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.

2 comments:

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.

Anonymous 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...).