Instead of being part of the dead past, the decision in the Dred Scott Case is part of the living law administered by our Supreme Court today

IN PREPARING THESE POSTS on Louis Boudin's exposure of the dangers and evils and origins of the role the Supreme Court has created and extended for itself, which the Rehnquist and, now, Roberts Courts have extended into places that become extremely dangerous, I read some of the available contemporary reviews of Government by Judiciary, some of them approving, some of them obviously not liking his book at all.  But in none of the reviews I've been able to find online did anyone actually refute what he said in the book,  the negative reviews were more of a promissory note that the refutation of what he said was available, though they didn't produce it.   

I have decided to jump clear to the second volume where the infamous Dred Scott decision is discussed with Boudin's contention that it is where the modern judicial power was created in that most disreputable and vile of Supreme Court decisions.*   

The central danger in the government by judiciary set up by the Court is that it is not subject to abolition  except through the Supreme Court's own action.  As Louis Boudin put it:

  “arms” are of as little importance as are “men,” in our theory of government, unless, of course, the “men” happen to be judges, particularly judges of the United States Supreme Court. A decision of the U. S. Supreme Court can, therefore, be overruled only by that court itself, or by special amendment to the Constitution. And even constitutional amendments are effective only in so far as the U. S. Supreme Court approves of them, as we shall have occasion to show in the course of this work. And the United States Supreme Court has expressly held that the Dred Scott Case had never been overruled. That settles the “field of battle” and the “force of arms.”

The use of, particularly, the 14th Amendment, one of those amendments passed to "overturn"  the Dred Scott decision which, in effect, turned African descended Americans into sub-humans in so far as the real, active Constitution defined by the fiat of a majority on the Supreme Court, is especially pressing because the Roberts Court is about to make similar law nullifying long enjoyed rights of Women and others and a long, long list of other law, some of it made the legitimate way through legislation, some of it arguably made by the Supreme Court as in Roe vs. Wade - it's funny that it's generally the Court-"made" law and decisions extending rights to Women and People of Color which the Rehnquist and Roberts Courts have attacked with such success.  You'd might imagine you hear the ghost of Roger Taney laughing as they use what he and his slave-power colleagues did in Dred Scott because I think in nothing we've witnessed in living memory is that power made more obviously the real Constitutional order of the United States. 

 

CHAPTER XX   DRED SCOTT

THE United States Supreme Court does not like to be reminded of the Dred Scott Case. Which is nothing strange. In the house of the hanged the rope is not a welcome topic of conversation. But the Supreme Court does not stop at merely avoiding the topic. In at least one case it has done something with reference to it that is passing strange, to say the least. The Dred Scott Case has been omitted from the list published on the occasion of the Centenary of the Court, enumerating the cases in which the Supreme Court is supposed to have declared Federal statutes unconstitutional. 

This omission is particularly surprising because the compiler of the list was evidently anxious to make it as long as possible.  Indeed, so anxious was he to make a “showing,” that he even included one case that never occurred, and a few that did occur but in which no laws were declared unconstitutional. Under these circumstances it is truly astounding to have him leave out the first real case in which a real law was actually declared unconstitutional. And that case—a case of the intrinsic importance of the Dred Scott Case. For it must be remembered that the Dred Scott Case is the most famous case in the entire history of this country both as to the issues involved and the consequences that followed it. The issue involved the entire future development of the country; and the result was the most bloody civil war of modern times.

It is true that neither the decision nor its consequences were of a nature to be proud of. But other courts have sinned against freedom, and other cases have led to revolution and civil war.

There was the Ship-Money Case, for instance. And there was Godden v. Hales.  The first is as inimical to the cause of freedom as the Dred Scott Case and the second almost so.  And like Dred Scott it led to revolution and civil war, in the course of which Charles the First lost his head.  The second was not much better in  character, and it led to another, even if less bloody, revolultion in which James the Second lost his thorne.  But we do not find the English judges trying to hide these cases from view.  Why, then the peculiar sensitiveness of our Supreme Court? 

The explanation of this strange phenomenon is to be found in the peculiar relation of the U. S. Supreme Court to the Dred Scott Case, which is radically different from the relation of later English courts and judges to the Ship-Money Case and Godden v. Hales. To the present-day English courts and judges the two English cases are a matter of the past — a past with which the English courts have completely broken, and about which they can therefore speak like other Englishmen. But Dred Scott is not a matter of the past as far as our Supreme Court is concerned. Instead of being part of the dead past, the decision in the Dred Scott Case is part of the living law administered by our Supreme Court today. More than that: The Dred Scott decision is the very foundation of our constitutional system as it exists today. Popular belief and professional opinion to the contrary notwithstanding, Taney, and not Marshall, is the Father of the Judicial Power. And its foundations were laid not in Marbury v. Madison, but in Dred Scott v. Sandford.

Marshall was at most a pretender to a throne, while Taney established a real kingdom.  But even Marshall's pretensions did not extend to the vast domain which Taney actually conquered.  In Marbury v. Madison Marshall put forward the comparatively modest claim that in passing upon the right of Mr. Marbury to be Justice of the Peace of the District of Columbia during the next few years, the judges had the right to compare the law of Congress with the Constitution on the question of the power of the Supreme Court to issue a writ of mandamus, and, if they found that the law of Congress was not in accordance with what they believed to be the provisions of the Constitution, to disregard the law of Congress. But in the Dred Scott Case, Taney and his associates undertook, in the language of Mr. Justice Wayne, to settle by judicial decision the peace and harmony of the country.

It is but natural that in the excitement which followed this decision, because of its effects upon the concrete question which then agitated the public mind, the revolution which it effected in  our constitutional system should have received less attention than it deserved and would have received at any other time.  Not that it was not noticed by the discerning.  But the general  criticism was directed to the attempted settlement of the Slavery question rather than to the change in our constitutional system which was involved. And perhaps properly so: The attempted disposition of the Slavery question made in the Dred Scott Case endangered the entire existence of the Union under the Constitution. The particular place of the Judicial Power under that Constitution may
therefore have been rightfully considered a subordinate question, even from the point of view of those who could clearly see the general constitutional implications of that momentous decision. The Union has been preserved without Slavery, notwithstanding the Dred Scott decision. But with it has been preserved Chief Justice Taney’s decision as to the Supremacy of the Judicial Power.

This statement may come as a shock to those who were brought up on our standard histories, all of which assure us that the Dred Scott decision had been overruled “on the field of battle” “by force of arms.” But “arms” are of as little importance as are “men,” in our theory of government, unless, of course, the “men” happen to be judges, particularly judges of the United States Supreme Court. A decision of the U. S. Supreme Court can, therefore, be overruled only by that court itself, or by special amendment to the Constitution. And even constitutional amendments are effective only in so far as the U. S. Supreme Court approves of them, as we shall have occasion to show in the course of this work. And the United States Supreme Court has expressly held that the Dred Scott Case had never been overruled. That settles the “field of battle” and the “force of arms.” As to the constitutional amendments—the so-called “war amendments”—it is clear that whatever they may have done to the particular problem involved in the Dred Scott decision, the problem of Slavery, they certainly did not touch the general constitutional change effected by that decision—that of the Supreme Court arrogating to itself, and thereby to every other court in the land, the right to settle by judicial decision the peace and harmony of the country, i.e. raising the Judiciary to a position of supreme political power. In fact, as we shall see when we come to discuss the Fourteenth Amendment, Taney’s political doctrine as laid down in his opinion in the Dred Scott Case, having survived the Civil War, Taney’s successors seized upon the “war amendments,” which were supposed to have overruled the remnants of Dred Scott decision that had survived the smoke of battle and used them as an engine for the further aggrandizement of the Judicial Power first effectively established by the decision. 

In Overturning Roe The Roberts Court Is Writing A Dred Scott Against Women

In reviewing this section and reading about the history and the case, I have come to the conclusion that the majority of the majority in Dred Scott were actively trying to shape the future in favor of the retention of slavery as they saw the ability of the anti-democratic Senate and the Southern delegation to the House, along with several of the worst presidents in the history of the country to protect it was receding.   I think they had a racist, an ideological and a financial interest in what they were doing just as certainly as John Marshall and his slave-holding colleagues did almost always in their rulings dealing with the legal rights of slaves.

These deluded, isolated legal thinkers, removed from ever having to face voters or even reappointment with re-review,  certainly not the voters of the entire country over whom they wielded power, really believed that by judicial fiat they could hold the future back.  If any of them imagined the Civil War their actions not only made inevitable but encouraged,  the encouragement of their Supreme Court white supremacist law making as a zero-sum game of gains and losses of rights for the imagined white race, what today's white supremacists and male supremacists are motivated by and so it, as well, has had an enduring place on our real life as a nation and on our laws.  

Those arrogant "justices" really did believe that they could settle that question once and for all, depending on the extreme difficulty of amending the Constitution, leaving the rest of it to the corruptions baked into the structure of the government by the Constitution, the anti-democratically constituted Senate, the Electoral College, the means of states and lower courts to deny the most basic of rights to Women, to People of Color, the poor and the dispossessed, the inevitable corruption of state and local governments by the wealthy and, so, powerful.  

But the result was perhaps the first and worst of the modern, industrial enabled wars in American history - from an American point of view, at least.  The wisdom of the "justices" was more than matched by their arrogance of office and the kind of shortsightedness that protection of a fortune brings.  

I have no doubt that there is a good possibility that an arrogant servant of oligarchy and male supremacy such as  Alito or Gorsuch or  Coney Barrett who writes the main decision overturning Roe vs Wade may well go down with Taney in the history of Supreme Court infamy, which might be satisfying on a somewhat base level.  But what is really infamous is that they and future courts should regularly perform one of the greatest evils that survived as the law of the land.

*  It's not that the intervening material isn't important or fascinating, if you find that kind of thing fascinating, it is that the Court and some of the Federal Courts, right now, are extending the powers to nullify democracy right under our noses and it's important that people understand how dangerous that is.