On July 4, a consideration of Dred Scot

(Dan here…late posting)

by New Deal democrat

On July 4, a consideration of Dred Scot

On a 4th of July on which the President has expressed open longing for a lifetime term, and murmurings that a significant share of enlisted men in the military would be willing to overturn the Constitutional order should he call on them to do so, I’m not too interested in empty sloganeering celebrations.

With the obvious exception of African slaves, the Constitution was a very forward looking document for most people when it was adopted. But the Founders could not anticipate every shortcoming, and some of them are so entrenched that it would be nearly impossible to obtain the required supermajority to change them. How many saeculums must such shortcomings be sacrosanct against the will of the majority?

For example, in nearly every country that adopted the Madisonian Presidential system, the result has been a degeneracy into Presidential dictatorships. The only counterexamples are some hybrid systems like France which have both Presidents and Prime Ministers. I never cast a vote for a Presidential (vs. Parliamentary) system. Did you?

Meanwhile, in our own country, in two of the last five Presidential elections, the popular vote loser has been crowned the winner. I never signed up for the Electoral College. Did you? Even so, if 200 years ago, the Congress had placed the Florida panhandle in Alabama, and the upper peninsula of Michigan in Wisconsin, both Al Gore and Hillary Clinton would have won. I never agreed that such accidents of history should be so dispositive. Did you? Have votes on such been held in our lifetimes, or indeed the last three or four lifetimes?


Which brings me to Dred Scot. When I was a kid, I was taught that the Dred Scot decision held that negro slaves had no rights. . But it was actually much, much worse. For, as I learned, the Supreme Court invalidated the Missouri Compromise. I was never taught what that really meant. What the Supreme Court said was that the Congress did not have the power to regulate slavery within the Territories. Thus it could not force a Territory to enter the Union as a free State. Worse, the reasoning openly invited the interpretation that States couldn’t forbid slavery, either. If a slaveowner took his slaves from, say, Alabama to Massachusetts, then Massachusetts was bound to respect his contract rights of ownership in the slave.

Beyond that, there was political meddling in the handling of the case between President-elect Buchanan and several members of the Court. Buchanan wanted the matter settled before he assumed office, so that he could just throw up his hands and declare himself helpless. Taney’s correspondence openly indicated that he wanted the to settle the matter of slavery for all time, in favor of the South.

In the 1800s, lifespans being what they were, the average Supreme Court only served about 10 years on the Court. The new Republican party adopted on its platform that slavery should not be extended to any new States. The method by which such progress would be made was one Justice’s funeral at a time. Needless to say, that wasn’t how it happened.

As a kid, I was taught that the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments meant that Congress took over from the States the protection of civil rights in the country, the States having obviously proven inadequate to the task. Fundamentally, I think that is exactly the correct interpretation.

Each of the three Amendments contains a section that states, “The Congress shall have power to enforce this article by appropriate legislation.” In reaction to Dred Scot, this explicit grant to Congress is a direct rebuke to the Courts. In other words, even if the Courts do not believe that a particular form of protection is necessary, or that it steps on the previously granted rights of the States, the Congress has the power to Act for such protection anyway. This fundamental truth was marginalized and ignored by the Roberts Court in the Shelby County case.

On July 4, 2018, we find ourselves on the precipice of a Court which, with the begrudging acceptance that slavery is not permissible, seems bent upon returning us to the jurisprudence of 1857.