The Worst Argument About Dred Scott

ColumbusGuy is correct when he posts that people mindlessly compare Supreme Court cases they don't like to the Dred Scott decision. But he's wrong when he writes:

Dred Scott is predictable; as easy as it is to take potshots at it, the fault lies with the Constitution and the society that defined, implicitly, anyway, humans as property. Scott may or may not have been rightly decided given the assumption that humans are property, but to pretend that it was wrongly decided because humans cannot be property is to evaluate it according to a fantasy world that never existed.

The decision is not predictable, unless one looks at the revolting motives of Chief Justice Taney. You don't have to make the historical fallacy of judging people by today's standards to realize this is a rotten opinion. I think "self-inflicted wound," as Charles Evans Hughes calls it, fits.

ColumbusGuy writes as if Taney's hands were tied ("It's...an abomination that humans can be property, but that's the proposition Taney was given at the outset"), and he could hardly have done any different, or better. Nonsense. If this were true, how were there two lengthy dissents, taking apart Taney's logic step by step? (Plessy, the case ColumbusGuy thinks is worse, had only one dissent.) If it was slam dunk, why was it so controversial that even the pro-slavery justices who agreed with Taney needed to make their positions clear?--the seven-vote majority opinion included six concurrences.

Without going into the long history of the case, Dred Scott was a former slave suing for freedom. His proceedings had gone through state courts and later transferred to the federal system. The Supreme Court decided, I believe against what every other court had said to that point, that Scott, as a black man, had no standing to sue. While this is bad enough, Taney could have stopped there and dismissed the case for lack of jurisdiction, but he was just getting warmed up.

He went on to rule that no black person--even a free one--could ever be a citizen of this country, that a slave who'd been freed didn't necessarily stay free (some felt once free always free) and, above all, that the Missouri Compromise was unconstitutional. According to Taney, Congress could not declare that a citizen would lose his property (i.e., slaves) just because he traveled to a new state. This overreaching had the Supreme Court not only trying to force slavery on new territories, but even suggested, logically, that northern states might not be immune.

Essentially, Taney was giving the finger to the North, as well as other anti-Slavery forces. He was saying "perhaps you thought slavery could wither away--perhaps you even had the nerve to believe you could vote it away--sorry, but our Constitution doesn't merely allow slavery, it commands it be favored, allowed to exist unfettered--our Constitution makes the US a nation of slavery so long as one person favors it, and makes the Supreme Court the final arbiter of that--and it also commands that never, ever, will a black be a human."

Predictably, Republicans were outraged, and condemned the opinion. (The Democrats generally defended it, of course, and many tried to vilify the Republicans for being so openly against the Constitution.)

Needless to say, Taney did not get the last word, nor did he decide the issue once and for all, as he'd hoped. And even after we'd fought a bloody war to refute him, the Republicans were still in no mood to let it rest. In 1865, the Republican-controlled Congress refused to have Taney's bust put alongside all the other Chief Justices'. As Charles Sumner put it at the time,

....the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion. You have not forgotten that terrible decision where a most unrighteous judgment was sustained by a falsification of history. Of course, the Constitution of the United States and every principle of Liberty was falsified, but historical truth was falsified also. . . .

I'd give Taney the bust, but Sumner's got it right.

Columbus Guy says: Er, I appreciate LAGuy's passion, nay, bravery, in saying Dred Scott is an abomination and Taney was a racist. I'm not sure he's broken any new ground there, but, hey, give it to him.

This does, I think, demonstrate exactly the point I made: He delves right into the passions of slavery and even the Civil War, without quite acknoweldging the legal reality of the time: Humans could be property. If that's the proposition you start with, I'm not sure there's any value in complaining that the supreme court is the final arbiter (a position I in fact challenge, but so far as I know is absolute law among the vast majority of poitical and legal commentators, so far as I know including LAGuy) or even LAGuy's hyyperbolic "[the Constitution] also commands that never, ever, will a black be a human."

Felix Frankfurter, in his book "The Commerce Clause" (written in 1936 and 1937, more than 60 years after the Sumner quote LAGuy offers as evidence of his position) holds Taney up as the greatest chief justice in history to that point after Marshall. I happen to disagree with Frankfurter's main thesis in the book, but it does offer a more, shall we say, dispassionate view of Taney than LAGuy's caricature. Taney was a racist pig? Yes, well, so were nearly all Americans of the time, including those who adopted the Constituion itself and all the laws that followed, and for that matter even including those Americans who opposed slavery. If you factor that in to your analysis, I'm even more skeptical after reading LAGuy's attempted justification than I was before that Dred Scott is any worse than any number of supreme court cases; it merely looks worse because we so hate the principle it stands for and the consequences of the war so large. But, hey, LAGuy, you ought not be so hard on yourself; your post was merely unorginal, not the worse argument about Dred Scott. If you want to write that slavery, racism and poor legal analysis are bad, knock yourself out.

UPDATE: LAGuy's passion is so strong that I had hardly even posted before his lengthy response below. I decline the invitation to "respond" to his argument until he makes one, and stops pretending I was defending Dred Scott. [LAGuy: Of course you're defending it. You're saying, given the times and given the Constitution, it's a perfectly reasonable opinion. I've explained why it's not, and that's the debate you don't want to join.] I'll respond if you, LAGUy, can explain how saying a decision "may or may not have been rightly decided" equates to saying it's a "slam dunk", in your words imputed rather gracelessly to me. [LAGuy: You're the one who called the decision "predictable." You keep harping on how important it is that humans could be property then. I'm saying we all know that, but it doesn't excuse Taney's opinion, which goes much further.] But you might want to take a cold shower first, focusing the spray on the head. Meanwhile, any readers wanting to see a poor quality high school paper [LAGuy: Nonsense, this would get an A in many high schools] arguing that Dred Scott was bad [LAGuy: you keep using this smokescreen--that my argument is about morality, and that I'm calling Taney a racist and trying to prove slavery is wrong. It reminds me of the way Democrats claimed the Clinton impeachment was all about sex. The argument is about how the opinion was poorly reasoned and a major case of overreaching.] may continue reading below.

LAGuy responds: ColumbusGuy, rather than repeating your argument, how about responding to mine?

When I quoted Sumner, did you see the word racist? I quoted him to show--at the time--that people were quite aware that Taney made a rotten argument--that he was a falsifier of both the Constitution and history. He wrote his own pro-slavery views into our law. Please show me where the 1850s Constitution says Congress can't create new territories with no slavery? Please show me where in the Constitution it says blacks can never become completely free? Please show me where in the Constitution it says under no circumstances can blacks be considered citizens of the United States? All these things were being done, and Taney created his phantom, pro-slavery Constitution, to strike them down.

The Founding Fathers knew slavery was a problem and decided to put it off (till 1808) to get a nation started. Taney twisted their (at best) neutrality into a "slavery, now and forever" platform. You keep hiding behind the fact that humans "could" be property. So what? Taney went far beyond that and declared (in an opinion that overreached, just so he could make his personal preferences law) that they must be property, so long as one white person wishes it. He ignored the laws of the people, the history of our nation, and the words of the Constitution, and for that reason it's a horrible decision.