Confederate "Heritage" Month 2022, April 30: The "Dred Scott" decision and the politics of a radicalized Supreme Court

This year's daily April posts against Confederate "Heritage" Month spilled over into May until today. Earlier in this year's series of posts, I discussed the Supreme Court catastrophic Dred Scott decision (1857).

During the first week of May, we've seen a leaked Supreme Court majority opinion draft by Justice Samuel Alito overturning Roe v. Wade that reminds us that a radicalized, crassly ideological, reactionary Supreme Court is by no means only a phenomenon of the 1850s. As of this writing, the decision described in Alito's leaded draft has not been formally announced.

Dred Scott still stands as the Supreme Court decision most destructive in its immediate effects, and I certainly wouldn't want to deprive Chief Justice Roger Taney and his judicial confederates of that malign distinction.

But it has certainly not been the only one. Plessy v. Ferguson (1896) and Bush v. Gore (2000) are high on the list.

So the example of a radical Supreme Court as a significant anti-democracy actor represented by the Dred Scott Court is sadly still relevant.

Paul Finkelman in his essay "The Strange Career of Dred Scott: From Fort Armstrong to Guantánamo Bay" (in The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law 2010) describes the decision:

In Dred Scott the Supreme Court held three things: that blacks could never be citizens of the United States and, therefore, could never sue in federal court as citizens of a state; that Congress had no power to regulate the territories beyond setting up a minimalist form of government; and that the Bill of Rights was applicable to all federal territories and thus neither Congress nor a territorial government could ban slavery in the territories, because this would be an unconstitutional taking of property in violation of the Fifth Amendment.

This decision effectively eliminated the possibility of an abolition of slavery without widespread violence. In fact, the Kansas-Nebraska Act of 1854 had already set off five years of a mini-civil-war in the Kansas Territory ("Bleeding Kansas"). The Dred Scott decision added more fuel to the fire.

Finkelman gives further disturbing details of Chief Justice Taney's majority opinion:

Taney used some of the most racist language in American jurisprudence, arguing that at the nation’s founding blacks were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [1787] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” According to Taney, blacks were “so far inferior, that they had no rights which the white man was bound to respect.” [my emphasis]

He also notes:

Taney in effect argued that the Constitution created a kind of dual citizenship—state and federal—and that, while the states might make anyone a citizen, federal citizenship was limited only to whites because it was impossible for Taney to imagine that the Southern founders of the nation would have agreed to the Constitution if blacks were to be citizens.

And he writes of the political aftermath:

In reaching this conclusion Taney held that the Missouri Compromise, in force since 1820, was unconstitutional. This was only the second time in U.S. history that the Court had held an act of Congress to be unconstitutional. The last time had been in 1803 when the Court struck down a minor provision of the Judiciary Act of 1803 in Marbury v. Madison. But here the Court struck down a major statute — one of the most important in the nation’s political history — and one that had been in force for thirty-seven years. This was truly a bombshell and, combined with the racism of Taney’s opinion, led to a huge backlash against the decision in much of the North. [my emphasis]

He also points out that Taney was plainly wrong in his reading that the denial of citizenship to Black Americans was not what Sam Alito might call "deeply rooted in this Nation's history and tradition." In fact, Finkelman writes:

In 1787 blacks voted in at least six states (Massachusetts, New Hampshire, New York, New Jersey, Pennsylvania, and North Carolina) and thus took part in the ratification of the Constitution. By 1800 Vermont and Tennessee had also enfranchised blacks. ...

[Taney] was of course wrong in his assumptions. Many white Northerners who were conventionally racist and did not want blacks to have significant rights still believed they had some rights. They were shocked by the boldness of Taney’s racism and his slanted, one-sided, and often wrong history of the founding. Free blacks had, after all, voted in at least six states when the Constitution was ratified. It was simply impossible for these Northerners — typified by Lincoln — to accept that free blacks had “no rights” under the Constitution. Even some white Southerners were not willing to accept the idea. [my emphasis]

Confederate "Heritage" Month 2022, April 9: the white racist historical narrative behind the infamous Dred Scott decision

One notable aspect of Chief Justice Roger Taney is that he incorporated broad, ideological historical arguments about slavery and race.

David Thomas Konig discusses that outlook in an essay called "Constitutional Law and the Legitimation of History" in The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law (2010):

Taney’s opinion, however, did more than call on history to solidify slavery by showing it to be embedded in the American past, essential to its origins, justified by its religion, and inseparable from its present commitment to liberty. Those arguments had been made for decades, and by the 1850s there existed a widespread and deeply entrenched Southern tradition of using history to show the universality of slavery as a system and the suitability of Africans for it. Proslavery apologists, that is, already had constructed an “inescapable past” for American slavery and had used “history as moral and political instruction” to describe slavery as normal and racism natural.

Such a proslavery historical narrative brought the institution to the center of the national narrative and justified it against the rising din of antislavery argument, but it did not fully answer a new challenge emerging as Dred and Harriet Scott’s petition for freedom, commenced in the 1840s, moved slowly through the next decade. If history was to continue to provide the narrative basis for a jurisprudence of slavery and racial control, it had to address more than slavery and slaves: it had to respond to the historical reality of free African Americans whose past belied the conventional narrative, and whose vocal assertion of that fact contradicted the very foundations of proslavery jurisprudence. Taney had ample support for his version of the history of slavery; he had to create it for his version of free African Americans. [my emphasis]

In other words, the racial argument - which we could call Social Darwinism in hindsight (Darwin's On the Origin of Species wouldn't be published until 1859, and we can't blame Darwin himself for "Social Darwinism") - used to justify slavery also had the effect of excluding all Black people from equal humanity and basic rights. Taney and his Court raised this odious argument to the status of binding Constitutional law in the Dred Scott decision.

Konig goes on to remind his readers that the proslavery narrative was not only one that developed and hardened over time. It was also a contested narrative, although pitifully few leading American political figures were willing to challenge the notion of Black inferiority:

Taney’s opinion, to be sure, expressed the widespread and prevailing historical understanding among whites of the debased and excluded position of African Americans in the nation’s history. But it is vital for subsequent generations to be aware that such a view, however widely held in the nineteenth century, was nonetheless only one interpretation of that past available at the time, one that by the 1850s was coming under repeated attack as orthodoxy.

Confederate "Heritage" Month 2022, April 8: The Dred Scott decision and radical-right judicial activism

Given the radical shift of the Supreme Court against voting rights in recent years, it’s worth recalling what was surely the most destructive and radical decision of the Supreme Court, the Dred Scott decision of 1857.

Dred and Harriet Scott

In that case, the Supreme Court ruled that Black men and women “had no rights which the white man was bound to respect“ in the US Constitution.

The decision written by Chief Justice Roger Taney denied that even free African Americans in free states had any right to citizenship. (Technically, his statement announced the outcome; the 7-2 decision on the case included other concurring statements. But concurrence is concurrence.)

The case involved a married couple, Dred and Harriet Scott, both of whom were slaves. Their master/owner had taken them for a time into a free state. They argued that after they had lived in a state and a territory in which slavery was illegal, they should be considered legally free.

The special twist here is that the Scotts were not fugitive slaves. Their owner had taken them there on his own volition. The Constitution recognized that fugitive slaves could and should be returned to their legal owners.

The Dred Scott decision was part of long series of events in which the defenders of slavery sided with the power of the federal government against “states rights“. It had the practical effect of killing off the possibility that slavery could eventually be ended in the US by peaceful, legal means like compensated emancipation.

Because if slaveowners could bring their human property into a state or territory in which slavery was outlawed and still have their ownership protected, that radically undercut the ability of even free states to outlaw the Peculiar Institution (slavery). It blew the Missouri Compromise of 1820 - which set a geographical line banning slavery in territory north of it - out of the water.

It’s worth noting that the Scotts had a daughter, Lizzie Scott, who lived until December 12, 1945. She was alive at the time of the Dred Scott decision and lived through the times of the Civil War and the First and Second World Wars. That means that most people who turn 75 or older in 2022 were her contemporaries. The past isn’t always so far away as we tend to think.