THIS NEXT SECTION of Louis Boudin's argument that the present day Supreme Court power was founded in its worst, most evil and appalling act, the Dred Scott Decision, is a bit complicated, dealing with somewhat complex facts and issues, but it's necessary to understand them to get a sense of the complete corruption and decadence that power originated in. I will take it over a couple or more days.
The facts before the court, upon which the [Dred Scott] decision was based, were as follows:
In 1834, a Dr. Emerson, a surgeon in the United States Army, took his slave Dred Scott from Missouri, which was a slave state, to Rock Island, in the free state of Illinois. There Dr. Emerson and his slave resided for about two years, and then went to reside at Fort Snelling, in Wisconsin Territory. This was free territory, being part of the original Louisiana Territory lying north of the line of 36 degrees 30 minutes north latitude, in which slavery was prohibited by the Missouri Compromise. Here Dr. Emerson and his slave resided for another two years. While this residing in "free" territory Dred Scott, with the consent of his master, Dr. Emerson, married to Harriet, a slave acquired by Dr. Emerson from another surgeon in the United States Army. Of this marriage two children were born, one on free territory the other in the state of Missouri after Dred Scott had returned with his master to the state.
In the year 1853 Dred Scott, being informed that under the law he had become a free man when taken by his master to reside in free territory, brought an action in the State courts of Missouri, to recover his own freedom as well as that of his wife and two children. In the court of first instance Dred Scott won his case, the court holding that, under the law of Missouri, Scott had achieved freedom when Dr. Emerson took him to reside in free territory. Dr. Emerson appealed to the State Supreme Court, and that court reversed the decision of the lower court, holding, by a divided bench, that when Scott returned to Missouri his status as a slave re-attached to him. In giving this decision, the majority of the Missouri Supreme Court upset what had previously been considered settled law of the state. Chief Justice Gamble wrote a vigorous dissenting opinion in which he maintained that the decision was wrong in principle and contrary to the well-settled law of the State; and he stated his belief that the court's action was due to the unfriendly attitude of the northern states towards the South on the subject of Slavery.
I will break in here to point out two things, that the Missouri Supreme Court "upset what was considered settled law in the state" in finding against Dred Scott, who must have been assured by his lawyer that that was the settled law of the state and their argument stood on that allegedly strong ground. In fact it was clearly an egregious enough violation of the "settled law" that the Chief Justice of the Missouri Supreme Court condemned the action of the majority in the case because it "upset" the law. We can also see that he was obviously not friendly to the cause of abolition considering he blames Northern abolition "attitudes" about slavery for providing his pro-slavery colleagues with the motive for their action their action instead of the self-interests and bigotry of the "justices." So much for the justice of "justice" under things like Constitutions and "settled law" when "justices" assert they have the power to overturn laws and even the stands of earlier courts. The very power that the Dred Scott decision grabbed for the Supreme Court in the most evil decision they had ever produced. That's the second thing to notice.
When the Missouri Supreme Court reversed the judgement obtained by Dred Scott in the lower court, it sent the case to that court for a new trial. In the meantime Dr. Emerson had transferred the title to Scott to his brother-in-law, a Mr. Sanford who was a citizen of New York. Thereupon Scott brought a new action in the Federal District Court of Missouri, setting forth the same claims that he had made before in the Missouri State Courts. In order to be able to sue in the Federal Court, Scott had to allege diversity of citizenship between himself and his master, and he did so by alleging himself to be a citizen of the State of Missouri and his master to be a citizen of the State of New York. Technically, the action was for an assault committed by the master upon Scott and the members of his family. But the complaint made it clear that the claim of assault was based upon the fact that his master held him and his family to servitude while they were in fact free people. To this complaint, the master put in what is known as a plea in abatement - a claim that the Court had no right to hear or decide the case upon the merits - asserting that the court had no jurisdiction. The legal consequences of this plea became one of the storm-centers in this case in the Supreme Court itself, and in the country at large after the decision was announced. The phraseology of this plea is therefore of very great importance and we shall give it verbatim. It was as follows:
"and the said John F. A Sanford, in his own proper person comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that such causes of action, and each and every of the, (if any such have accrued to the said Dred Scott) accrued to the said Dred Scott out of the jurisdiction of this court and exclusively within the jurisdiction of the courts of the State of Missouri; for that, to wit; the said plaintiff Dred Scott is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent, his ancestors were of pure Afircan blod, and were brought into this country and sold as negro slaves, and this the said Sanford is ready to verify; wherefore he prays judgment whether this court can or will make further cognizance of the action aforesaid."
Scott thereupon demurred to the sufficience of this plea; i.e., he maintained that, assuming the statement of fact contained in the plea to be true, it did not deprive the court of jurisdiction. This claim was based on the legal proposition that the mere fact that Dred Scott was a negro descended from negro slaves did not prevent him from being a citzen if he were a free man. In other words, the issue raised by the plea and the demurrer was, whether free negroes could be "citizens" within the meaning of the United States Constitution, and therefore capable of suing in the Federal courts. the lower Federal court ruled on this question in Scott's favor - holding that his descent from negro slaves did not in itself prevent him from being a citizen, and that he was entitled to litigate the question of his freedom in a suit in a Federal court, if his master were a citizen of a different state from himself.
With the plea of abatement overruled, the defendant in the suit had the choice of either appealing from this decision to the United States Supreme Court, or proceeding to try the case upon the merits. He chose the latter course, and in the case thereupon heard on an agreed statement of facts, reduced to writing and signed by the attorneys for both sides, stating the act substaintially as given above.
The court thereupon considered the case upon its merits, and decided against Scott, on the ground that his status depended on the law of Missouri, and that since the highest court of the State had decided that by his return to the State of Missouri he lost the benefit of freedom which he had acquired while residing in free territory, he must be held to be a slave by the Federal court sitting in the State of Missouri, irrespective of its own opinion on the effect of Scott's sojourn in free territory, since it was bound by the law as laid down by the Missouri Courts.
Under the theory upon the lower Federal court disposed of the case, the question of the Missouri Compromise was not in any way involved in the decision. Scott appealed to the United States Supreme Court. The Questions presented to the Supreme Court by the arguments of counsel were as follows:
That point, that the Missouri Compromise was not involved in the decision or the court cases that culminated in the last one the Supreme Court took up, no doubt so they could issue the outrageous Court power grab that the Dred Scott decision was is something you should keep in mind. They went quite out of their way to "overrule" a nearly 40 year old law that had permitted Missouri into the roll of the States (and my own state) on "Constitutional grounds". The expansiveness of their unprecedented acts in that decision clearly show they had more than one motive in what they did. I'd love to have asked them what that did to the admission of Missouri and Maine in 1820 if the basis for allowing them to be states was never legitimate law. In which case what did that do to the status of the state courts and laws made by the legislature of the state?
Clearly they wanted to protect the slaver system that had been, by then, contained to mostly Southern states, which a majority on the Court had always had a direct, personal, financial interest in. Their fortunes were tied in with it, their families were tied in with it, their cultural back ground largely based in slavery and racism. They wanted to assert that Black slavery was the law of the land and, no doubt, to permanently disable the efforts to abolish it. That would certainly have required strong arm tactics that would deprive the growing white abolition movement of, at first, resort to the courts and then, certainly would come further suppressive actions that would outlaw it. That stench that Sonia Sotomayor talked about around the Court has always been there, but like a flatulent dictator it's thought indelicate to mention it.
Given the power of the larger populations of the Northern States in the House of Representatives and the growing ability of them to elect an anti-slavery president, the slave-power on the Court needed to transform that into court-power, making the Court the last and final word on those topics. If you think that's outrageous, watch to see what the Roberts Court does as the abortion issue boils over at the same time that their fellow Republican-fascists try to reinstate full Jim Crow.
I think in the end we will not escape the need to cut the Court down to size by removing the powers the Court gave itself and expanded. As the Rehnquist and Roberts courts have proven, the old arguments against that such as "but, Brown vs Board of Education!" in which the Warren Court used a minor form of that power to, temporarily use that power for what they thought was good. A ruling that has had very mixed results in integrating public education. Schools under Brown have been progressively resegregating since the 1980s. Economic justice, income equality, housing desegregation, are all more important, though hardly as important as voting rights which the Court is eviscerating using the same power that the Warren Court, sparingly, relied on.
As you, no doubt, have noticed in my criticism of its "free speech-press" rulings and its stupidly counterproductive stuff like kicking manger scenes off of town property, which worked a lot better for Republican-fascists than for Democrats. Those lies that brought us to Trump, that previously got us Newt Gingrich, Denny Hasterert, etc. Trent Lott, Mitch McConnell, etc. and the Republican-fascist majority in the House and Senate were put in place by the Warren Court.
You can either have a media that is free to lie about public figures with impunity or you can have egalitarian democracy, you can't have both. And if you don't take the latter one, none of the rest of the good of equality, economic justice and legal justice is never going to come. Of course, Taney and his colleagues wanted nothing like equality, economic or legal justice, they certainly did their best to prevent democracy in their knee-capping of even legitimately made laws by elected officials.
I have no doubt that Taney and others on the court had that idea in their minds from the start of it. Lawyers deemed the greatest legal minds of their generation are certainly shrewd about what they care about, though they can be quite stupid about other things. There was some precedent in some of the concurrences of one of Taney's previous associate "justices" on the Court, a rather detestable and mediocre figure, even among the frequently detestable and mediocre members of that court, the largely forgotten Henry Baldwin. Certainly the claims of Baldwin that people of African ancestry in slavery had, in effect, no rights under the Constitution and that the Court had expansive powers in regard to Congressional regulation of interstate issues that went beyond those Taney, himself, seemed to have imagined it to have in 1841 figured into his and his colleagues thinking.
No comments:
Post a Comment