Dred-ed Anniversary

Mark your calendars: 150 years ago Tuesday, the Supreme Court issued a long, muddled opinion in Scott v. Sandford, which Chief Justice Charles Evans Hughes later said was the Court’s greatest “self-inflicted wound.” The case was brought by Dred Scott (right), a Missouri slave. Chief Justice Roger Taney, writing for the Court, ruled that African-Americans are not citizens under the Constitution, and could not file suit in federal courts.

The Court also ruled that Congress could not prohibit slavery in the territories. The anniversary is being marked  – not celebrated – in numerous ways, including events over the weekend in St. Louis, where the case originated. And next month, at Harvard Law School, professor Charles Ogletree’s Charles Hamilton Houston Institute for Race & Justice will stage a re-argument of the case, with the participation of Justice Stephen Breyer and D.C. Circuit senior judge Harry Edwards, among many others. “No decision in our history has done more to injure the reputation of the Court,” wrote the late Court scholar Bernard Schwartz, who put the Scott decision at the top of his list of the Court’s worst rulings.

Comments

[Kevin Baker]

Hmm.... That was not exactly what I meant to say. Expanded commentary here.

http://smallestminority.blogspot.com/2007/03/dred-scott-and-legislating-from-bench.html

[David Hardy]

I found in a volume of American State Trials, a trail where a young lawyer named Roger Taney defended a minister accused of violating Maryland's slave codes by giving a strong (to the point of suggesting that if the slaves rose up, it would be entirely justified) antislavery sermon, to an audience which included slaves.

Taney gave a heck of a closing argument and won, quoting Patrick Henry, Jefferson and other framers who had said as much as what the minister said, and asking if the founding fathers were to be considered criminals, too.

[Kevin Baker]

Chief Justice Taney reached a deplorable conclusion, but he did it based on a flawless understanding of the law as it stood, and of the meaning and intent of the Bill of Rights. The Justice wrote that blacks - free or slave - could not be citizens because: "For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

He was right - they would. Faced with decades of precedent, regardless of his personal opinion (and that of six other Justices) he didn't have a lot of choice (though he far overstepped what was legally necessary.)

But upon passage of the 13th and 14th Amendments after a bloody war over just who was and wasn't a citizen, the Supreme Court saw to it that those privileges and immunities remained restricted from blacks, and later, anyone else the majority felt necessary.

Say what you will about the decision, Chief Justice Taney declined to "legislate from the Bench" in 1857. Chief Justice Waite in 1875 took it upon himself to do that in U.S. v Cruikshank.