason blacks take issue with the strict constructionist view. If the court had been correct in its approach, the decision would have been correct. Before black liberals once again accuse me of hating myself and other blacks, let me clear things up..
>>>>>>>>>
LaShawn I agree with Jack and would hold that Dred Scott was not a case of narrow judicial constructionism, but the opposite- that Dred Scott was an early example of JUDICIAL ACTIVISM, precisely what conservatives warn about time and time again. Jack mentions Bork, and I could mention Thomas Sowell in his “Knowledge and Decisions”, where he maintained that Dred was the first judicial activist interpretation of “due process” in that it called for the Supreme Court to “approve” the SUBSTANCE of duly enacted legislation. In other words it was the first historic attempt to move beyond due process in a procedural sense and into judicial POLICY MAKING, although the full implications were not clear for a number of years.
If black liberals are using Dred Scott as a club to beat you with, or express alarm about “constructionist” judges, they are on questionable ground.
Dred Scott as a code word for “pro life” sez the liberals? What a joke. I think Bush was dead on, and I think he had Bork’s argument in mind about Dred Scott being an example of judicial activism. Liberals never want to face this history. If a decision does not fit their twisted vision, then it is “constructionist”. If it is “progressive” then OK, break out the champagne. But black folks of all people should be wary of judicial policy making. We have found out the hard way what means, from Dred Scott, to the cynical deceptions of “Affirmative Action” to the farce of busing for racial “balance.”
The whole issue brings up the knee-jerk faith too many Negroes place in government authorities, but history shows numerous ways in which government is anything but “beneficial” where blacks and other minorities are concerned.
It was government after all that fostered, promoted and protected slavery in the early days. It was government that forbid interracial marriages way back when in colonial days and later, when before such unions were legal. It was government that brough us the Dred Scott decision and the racist Plessy vs Ferguson. It was government that “promised” black folk “forty acres and a mule” after the Civil War and never delivered. It was government that signed numerous Indian “treaties” promising peace “as long as the waters run”, treaties not worth the paper they were written on.
It was government that inaugurated and enforced Jim Crow laws that consigned blacks to second class citizenship for almost a century. It was government that forced the removal of thousands of citizens of Japanese descent into camps during WWII, while exempting certain others. It was government that has enforced and endorsed numerous measures damaging to blacks, from enforcement of biased “restrictive covenant” contracts, to “previaling wage” clauses or cleverly written union contracts that froze out black labor, to holding millions of acres of land off the market, containing billions of dolars worth of jobs and housing to the benefit of better off “environmentalists.”
Our friends in government are also repsonsible for the subsidizing of illegitimacy and dependency through a welfare system that has wreaked havoc on the black community. Yet again, it is our “friends” in government that have weakened crime controls and imposed “assembly line justice” that sees black criminals “rotated” time and time again out of the justice system to go back and yet again rob, rape and murder in the black community. It is government that has imposed the cynical, deceptive and discriminatory regime of affirmative action quotas, benefiting few of the black poor but cashed in on by the better off, including white women, an “oppressed minority” making up almost half the population or recent immigrants whose parents no themselves have lived in the US.
It is government that in a short while will impose the “benefit” of gay marriage on society, at a time when it is crucial that the black community build stable and effective two-parent families. The list could go on, but despite this history, many Negroes still call for yet even MORE government to “solve” the problems of black people.
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