CONTINUING ON with the last sentence from Government by Judiciary I left off with:
. . . This leads the writer just referred to to the conclusion that from the Chief Justices own point of view he was justified in considering the case upon the merits, and in the course of that consideration to declare the Missouri Compromise Act unconstitutional
Let us therefore follow Chief Justice Taney in the course of reasoning which led him to the conclusion that Dred Scott was still a slave. Chief Justice Taney himself states the problems involved in this part of the case as follows:
"In considering this part of the controversy, two questions arise:
1st. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore mentioned?
2nd. If they were not, is Scott himself free by reason of his removal to Rock Island, in the State of Illinois, as stated in the above admissions?"
The Chief justice then proceeds to consider at length the first question indicated by him - namely, the effect of the sojourn of Scott and his family at Fort Snelling in Wisconsin Territory. It is in this part of the case that the question of the Missouri Compromise Act was involved, and it is in this part of the opinion that the famous Act was declared unconstitutional. The substance of the argument was this: Slaves were not only property like any other property, but they were a class of property particularly favored by the Constitution and placed especially under its protective wing. By the Fifth Amendment to the United States Constitution, Congress is prohibited from making any law which would deprive any citizen of his property without due process of law. But by prohibiting slavery in the Louisiana Territory north of 36 degrees 30 minutes north latitude, Southerners who came to settle in that part of the Territory were automatically deprived of their slave-property - they could not, therefore, settle in that part of the national domain on terms of equality with citizens of northern states. For, says he, Northerners could bring all of their property with them without any loss to them, while the Southerners would lose their slave-property if they brought all of their property along with them. Therefore, the Missouri Compromise is unconstitutional as depriving citizens of the United States of their property without due process of law.
I'll break in here to point several things out, first, with this use of the ideolized Bill of Rights and in light of the ever more disillusioning study into the motives of the people who proposed the Bill of Rights, such as George Mason, Madison who, despite his deification often is found to have feet of clay, and the rest of the First Congress who wrote and began the amendment process to make them law, you have to wonder if the slave-power and their fellow finacier-land specuator, Indian exterminators didn't actually have such ideas in mind as they wrote it the way they did and adopted it. That is a question because I've not done the hard work of sifting through what writing they might have left that would confirm or refute such a contention. It does, though, show how dangerous it is having a fixed, written Constitution that becomes the tool of people such as the slavers and supporters of slavery on the Supreme Court - and such theoretical opponents as the earlier Joseph Story - when they uphold things like "property rights" over the most obvious of those rights the Declaration of Independence claimed that God endowed all People with, equally and "unalienably."
If the Civil War hadn't effectively overturned chattel slavery, such as the Taney decision rested on, at least overturned it in a theoretical way, in the unreality that the law so often is, I wonder if the goal of the Taney Court may not have been to effectively turn the entire country into states where slavery was extended everywhere. Under that ruling, its "precedents," slave power would have always held the majority in Congress and the Electoral College, despite what a majority in the country as a whole thought, and I'm sure with their newly created powers to overturn anything the Congress did and to effectively annul or add to the Constitution by judicial fiat, if they didn't foresee a day when they would force slavery on the entire country, in practice, from Eastport Maine to the point farthest West on the Pacific coast. A number of members of Congress, presidents, and "justices" on the court of their generation had dreamed of extending the United States slave power South by annexation and conquest so I don't think that question is at all out of the question and unrealistic. They would have eventually nullified state abolition in the North, I'm certain of that.
This part of the Chief Justice's opinion is not distinguished by great clearness either of thought or of language, and it is therefore hard to say whether the Chief Justice meant to say that the Fifth Amendement prevented the interference of Congress with slave property as such, irrespective of any discrimination which it might work between citizens of different states, or that the Fifth Amendment could be invoked in this case because as an actual fact, existing at the time of the adoption of the Constitution as well as thereafter, the abolition of slavery worked a discrimination between the citizen of slave holding states on the one hand and the citizens of free states on the other, in the use of common territories belonging to the entire people. It would seem from a passage of Judge Curtis' opinion that he understood the Chief Justice's opinion in the latter sense.
Which would, in fact, extend slavery everywhere in the country despite its abolition in many of the states. Just as the Roberts Court has effectively abolished state statutes abolishing discrimination against LGBTQ residents of those states when it comes to public accommodations and commercial services on the basis of "free speech" in the First Amendment. As I am confident the Roberts Court majority will get round to permitting marriage inequality in some states, nullifying marriages legally engaged in in states which allow same-sex marriages, thus nullifying, at least in part the Article IV Full Faith and Credit clause of the Constitution. There would be literally nothing to stop them from doing that just as they are allowing Texas to put a bounty on people who help women go out of state to exercise their rights of control over their own bodies. Since we know they are prepared to nullify even long standing Supreme Court law to do that, what is there that is too outrageous a reach for them?
But the conclusion arrived at by the Chief Justice that the Missouri Compromise Act was unconstitutional did not dispose of the case before the Court. There still remained the second question indicated by the Chief Justice, namely, the effect of the sojourn upon Scott in the State of Illinois. It was unquestioned that Illinois was free territory, and that Scott's sojourn there made him a free man. It should be noted in passing that the assumption that Illinois was free territory was based not only on the fact that the right of a state to abolish or prohibit slavery was conceded, but that Chief Justice Taney concedes that Illinois was free territory even before it became a state, by virtue of the Congressional legislation with reference to the territory northwest of the Ohio - the famous "Ordinance" passed originally by the Congress, of the Confederation and confirmed by Congress under the Constitution. And he answers the argument which the defenders of the power of Congress to pass the Missouri Compromise Act drew from the the fact that slavery was prohibited ever since 1787 in the Northwestern Territory without the propriety of that prohibition having ever been questioned, by making an elaborate argument drawing a distinction in this respect between the legislation of Congress with respect to the Territory of the Northwest and the same legislation with respect to the Louisiana Territory. The Chief Justice was thus confronted at the end of his elaborate argument trying to prove the Missouri Compromise Act unconstitutional with the problem of disposing of Scott's freedom acquired in Illinois. He disposed of this problem in a very summary fashion by adopting Judge Nelson's view that Scott's return to Missouri deprived him of the benefit of the freedom he had obtained through his sojourn in free territory.
In this outrage the full depravity and evil of the Taney decision can be seen in that it elevates artificial "property rights" over the right of freedom that even under the law in its arbitrariness and bad faith, they can't claim Dred Scott didn't obtain when he was brought to the free territory of Illinois. The "property right" to his body and life claimed by his enslaver, which they admit was legally abolished when he brought him to a free state, magically reappeared and overtook the right that Dred Scott had obtained from being brought to a free state. The legal fiction of ownership was, by the claims of a majority of the Court, held to be superior to the right of a free person to retain the freedom they admit he had. And that by the language of the "Bill of Rights" that was the law of the land by Supreme Court fiat.
I have, of course, been pointing out that the Roberts Court is, in fact, trying and succeeding in turning back the law and the Constitution to wipe out all of the progress of the Civil Rights struggles, for Black People, other People of Color, other minority groups and Women using the power that the Taney Court created for the Supreme Court AND THEY ARE USING IT AGAINST THE VERY SAME PEOPLE THAT TANEY AND HIS COLLEAGUES TARGETED ON BEHALF OF THE VERY SAME PEOPLE THEY DID THAT FOR, OLIGARACHS AND RACISTS.
Nothing is secure as long as the Court is allowed to do what it did to the Voting Rights Act, Roe v. Wade and the Missouri Compromise. I have no doubt that they will be doing their best to reinforce and reextend wage slavery - NEVER FORGET NEAL GORSUCH SAYING FROM A LOWER COURT THAT A WORKER DIDN'T HAVE A RIGHT TO KEEP HIMSELF FROM FREEZING TO DEATH THAT HIS EMPLOYERS WERE OBLIGED TO RECOGNIZE.
This may well, literally, be the worst court since Taney and I have no doubt that they have the potential to be even worse than that Court, all explained in intricate and dishonest, well worded and completely mendacious language. And the court reporters will dutifully report it with the same foetid aroma of artificial sanctity that has lulled so many of the alleged thinking class of Americans into stupid acquiescence.
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