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« Kangaroo Court | Main | The Morning Wrap »

March 05, 2007

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.

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