Tuesday, October 12, 2004

The Real Issue with Dred Scott

I want to bring up what I think is a misreading of the Dred Scott decision so far on PolySigh. In an Op-ed in this morning's Chicago Tribune, Steven Lubet, a Con Law professor at Northwestern, rightfully argues that George Bush made a huge gaffe in trying to argue that the Dred Scott decision was wrong because the judges claimed the Constitution allowed slavery. Hmmm...funny little thing is, the judges correctly interpreted the Constitution according to Bush's own judicial standards. After all, the Constitution DID allow slavery as a personal property right and did not guarantee citizenship rights to African Americans. Northern abolitionists (today's equivalents would be gay rights advocates) were infuriated and mobilized to elect Lincoln as President resulting in the secession of the South. It wasn't until a CIVIL WAR (remember THAT war?) and the 13th and 14th Amendments which occurred AFTER Scott reached the Supreme Court that slavery as a founding economic and political institution was rendered "unconstitutional". So it is not so clear that Justice Taney decided the case "wrongly" according to the Constitution at the time. Bush, Scalia, Thomas and other "strict constructionists" would have supported the decision then.


Philip Klinkner said...

Dorian, you're absolutely right. And remember, the problem most people had with the case at the time was not that it denied blacks any rights, but that it denied Congress the power to limit slavery in the territories. If Taney had argued that Scott, as a black man, did not have standing to sue in federal courts, the case would never have been as important as it was. Many of those who opposed slavery did so for rather racist reasons.

Palooka said...

That's not what Bush said, and that's not what Scott v. Sanford said either. This post represents a nearly total misunderstanding of Scott v. Sanford.

Be honest, have you ever read the Dred Scott case? EVER? Because the question wasn't if the Constitution prohibited slavery or not, it was, in Justice Taney's words, "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."

Now, the Constitution allowed citizenship of native born inhabitants to be wholly a product of state standards. The Supreme Court, however, ruled that blacks can not be citizens. Hmmm, beginning to see the picture here?

The question Taney answered was not if the Constitution guaranteed citizenship to blacks (the fact is it guaranteed citizenship to NO ONE), the Court said blacks CAN NOT be citizens of the United States. There is no constitutional basis for that.

While the Constitution allowed for slavery in the several states, the Constitution did not force free states to allow individuals to take their slaves in to their territory. That's preposterous. Now, clearly the Constitution did not allow one state to abridge the sovereignty of another, and free slaves present in that state. But that is not to say slave owners had a right to bring their slaves and retain them while IN free states. But that's a separate point. You've got your facts wrong and have muddled your analysis terribly. Again, the Constitution guaranteed NOBODY the right to US citizenship. That was a state matter, which the Taney court abridged in order to bring some sort of resolution to the issue of slavery. Well, they were right, but not in the way they hoped--setting in motion the Civil War and permanently resolving the issue. This, of course, serves as a warning for courts (hint, Roe v. Wade) who try to "resolve" contentious moral questions by reading non-existant solutions in to the Constitution.

Your misunderstanding of the Dred Scott case and its facts is so great, I really don't know where to begin. That link isn't working, or I'd read that to gain a better bearing on your position.

MWS said...

It has been a tradition in constitutional interpretation that the Court decide cases on the narrowest possible grounds and avoid addressing issues that it doesn't need to. As I recall, the Dred Scott case was really over the constitutionality of the Missouri Compromise. Justice Taney was criticized for going far beyond what was necessary to decide the case when he ventured forth about the inability of blacks to become citizens. In fact, some think that this part of the decision was essentially dictum (i.e., a statement or comment not necessary or essential to determining the case at hand). Assuming that the strict constructionists believe in deciding cases on the narrowest grounds possible, they may well have issued a much narrower decision that did not implicate the general right of blacks to be citizens. I don't know whether Taney was right in his interpretation, but it was certainly a much broader decision that it needed to be.

Thomas said...

It will come as news to a great many people--including Professor Lubet, I hope--that Dred Scott was correctly decided, as a matter of constitutional law.

I suppose that the rest of Professor Lubet's indictment of Bush would equally apply those who believe the case was correctly decided.

It is simply ignorance to suggest that the justices "correctly interpreted the Constitution according to Bush's own judicial standards." Almost every serious scholar believes that Taney's opinion got the history wrong--that is, they believe his opinion doesn't correctly interpret the constitution according to Bush's standards.

Bush stands with those scholars, and with our greatest president--Lincoln-- on this on, which is fitting.

Lincoln said "I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true; and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.

On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth; and, as a sort of conclusion on that point, holds the following language:

"The Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of `the people of the United States,’ by whom the Constitution was ordained and established; but in at least five of the States they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption."

mk said...

The Dred Scott decision is wrong because it declared that Blacks could not be citizens and that they were never intended to be citizens which is historically incorrect. DS hinges on a question of citizenship not on whether or not slavery is illegal. Anyone who has actually read DS or is who is familiar with US history can see this (Black people fought in the revolutionary war - Black people can be citizens...).