Let us, therefore, test the decision of the Dred Scott Case by the test thus set up by the Supreme Court and its eloquent defender

IN GOING OVER the Dred Scott decision as analyzed by Louis Boudin at such length, I've learned a lot more about it than I ever learned in any of my reading or any of my history classes in school.  I barely learned anything about it in school and not much more than the immediate evils of putting the Scott family back into slavery and the declaration that Black People have no rights that white courts and judges and "justices" need to consider much.  Which, of course, is evil enough to damn Taney in the judgment of history, his concurring "justices" as much so.  But I think a lot more than just that was behind the decision and the intentions of the "justices" in it and a lot of it looked past the record of the case they were allegedly confined to.   They were definitely planning for the future and that, in the new power they gave themselves in that decision, that future would be one of racist inequality, exploitation and judicial collusion with white supremacy, exactly what we are seeing in the Roberts Court and the Republican-fascists of the Senate Judiciary Committee this very week.   

I will state now that I think their motive in creating their power to declare the Missouri Compromise unconstitutional was so they could knock down future laws that endangered not only slavery but the white supremacy that they claimed was the correct reading of the Constitution.   Just as the Roberts Court has nullified the Voting Rights Act using that power handed to them by the racist Roger Taney and his associates in that case.   I wanted to point that out before going further down into the stinking tank of that decision and its corruption.

Let us, therefore, test the decision of the Dred Scott Case by the test thus set up by the Supreme Court and its eloquent defender.  Was there any necessity for declaring the Missouri Compromise Act unconstitutional in order to do justice to any litigant or protect any litigant's rights?  Tested by that "acid test" the answer must be in the negative.  There is not even any room for argument.  What wrong would have been visited upon either of the litigants of the Dred Scott Case by the illegal excesses of Congress but for the declaration of the Missouri Compromise Act unconstitutional?   Chief Justice Taney himself said that to the litigants it would be quite immaterial whether the judgment below was affirmed or the suit dismissed.  The excuse that a formal error in the record must be corrected in order that it may not be erroneously cited as a precedent - assuming that to be good enough in a constitutional case - was made in bad faith because the judgement that he wanted to pronounce could have been pronounced without declaring the Missouri Compromise Act unconstitutional and no error of any kind committed by the lower court was in fact corrected by declaring that Act unconstitutional.  

This charge of bad faith which is proven to a mathematical demonstration against Chief Justice Taney becomes even more flagrant with respect to his associates.  Chief Justice Taney at least tried to cover his nakedness with a fig leaf.  The other judges were shameless.  Judge Grier in his very brief opinion concurs with both Judge Nelson who voted for affirmance and with the Chief Justice who voted for reversal, saying that it makes no difference to him which is done.  Putting the case very bluntly he says: "Whether the judgement be affirmed or dismissed for want of jurisdiction,  it is justified by the decision of the court, and is the same in effect on the parties to the suit."

Judge Campbell does the same: After writing a lengthy opinion concurring in declaring the Missouri Compromise Act unconstitutional, he sums up the following sentence:
"I think the judgement should be affirmed on the ground that the Circuit Court had no jurisdiction, of that the case should be reversed, and remanded that the suit may be dismissed."

Judge Catron begins by saying that the Court has no right to review the question raised by the plea in abatement, which means that the judgment must be affirmed (unless of course, the judgment should be reversed and the decision given in favor of Dred Scott as recommended by Justices McLean and Curtis),  and then votes for dismissal.

We thus have three of the judges expressly falsifying the flimsy excuse given by the Chief Justice in the name of the majority for the assumption of the power to declare the Missouri Compromise Act unconstitutional.  But the case of Chief Justice Taney and the majority of the court is even worse than what has already been shown.  For there is another element of the case which we believe to be decisive on this question.  We must admit, however that we have never seen this point made before, and that in view of the fact that this case has undergone examination at the hands of the most learned of our profession, some of them more critical of the majority, when present it here with some diffidence.  But, to paraphrase the language of some of the judges of the majority in this case, "we are only discharging our duty" as an honest historian, and we could do no less and remain such.

The criticism of the profession against the decision of the majority follows in the main the point made by Judge Curtis in the conclusion that the Federal courts have no jurisdiction in the matter,  it had no right to proceed further and to consider the case upon the merits.  As we have already said, we consider this argument unanswerable.  But the point thus made does not cover the entire ground.  As we view it,  the Court had no right to declare the Missouri Compromise Act Unconstitutional even after a consideration of the case upon the merits.  Not even on the supposition that the merits of the case were gone into for the purpose of finding additional grounds in support of the contention that the Federal courts have no jurisdiction.

I will leave you on that bit of a cliff hanger because I know this level of detail is taxing when so much else is happening.   

If you think my introduction above was over reaching, they were certainly aware of what they were doing and, if they hadn't considered the kind of reaction they could expect from it,  the dissent of Curits and McLean would have clued them into that.  They were making a very high states gamble and they could certainly not have been doing it merely to put the unfortunate Scott family back into slavery, they had their sights set on something of the proportions of what I suspect was their true goal, of not only protecting slavery where it was but forcing it on the free states, no doubt continually finding under the "rights of property" that any hindrance of slavery in practice in the free states, as the slave power brought their "property" north to work for them, to rent out in free states, probably, with further action of the courts, on land purchased by slave-holders in free states, etc. their goal was to force slavery on the rest of the country and enhance its role in the economy of the country, habituating even those who may have been only mildly opposed to it to its presence among them.* 

Just as the Rehnquist and Roberts Court are doing with their attacks on and rollbacks of the progress towards equality and rights and a livable environment using the tools that Taney and company handed to them.  

* Grier of Pennsylvania, in his banal and dishonest concurrence was certainly quite willing to go along with even the most obviously dishonest schemes in that direction.  Along with James Buchanan of the same state, who is widely believed to have encouraged Grier to concur with Taney and the slave-power.  The financial class of oligarchs would certainly have gotten used to doing it and, with them, the other aristocrats in at least some of the Northern states.  Hamilton argued for the adoption of the dirty deal with the slave-power explicitly on that ground of profitability due to slave-labor produced crops.