The Stench Around The Court Has Always Been There

 

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Part Three:

Part Four:

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. 

Friday Night Bonus Standards - Peggy Lee - Send In The Clowns

 

Direct link to video 

I don't usually click on versions of this song because it is one that has suffered so much through so many versions that it's hard to imagine it being anything but tossed off or, worse, belted as a damned torch song. 

Peggy Lee, singing it late in her career, the long period of health problems and prescription drugs telling in her face and her voice proved those hadn't done anything to diminish her artistic integrity or abilities.  When she sings, "isn't it queer, losing my timing this late in my career," it's heartbreaking even as her performance proves she hadn't lost hers.   I've previously held that Judi Dench, singing it in the context of the play A Little Night Music was the best performance of it I'd ever heard.  This one isn't in context of the play but in the context of the performer and her life, it is as perfect and, because it's real life, maybe more moving.   

Hate Mail - There is no truth in this, of course, but it satisfies the expectations of convention and also of cynicism

MUCH OF MY personal library is still packed away in my strange year of moving from and, probably soon, moving back to my little house - it's complicated - so I can't find the ink on paper for the passage concerning the Hollywood-show-biz misrepresentation of one of our countries most admirable white abolitionists,* Lewis Tappan in the movie Amistad.  I've found what I believe is a faithful reproduction of it online, authorized or not, I don't know.   It's as I remember reading it in substance.   In it is a perfect example of the prejudices habituated through entertainment, movies, plays, books, stand-up comedy that never tires of lying about religious people, their motives and, seriously, is dangerous as well as unjust.  

The fact is that abolitionism in almost all of its effective expression was intimately tied up with religious faith,  almost all of that faith Christianity.  That's especially true in its earliest period any abolitionism on the part of white People was an expression of religious conviction, famously from Quakers such as John Woolman and earlier among some, though certainly not all Massachusetts Calvinists.  Of course People held in slavery had their own experience of injustice as their primary motivation, though often, too they expressed it in terms of the Bible. The fact is that religion was the foremost and most potent weapon against slavery.  So much so that when John Quincey Adams argued the Amistad case before the Supreme Court he admitted that he could not base the case for justice for those wrongly abducted into slavery who had fought for their freedom on the slave ship on the Constitution or statutes but resorted to pointing to the Declaration of Independence hanging in the Supreme Court chamber with its declaration that rights are the equally bestowed gift of "nature" and "Nature's God."   There is no durable claim of rights anywhere to be found in "naturalism" or secularism or in secular law unless it is explicitly founded on that religious foundation. 

Here is the segment of the essay:

 I am always writing about that broad area that lies between expert opinion and public assumption. It is broad in the sense that it reflects the state of knowledge in far the greater number of people, not at all in the sense that the difference between expert views and public assumptions is typically great.

  The film Amistad is based on an important event in American history and is intended as a serious treatment of it. In 1840 a Spanish ship carrying African captives in the Caribbean was seized by the captives. The navigators, who were spared so that they could take them back to Africa, misled them and sailed north. They were found off the coast of the United States, arrested, and brought to New Haven, which was an important abolitionist center. This came to the attention of Lewis Tappan, who organized a very distinguished legal defense to clear them of charges, including murder, and to free them. The case went all the way to the Supreme Court. When they won, Tappan arranged for them to return home to Africa.

  In the film nineteenth-century New Haven looks like a set for the Salem witch trials. There are randomly assorted details to suggest a pervasive religiosity—a troop of nuns pass through the street, a close-up shows crosses on chains dangling from Bibles. Simpering, black-clad women poke crosses at the Africans through the slats in a picket fence. Puritans, as these people are clearly meant to be and would have been, more or less, did not dress in black and did not use crosses, which they regarded as icons. The Africans, watching black-clad people kneeling in the street outside their jail window in some clumsy and unspecific show of sympathy and evangelism, remark, with subtitles, that they look unhappy. This moment hardly seems necessary, since the cliché is so commonplace that even George H. W. Bush was aware of it. When they fell to thinking about it, a great many New Englanders were indeed unhappy about slavery, and about the Fugitive Slave Law, which was germane to this case and which was meant to implicate Northerners in the enforcement of slavery. This is the kind of unhappiness that should be associated with intelligent humanity, not with gloomy fanaticism. But they were Puritans, and therefore, as cliché would have it, cankered souls who simply hated life. I will not pause over the fact that this region at this time was producing a body of literature of great beauty and depth, which is generally considered a sign of cultural health.

  So, given the conventions that shape the film, what is to be done with the figure of Lewis Tappan, a great early emancipationist who devoted himself and his fortune to the cause? Among many other things he was one of the founders of Oberlin College, an institution of singular importance in advancing abolition and in asserting the equality of all races and both genders. In New York City, Tappan’s business was burned, his house was ransacked with him in it. He went right on, rather jovially and very constructively, supporting abolition.

  In the film he remarks to his black colleague that it would be better for the cause if the Africans were to die. There it is, the stereotypical fanaticism, the inevitable underlying pathology that contaminates what would otherwise be generosity and idealism. There is no truth in this, of course, but it satisfies the expectations of convention and also of cynicism. Movies love the underdog, here a rumpled young lawyer invented to fill this role. But a movie with any claim to historical significance would find the underdog in Tappan and the figures he recruited to the freeing of the Africans. That they were men of standing in their society did not make them powerful against a hostile president or the slave interests in Congress, as the length of this struggle and the larger struggle for emancipation makes clear. The controversy surrounding the Amistad and the determination of the case are very important, so why not give a true account of them? Reality is interesting.

  Well, for one thing, to do so would disrupt some deeply entrenched notions. Lewis Tappan, that Puritan, used moral and religious language to make his case against slavery. This may mean he was, as they say, holier than thou. I freely concede that he was holier than me, if we are to be judged by our works. Better, or easier, to reinforce those stereotypes, available as they are, undisputed as they are. Popular culture has its own systems of self-perpetuation.

One of the reasons I despise costume drama theatrical and, especially, movie use of history and historical figures is because they will inevitably lie about real People and real events and, as Robinson demonstrates, they will do so to serve everything from their own ideological, personal prejudices or, as I think so often happens, from the cynical expectation that inventing such lies will have audience appeal.   I read the "script" online having to figure out who said what for much of it, I didn't watch the movie, I hate movies in general and "historical" ones absolutely.   I don't have to admire the figure being libeled by the show, either.   I am no great admirer of Pius XII but the slander waged by those who mounted the play The Deputy, especially the Brit theater establishment and those on Broadway have permanently inserted lies about him into the popular conception of history.  And that has become, as well, a fixture in our alleged journalism and among the allegedly educated but merely college credentialed so called intelligentsia.  

But lies are lies and it is a responsibility to call them out when they are told and retold.   

* The bizarre common received wisdom, as encouraged by everything from popular history to "historical novels" to plays and movies, in descending order, is that the abolitionist movement was, almost exclusively, a phenomenon of white people when those who had the largest stake in it are bit and supporting figures.  To show you how dangerously distorting  entertainment is.   From what I've read of Lewis Tappan and his brother Arthur,  it's doubtful they would have held such a distorted view of the fight against slavery.

While I Am Out

I'll BE OUT for a while today.  I have done some serious editing to yesterday's post in the Dred Scott series - news about the Putin atrocities in Ukraine has required all of our attention.   

Listening to the podcast about slavery in Maine, its real life existence almost certainly outlasting its merely legal and so alleged abolition her, I recommend it on its own.   What happened here certainly happened in most if not all of the Northern States during the very years during which the issues of the Dred Scott decision, the Missouri Compromise, the squatters sovereignty debacle that led to Bleeding Kansas and the disastrous power grab by the slave power on the Supreme Court, the results of which gave us government by judiciary so Patrica Wall's talk and Q and A are relevant to the discussion.  

Lives of Consequence With Patricia Wall

 

Patricia Q. Wall; Recorded February 10, 2018 - Through her new book, Lives of Consequence: Blacks in Early Kittery & Berwick in the Massachusetts Province of Maine , author Patricia Q. Wall reveals new startling information about the era of slavery in Maine's earliest settled region. Based on six years of intense research, Mrs. Wall'€™s wealth of findings not only banish the old myth of slavery's scarcity in Maine, they clearly point to significant impact of the labor, skills, and knowledge of hundreds of enslaved Blacks (i.e. Africans, Native Americans and people of mixed African, white and/or Native American heritage) on slave-owning families and on early economic development of communities and towns. Patricia Wall's book is available in the MHS Museum Store or online here .

I will also recommend this lecture about the Supreme Court and Slavery.   While Paul Finkelman is more polite than I am and so he often uses the word "slavery" where I would use the words "white supremacist,"  "racist," and talk about the brutality that is intrinsic to America's history and was embedded in the Constitution and the law by such racists as John Marshall, Roger Taney and the power that they extra-Constitutionally gave themselves in order to promote their own interests and their preferences for white supremacy.   Especially interesting is what he points out about the ability of slave power to corrupt the associate justice Joseph Story who started out opposed to slavery and ended up as bad as Taney.   Slave power with the frequently dishonest kind of legal logic that lies as it reasons and is never honest about it expressing the personal preference of the "justices" is entirely in line with what the Republican-fascist majority on the Roberts Court are doing to reimpose a form of 3/5ths that, this time, covers exactly those white voters who Republicans think might vote for Democrats, who, as I said, can be thought to stand in for the white abolitionists who I'm sure if Taney had dared, he would have kept from voting to protect slavery and the slave holders interests. 

On The Same Topic As Posted Yesterday

YOU MIGHT WANT to read this February 26th Daily Beast article on the play-lefty knee-jerk anti-American pro-Putinism of the play lefty Gravel Institute, which I hadn't seen before it was meantioned by Michael Sean Winters in an article he posted today.  It goes a lot farther about one group and its associated big-name lefties - all of whom are diminished by their Putin water carrying now.  I'm about totally over Cornel West at this point.  Also how the Gravel Institute is covering its ass by deleting content it had posted much of it in line with what I pointed out from "Democracy" Now!.   It points out that behind the big names facade is a literally under-grad operation run by Columbia students.   I'd flunk all of them if they're studying anything to do with history or politics or, especially "journalism."   They're wet behind the ears, proving once again that any "left" that is founded on college kids is bound to be stupid.

That friggin' exclamation point as well as the word "democracy" in its title fucking annoys the hell out of me.   In doing a little reading on the late Mike Gravel who died late last year, I saw that he had supported the nomination of both Bernie Sanders and, I'd guess, when he suspended his campaign and supported Joe Biden, the Putin shill Tulsi Gabbard.  To show you why none of this should have been surprising. 

Dump the play-left, those who aren't knowing stooges of gangster dictators are unwitting ones.  

The The Supreme Court's Self-Granted Powers To Overturn The Voting Rights Act Originated In The Slave-Power Of The Dred Scott Decision

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Part Two:

Part Three:

 

YOU MAY HAVE WONDERED  at the sequence of  this series within a series about the infamous Dred Scott decision, the proof that the power the Rehnquist and Roberts Courts are using to dismantle the progress made by the Civil Rights Movement that culminated in the Voting Rights and Civil Rights Acts, the progress of Women in Roe vs. Wade and the Griswold decisions did not come from the Marbury decision but from the Dred Scott decision.  Marbury vs Madison didn't overturn federal laws never mind one of the most important and consequential ones such as the Missouri Compromise of 1820, and so, despite arguments to the contrary, the Marbury decision was not the same kind of thing as what the Republican-fascists on the Court were put there to do and which they are doing, things like destroying the Voting Rights Act.  As well as the overturning of huge amounts of other law and decisions that some of them lied about considering "settled law" as they all lied during their confirmation hearings.  

I thought it was necessary to establish the actual state of affairs surrounding the Missouri Compromise which was, actually, the first important use and massive extension of the powers that lying American History and high school Civics textbooks claim started in Marbury vs. Madison, which, as Louis Boudin pointed out was not an especially consequential or important decision, on whether The Supreme Court could issue a writ in the matter of an appointment to a minor office, not the sweeping and dangerous slave holder-slavery favoring power which the majority in the Dred Scott decision claimed for themselves as a means of ending the abolitionist movement and protecting slavery which, if they had their way, would continue as it had, expanding it over the entire country.   Something that, under different nouns, verbs and adjectives, the present day Supreme Court seems to want to go back to.  An honest view of American history would show how slavery continued in the way such de facto slavery under the 3/5ths abomination of keeping Black People and other People of Color and which the Roberts Court wants to go back to, such white people as who may stand in contemporary terms for the pre-Civil War abolitionists included, this time.   

The Missouri Compromise was very important though it was, itself, an abominable compromise with slave power, it hardly solved the problem of slave power domination of our politics and, as is obvious from the behavior and rulings of the Supreme Court, the judiciary.  Slavery had the upper hand even under it, even as it was, itself superseded by the abominations devised in the 1850s by such as Stephen Douglas.  

But to overturn it was necessary and and to declare it had never legitimately had the force of law because of its alleged unconstituionality, that was logically and legally necessary to accomplish the cementing of slave power into the unmovable Constitutional structure, just as the Roberts Court is trying to use the power claimed by the Taney court for very similar ends.  

As long as that power is unchallenged and unabolished the servants of oligarchy, white supremacy, male supremacy, polluters, enemies of equality in general will use it and its extensions to thwart the duly enacted laws such as protect the environment, such as mandate equality for People of Color and other ethnic and religious minorities and, in fact, the majority who are Women.  Stopping lying about where that power came from, not in the innocuous, unimportant Marbury decision but in the worst and most infamous decision that court has ever issued AND WHICH, SINCE THE COURT NEVER OVERTURNED IT, IT IS STILL THERE WITH THE POWERS THE TANEY COURT GRANTED ITSELF.  

But Taney was for many years in ill-repute among his countrymen, and the Dred Scott Case in very bad odor indeed. In February, 1865, Charles Sumner said in the United States Senate: “The name of Taney is to be hooted down the pages of history. . . If you were asked to mention the incident of our history previous to the Rebellion which was in all respects most worthy of condemnation, most calculated to cause the blush of shame, and most deadly in its consequences I do not doubt you would say the Dred Scott decision and especially the wicked opinion of the Chief Justice.” 

By 1889 the fury of the attacks against the great Chief Justice personally had somewhat abated. But the Dred Scott Case was still in bad odor, and Taney under a cloud on account of it. It was therefore only human that those sitting in Taney's seat of power should have shrunk from calling attention to the foundation upon which that power rested.

In order that the reader may get the full import of the Dred Scott Case in its relation to the development of the Judicial Power, it is necessary to go at some length into the history of that case as well as analyze carefully the decision itself and the accompanying opinions-of the judges.

Slavery was one of the great irritants in the Constitutional Convention of 1787, and the subject of one of its great compromises. The problem did not, however, then loom very large. In fact, it was then the general belief, undoubtedly shared by the Framers, that the question would be solved naturally by the economic development of the country, and that slavery had been launched on the road to extinction by the compromise which became part of the Constitution. But the invention of the cotton gin shortly after the adoption of the Constitution turned the de¬
velopment of the southern states in an entirely different direction from that which had been expected at the time of the adoption of the Constitution. As a result of this the country became, in the eighteen-fifties, “a house divided against itself,” and most farsighted people to the conclusion that the Union could not endure half slave and half free."

The development of Slavery from a minor issue to the most momentous problem in the political and economic life in the country was a gradual one. About midway in this development came the famous Missouri Compromise. The development of the country between the adoption of the Constitution and the closing of the War of 1812 tended steadily to increase the importance of the Slavery question, so that when attention was again turned towards domestic problems after the close of that War, the question of the future of Slavery in the United States, and the economic and political development of the country in the presence of Slavery became acute. The question was focused on the admission of the Territory of Missouri as a state of the Union. At that tune the balance was even between the free and the slaveholding states; and the free labor people of the northern states were fearful lest this balance be permanently upset by the admission of Missouri as a slave state. After an intense struggle lasting
over several years, the problem was finally settled—permanently, as it was then believed by the adoption of the famous Compromise devised by that great compromiser, Henry Clay. The pricipal features of this compromise were:

1. That Missouri and Maine be admitted together, one as a slave state and the other as a free state, so as to maintain the balance; and

2. That the great territory embraced in the Louisiana Purchase be divided by running an east and west line along the parallel of 36 degrees 30 minutes north latitude, the territory below which line was to be slave territory, while the territory north of it was to be free. It was expected that in the future, as states were carved out from the territory thus divided, they would be admitted in pairs, one from the northern part of the territory and one from the southern part, thus perpetuating the balance of power between slave and free states.

It is significant of the time that people believed that such a balance could be maintained permanently. But the development of the country after the adoption of the Missouri Compromise in 1820 increased the maladjustment between free labor and slave labor, and widened the gap between the two economic systems; until, as we have already stated, the point was reached in the 1850 ’s when people came to the conclusion that the Union could not endure half slave and half free.

This conviction, like the slave power itself, grew but slowly. It was only natural that the statesmen of the older generation should still cling to the belief that the balance could be permanently maintained. One of the latest manifestations of this belief was the famous “Compromise of 1850” — also fashioned by Henry Clay. But this compromise was only the beginning of the end. In 1854 the slave power was strong enough to upset the balance by the formal repeal of the Missouri Compromise and the substitution of the so-called Squatter-Sovereignty Act, of which Stephen A. Douglas was the author. But the repeal of the Missouri Compromise and the substitution therefor of the principle of Squatter-Sovereignty did not have the effect expected from it by its sponsors. It threw the country into political turmoil, and the new territories into anarchy. The people of the territories attempted to solve the problem by force of arms, and the story is still known in history as the story of “Bleeding Kansas.” It was at this juncture that Chief Justice Taney and his associates on the United States Supreme Court conceived the idea of “settling the peace and harmony of the country by judicial decision.” With what results we all know. 

As I've been pointing out, endlessly since 2006, the Warren Court's good intentions in many of their rulings had what were ultimately bad consequences.  Permitting the media to lie about politicians which had an effect of permitting the millionaries and billioniares who own the media to constantly libel and slander Democrats, civil rights leaders, environmentalists, etc. in ways that allowed the opponents of equality, democracy, environmental protection to win offices and appoint the Supreme Courts which have increasingly  dismantled all of the progress made towards those issues of justice, while jettisoning unprofitable things like their quaint opposition to smut.  Which would get in their way of  their use of "freedom of speech" and "freedom of the press" which meant oligarch dominated media which would have a similar effect as it had in "free Russia" and other recently, allegedly de-Marxified states.   Putin gained his power through corruption and lies and, especially, lies in the mass media just as Hitler and Mussolini and other dictators have.  As we saw in Trump, it can happen here just as well as anywhere else.  I wish it had been possible to let Earl Warren and his colleagues in on the future they were sowing. 

I think Taney and his fellow protectors of slavery must have been surprised when, as with Stephen A. Douglas's attempt to do the same thing, their pro-slavery acts led to the disaster of the emboldened slave power to break the country apart and to attack Federal installations initiating the most disastrous war in our history which, thankfully, led to the dismantling of the old slave power, at least under the guise of legality.  

Taney, himself, continued on long enough for him to try to usurp more power, in wartime from Lincoln who, charged with defending the Country and the Constitution suspended Habeas Corpus in Maryland where there was a real danger of Confederate sabotage and attacks on the Federal Government.   To Taney's attempts, Lincoln merely didn't comply with his orders.  As I recall there were one or two more instances in which Lincoln was unwilling to go along with Taney's and his colleagues power grabs during the most dangerous war for the Country in our history.   Noncompliance is at times possible when the Court oversteps its legitimate function, I think it will take a lot more to end the tyranny of government by judiciary now.   

The Supreme Court, safe in their alabaster chambers, untouched by the pain and death their decisions bring are aloof  and uncaring about the lives of the People they damage.  They have the same attitude about that as the majority in Dred Scott about People not like them.  Even those who are biologically identified as members of the groups they hurt, Clarence Thomas, Amy Coney Barrett.  That's not shocking considering that the white male Supreme Court "justices" have, throughout their history done things that killed and oppressed poor white males as they preferred empowering the rich and powerful over poor people, too.  

Government by judiciary is not unjust because it violates some artificial law about artificial privileges, it is unjust in the important way, that it oppresses and kills and enslaves and robs those who really aren't the ones that the "justices" care about.  And, as I pointed out, even when they think they're doing right by such people, their words can be turned around and used by the more typical members of that Court to enrich the rich and further empower the powerful. 

The America Haters On The Left Are As Deluded As FOX And The Other Putin Mouthpieces I Really Have To Wonder About Their Funding After This Week

HERE'S A PIECE that was on Democracy Now! on February 1st, thirty days ago.

Ukrainians Doubt a Russian Invasion Is Imminent as U.S. Peace Groups Urge Biden to Halt Escalation

The United States and Russia sparred on Monday over the crisis in Ukraine at the United Nations Security Council. Meanwhile, U.S. senators are preparing to unveil a bill that would target Russian President Vladimir Putin, Russian banks and other entities with sanctions. To discuss the Ukraine crisis, we’re joined by the co-founder of CodePink, Medea Benjamin, who says “we need the voice of the American people” to oppose U.S. escalation and also calls on U.S. progressives to vocalize their opposition to fueling a war in Europe. We also speak with Ukrainian sociologist Volodymyr Ishchenko, who says Ukrainian intelligence does not see a Russian invasion as likely or economically wise for Russia.

Of course, if you go to the website for DN! it's different, now, now that there's no denying that everything that was said on the show then was proved to be wrong.   But it's still America is always wrong and to blame for it all, as in this piece posted today:

Filipino Scholar Walden Bello on Why the Global South Is Suspicious of U.S. Motives in Ukraine War

We speak with acclaimed Filipino scholar and activist Walden Bello on the Global South’s response to the unfolding crisis in Ukraine. Bello says there’s hesitation from many world leaders to take an active role in the crisis, arguing that there is a lack of explicit national interests and a general suspicion the U.S. provoked the invasion to take advantage of the subsequent backlash against Russia. He says people in the Global South realize that ever since the Soviet Union fell apart, ”NATO and the U.S. tried to take advantage of it in an aggressive eastward expansion of NATO right onto the countries that would border the Soviet Union.” Bello also expresses fear the U.S. may try to stoke tensions with China over Taiwan, saying, “China’s not interested at this point in any sort of military conflict that would jeopardize what is its big reputation right now of peaceful economic diplomacy.”

The knee jerk, cultural America Always Wrong habit of the secular left, from Amy Goodman and her crew, so many of her regulars, from Katrina Vanden Heuvel and so many who get published in The Nation, from the libertarian crap from the likes of Glenn Greenwald and Laura Poitras , Julian Assange, that is taken by such a left as being of the left on the basis of their Democrat bashing and pro-Putinism even as it's indistinguishable from FOX in its content.  It all shows that there is a real need to break with such a left, what I generally think of as the "secular left."  I have a strong feeling that Putin has actually had the kind or role in covert funding that the overtly fascist right attributed to George Soros.  It's a feeling because I haven't seen any direct evidence but this isn't any kind of a mistake or a coincidence.

There is much to blame the United States for but Putin's invasion of Ukraine, the countries that, as well, suffered under Soviet domination for two generations after WWII wanting to prevent Putin from invading them in his wet dream of being Ivan The Terrible for Today cannot be blamed on the United States at all.  Considering the successful attack on the United States, using our own idiotically self-inflicted weaknesses - weaknesses championed by the idiotic play left as it was exploited by the fascists, they join with our indigenous fascist class as assetts for Putin. 

Thomas Merton On Ash Wednesday

It is necessary that at the beginning of this fast, the Lord should show Himself to us in His mercy. The purpose of Lent is not only expiation, to satisfy the divine justice, but above all a preparation to rejoice in His love. And this preparation consists in receiving the gift of His mercy — a gift which we receive in so far as we open our hearts to it, casting out what cannot remain in the same room with mercy.

Now one of the things we must cast out first of all is fear. Fear narrows the little entrance of our heart. It shrinks up our capacity to love. It freezes up our power to give ourselves. If we were terrified of God as an inexorable judge, we would not confidently await His mercy, or approach Him trustfully in prayer. Our peace, our joy in Lent are a guarantee of grace.

In laying upon us the light cross of ashes, the Church desires to take off our shoulders all other heavy burdens — the crushing load of worry and obsessive guilt, the dead weight of our own self-love. We should not take upon ourselves a 'burden' of penance and stagger into Lent as if we were Atlas, carrying the whole world on his shoulders.

Perhaps there is a small likelihood of our doing so. But in any case, penance is conceived by the Church less as a burden than as a liberation. It is only a burden to those who take it up unwillingly. Love makes it light and happy. And that is another reason why Ash Wednesday is filled with the lightness of love.

Thomas Merton

I don't know what the lectionary for Ash Wednesday was when Merton wrote this, I would note that for today it starts with a far rougher statement of the same from the prophet Joel. 

While I can't say that I'd expect most of the U.S. Catholic Conference of Bishops, the so-called Pope Emeritus Benedict XVI, the neo-fascist "traditional Catholic" cardinals, bishops, priests and lay crack pots would agree with any of the above, nor would enormous parts of the record of words and deeds of the Catholic Church, I like what Merton said and I'm going with it.  

In the past I might have looked for a motet or chant specific to the day but I'm 100% refusing to do anything that is friendly to the fascist, billionaire-millionaire Mother Angelica pushed, astro-turf "traditional Catholic" cult so this is going to be a Latin-free zone for now, at least.   I really, really wish I could talk some of my composer friends into composing new music either on vernacular texts or in the "Latin of democracy," Esperanto.  Here's a bit of the Joel text that could make a good a little motet, who knows it might inspire someone.

Returnu vin al Mi per via tuta koro, kun fastado, plorado, kaj ĝemegado; disŝiru vian koron, ne viajn vestojn, kaj returnu vin al la Eternulo, via Dio.  

Joel 2: 12-13 

Update:  I suppose that condemnation of Catholic-fascism might seem out of place but I can explain that while I was finishing this post I'd just read this review of Catholic-fascists supporting the Putin line and even his preparations and attack on democratic Ukraine.

Ingraham, Ahmari et al. were only too willing to swallow the Kremlin's talking points, and repeat them, at least until it became obvious that the entire world expressed its revulsion at Putin's assault on Ukraine. Phlegmatic European diplomats, who know a thousand ways to say "patience" but have difficulty with moral clarity, sounded positively prophetic in their jeremiads against the war and the authoritarian dictator who started it. The Swiss — the Swiss! — froze Russian assets. The Swiss never freeze assets.

I watched Ingraham's entire show Monday night. She had changed her tune, but she did not correct anything she had said previously. Mostly she tried to refocus the conversation on the threat to American security posed by China. I suppose that is a kind of progress. Still, let no one forget the slavish apologies for Putin's fascist regime these Catholic scoundrels were only too ready to make their own. Let that moral stain be indelible.

The entire Catholic-fascist movement should start practicing what Joel and Jesus said in today's Catholic readings, their sins, their complicity and support of the murders of babies and children and other entirely innocent people living in Ukraine on behalf of a Republican-fascist, British Tory connected fascist dictator, are the kind that should lead to a life of penance not making millions on cabloid TV.

The Roberts Court Reesablishing And Extending The 3/5th Provision Including Women As Well As People of Color

THE ATTACKS ON THE VOTING RIGHTS ACT by the Roberts Court working with state governments under Republican-fascist control are reinstating a 3/5th provision in the Constitution which was, first and foremost about those states benefiting while denying the full person hood of Black People.   The Roberts Court, the six Republican-fascists on that court, are dedicated to making as many Black People, other People of Color, others who may vote for Democrats if they vote into 3/5ths people, the states getting to count people they prevent from voting and being full persons under the Constitution while benefiting from counting them in the census, gaining members of the House and votes in the Electoral College for the White Republican-fascist population to press their interests and desires while denying people they manage to stop voting from having representation.  That's what that long description from Barbara Jordan documented,  her experience of being made a 3/5ths human for almost a century after the Emancipation Proclamation and the 13th and 14th Amendments became, allegedly, the law of the land.

The system of Jim Crow which Republicans and the Roberts Court are well in the process of reviving was a real life reality in which de facto slavery and the putrid  3/5th provision actually were fully in place and active.   The Warren Court in the gerrymandering cases wouldn't have ever been necessary if other methods of doing the same thing through drawing Congressional and state legislative districts weren't an actual, real life reality of doing what the slave-holders at the Constitutional Convention and the Northern financial interests who dickered with them created for their mutual gain.   

The past is, indeed, not even over.   It's being recreated in Supreme Court lying-legal blather by those robed thugs who are the power most remote from any kind of democracy in our government.  As Louis Boudin conclusively proves, it was the Dred Scott Court created power that has allowed them to recreate as much of antebellum life in the United States as they can, so far, manage.  That, in this case it is the perhaps less racist financial power that tried to harness America's indigenous form of fascism, white supremacy to gain the power to enhance their wealth, really what the Northern "founders" who to almost a person where primarily interested in their wealth did with the slave power of Virginia, and, especially South Carolina and Georgia who were constantly blackmailing them over the issue of slavery.   

And, it should never be forgotten that as things like the New Jersey Plan, the Virginia plan etc. which ended up with us having the putrid anti-democratic Senate, all of the Northern States were slave States, except Pennsylvania which abolished it by statute and Massachusetts which had done so by legal ruling.* 

Women, of course, were also subject to something like the 3/5th rule which was so habitual and so accustomed that it didn't make it into the Constitution or the discussion.  As we are seeing the same people, the same Court, the same line of legal jabber which is considered thinking is coming down hard on the gains that women made to do things so basic is controlling their own bodies.   I think we have lost a lot by not including things like that in the discussion of the defects of the Constitution which is held to be sacrosanct and a thing of worship instead of what it is, a constant source of problems and a tool of those intent on preventing equality and democracy.  

What they are doing in their ecclesiastical drag and their obscure and opaque legal blather is not unlike what Putin wants to do in Ukraine, abolish rights hard won and wrongly considered safe.  That is what Putin did in Russia far faster and, considering we had his puppet, Trump, in office - facilitated as the Roberts Court opened us up for direct foreign gangster political influence in the Citizens United Case - none of us should imagine it can't happen here because it is happening here. 

*  In her fine and, so far unique study of slavery in Maine,  Lives of Consequences, about the history of slavery in Maine, the historian Patricia Q. Wall said that she suspected that well after slavery was legally abolished in Maine (which was then a part of Massachusetts) that in many of the remote parts of the state where people had been kept in slavery, things just continued as they had.  The law is largely a matter of what people can get away with under it and, though there is scant documentary evidence about the people who had been slaves here, I think she's probably right. 

The history of the end of legal slavery in New England and the other Northern States is not exactly clear cut.  Massachusetts and so Maine which was part of it, may have recorded no slaves in the 1790 Census but there were people kept in slavery, sometimes formally or informally held as indentured servants, others were still doing pretty much what they had been doing but getting wages.   Why Massachusetts and, I would expect, other Northern States didn't get around to legally abolishing slavery until the 13th Amendment was adopted would make an interesting study in itself. 

When Maine gained its independence from Massachusetts in 1820, its independence held up by the slave power until they could protect slavery under the Missouri Compromise, it did so as a "free state."   I can't resist pointing out that as that happened slavery was still very much legal in New York State under the kind of "abolition" that was favored by  the  so dishonestly acclaimed Alexander Hamilton.  Despite Lin Manuel Miranda's status quo favoring musical sensation, Hamilton was a staunch and steady advocate of, legalized slavery which didn't end for almost a decade after 1820 and, as pointed out in the fine lecture by Ms. Wall linked to above, that didn't mean people were not held in bondage, for decades after that, until the time of the Civil War, former slaves were probably still being held in indentured servitude or other forms of bondage all over the "free states."   As I recall, Ms. Wall notes one Woman who had been held in slavery lived till the 1860s, still a "servant.'  Though in that case she is the only former slave for whom she could find an actual grave stone with her full name on it.  Other's who had held people in slavery were noted in later census as having "other free people" in their households, certainly among those people they had previously been documented as having held in slavery.

Taney Lives On As Members Of The Roberts Court Revive the Non Personhood Of People of Color, Women etc. Under The Constitution

 

TANEY may have been in the minority on the Court in the Warren years, when the line of cases starting with Baker vs Carr were decided against racial gerrymandering.  But he is a member of the current majority, the 6 Republican-fascist votes ripping up the progress made, paid for in the blood and lives of those who struggled and died for equality.  And not only in the line of cases from Baker vs Carr (which Earl Warren counted as the most important cases of his time as Chief Justice) but the Voting Rights Act passed when the Congress and President Johnson did what the Roberts Court are saying should be properly done as they get ready to make women's bodies the property of the state, when they codified a ban on gerrymandering in the Voting Rights Act.   The almost sixty-year old, upheld, law that they crushed on February 7th in Merrill vs. Milligan.  An action, by his own court, which the initiator of that crushing, John Roberts, found to be something he didn't want his name attached to.  Perhaps he begins to understand that the new Republican-fascist majority on the Court will likely lead to his name going down with Taney's with all of the infamy and dishonor he deserves.  

But, as Louis Boudin noted, the powers that Roger Taney created, power to do that in the Dred Scott decision lives on.  In the overwhelming majority of its applications to do evil and enforce inequality and injustice, in a few rare cases,  really only much during the Warren years, sometimes for the better, even then sometimes with results the Warren Court majority probably wouldn't have liked if they had the foresight to see what would be done with their words and decisions. 

I'll start here with the case that Roberts voted with the majority to begin the dismantling of that codification in the Voting Rights Act, Rucho v. Common Cause.  I found this article which quotes one of the few lawyers who was involved in arguing Baker vs. Carr:

Anyone still wondering what President Trump has accomplished need only look to the Supreme Court’s announcement last Thursday saying it is helpless to fix cases of partisan gerrymandering now.

With the strokes of their five pens, Trump’s new conservative majority on the high court swept away 58 years of judicial history flowing from the Baker v. Carr decision of 1962. That case established the “one person, one vote” standard and, importantly, opened the door to proper federal court review of legislative redistricting.

Previously the courts had regarded partisan gerrymandering as a “political” matter outside the purview of the judiciary. On that basis, judges sidestepped taking up gerrymandering cases, in which some legislatures re-drew districts to protect themselves in future elections. (Baker v. Carr was soon applied to congressional districts also.)

Last week, the current court said pretty much the opposite: That partisan gerrymandering cases – where a majority political party has disadvantaged the other in drawing new district lines – are now off-limits going forward.

Constitutional scholars will parse all this in the days ahead, but this morning it feels very much like the current Supreme Court has turned back the nation’s clock by about six decades. . .

. . .  On Friday, I caught up with Nashville attorney Harris Gilbert, one of the few surviving members of the original legal team in Baker v. Carr. Now 87, he helped me understand what has been lost in light of Thursday’s ruling.

“It’s wide open now,” Gilbert told me. “The ‘one person, one vote’ standard is dead for a while. It may come back when the Democrats have a majority on the court.”

Not if people can't vote for Democrats due to the Supreme Court enabled gerrymandering and voter suppression which the Roberts Court is also enabling. 

What might be believed to be won through Supreme Court Power would seem to be lost a lot more easily than it was won in the first place.  I will refrain from going at length into what the Warren Court did in the Sullivan Decision, effectively overturning laws on libel and slander, and its place in lying us into Nixon, Reagan, two Bushes and Trump and a Republican-fascist majority in the Senate under Mitch McConnell who participated in the nullification of the presidency of the first Black President and his appointment to the Court.   A nation that is propagandized through lies will not be one which reliably elects those who favor equality and democracy and the Supreme Court has given the mass media and billionaires a right to lie us into fascism.

The first thing that I thought of when I read about that decision penned by the putrid Brett Kavanugh - what motivated me to go through Boudin's book -  was the testimony that the late Barbara Jordan gave in opposition to the nomination of Robert Bork to the Supreme Court.  And reading through it I decided to let her talk about her experience both under the, now, Roberts rules permitting partisan and racial gerrymandering and the all too brief period when the 14th Amendment was read to produce one-person-one-vote.  Note that I have edited the transcript as I found it online for clarity but I have not changed or deleted any words.

Thank you very much, Mr. Chairman.I am delighted that you gave me the chance to come and give my thoughts on your task. I am opposed to the confirmation of Robert Bork to the Supreme Court of the United States. My opposition is not a knee-jerk reaction of followership to the people or organizations whose views I respect. 

My opposition is a result of thinking about this matter with some care, of reading the White House position paper in support of Robert Bork, of reading the Judiciary Committee,your committee's point by point response to that position paper, discussing the matter with friends and people I respect,reading some of Judge Bork's writings. 

But more than any of that, my opposition to this nomination is really a result of living 51 years as a black American born in the South and determined to beheard by the majority community. That really is the primary basis for my opposition to this nomination.I concede Judge Bork's scholarship and intellect and its quality,and there is no need for us to debate that.

But more is required. When you experience the frustrations of being in a minority position and watching the foreclosure of your last appeal and then suddenly you are rescued by the Supreme Court of the United States.  Mr. Chairman, that is tantamount to being born again.  

I had that experience. The year was 1962. I had graduated from Boston University Law School in 1959. I went back to Houston, Texas, with my law degree in hand, and the Democrats around there said, in 1962, "Your work with us since you have been here makes us think you ought to run for the Texas House of Representatives."  I said, "But I have no money to run." They said, "We will loan you the money." And so on a borrowed $500, I filed for the election to the Texas House of Representatives. I ran. I lost. But I got 46,000 votes.  I was undaunted. I said I will try that again because I think my qualifications are what this community needs. 

So in 1964, I ran again for membership in the House of Representatives of the State of Texas. I lost. But I got 64,000 votes.  Why could I not win?  I will tell you why. The Texas legislature was so malapportioned that just a handful of people were electing a majority of the legislature. I was dispirited. I was trying to play by the rules, and the rules were not fair. 

But something happened. A decision was handed down: Baker v. Carr. That decision said this:The complainant's allegations of a denial of equal protection present a justiciable constitutional cause of action. The right asserted is within the judicial protection of the 14th amendment.   

Following Baker v. Carr, a series of cases were decided. The Texas legislature was required, mandated by the Supreme Court to reapportion itself. It reapportioned. So in 1966, I ran again. The third time. This time in one of those newly created State senatorial districts I won.  My political career got started. Do you know what Judge Bork says about those cases on reapportionment?  He has disagreed with the principle of one person, one vote, many times.  In his confirmation hearings in 1973, this is what he said: "I think one man, one vote, was too much of a strait-jacket." And then he continued: "I do not think there is a theoretical basis for it."  

My word. "I do not think there is a theoretical basis for it." Maybe not, gentlemen. Maybe there is no theoretical basis for one person, one vote, but I will tell you this much. There is a commonsense, natural, rational basis for all votes counting equally.  We once had a poll tax in Texas. That poll tax was used to keep people from voting. The Supreme Court said it was wrong, outlawed it. Outlawed it.  Robert Bork said the case was wrongfully decided. 

You have talked much about the right of privacy—Griswold to Roe, and others. Judge Bork has his theory—if you cannot find that right within the letter of the Constitution, explicitly, it is not there. It does not exist. I believe that the presence of that point of view on the Supreme Court of the United States places at risk individual rights. 

It is a risk we should not afford. We do not have to.  I like the idea that the Supreme Court of the United States is the last bulwark of protection for our freedoms. Would the membership of Judge Bork alter that altogether? I do not know whether that is the case, but that is not the question. I do not want to see the argument made, that there is no right to privacy on the Court. I do not want that argument made, and the only way to prevent its being made is to deny Judge Bork membership on the Court. I do not know whether you have read in your papers Mr. Justice Brandeis' dissenting opinion in the Olmstead case. If you did, you would read that Justice Brandeis made it very clear, that there is indeed a right of privacy, that it is really explicit, and that it is bottomed in the fourth and fifth amendments. Justice Brandeis makes that clear.The presence of a Judge Bork on the Supreme Court places that in jeopardy.

I was listening and watching these hearings, and I heard Judge Bork say he was not sure what the ninth amendment meant. That there was a lot of confusion surrounding the ninth amendment. I certainly do not pretend to be able to say what the ninth amendment means, but I can say that if you hold the view which is espoused by Robert Bork, there is a built-in inconsistency in the Constitution, and we know that every word of the Constitution is to be given some effect.

We understand that right. The Declaration of Independence preceded the Constitution, and the Declaration of Independence speaks of inalienable rights, endowed by our Creator with inalienable rights, among them life, liberty, pursuit of happiness.  So they are not the only ones — life, liberty, pursuit. There are others, and those others should be given effect.

Now you know what Judge Bork would say. "Listen. I approve of the results of the reapportionment cases.  I approve of the out come in many of those cases, but my problem with the whole matter is that I don't like the reasoning which was used."

Well, let's look at that for a moment. A Borkian view. "Don't like the reasoning that was used.  Approve of the outcome. What you really ought to do is let the democratically elected bodies make these decisions.  That is the proper way to proceed."  Gentlemen, when I hear that, my eyes glaze over. If that were the case, I would right now be running my 11th unsuccessful race for the Texas House of Representatives.

I cannot abide that.  

I know you have talked about the Saturday Night Massacre, and I know that there has been much discussion about whether what Judge Bork did in firing Archibald Cox was legal or illegal.  There is a court decision that says it was illegal, and then Senator Hatch would say, "Oh, but that decision has been set aside and it is a nullity."All I can say to you is that on the day, and at the time that Robert Bork fired Archibald Cox, there were rules and regulations in place, viable, alive, with the force and effect of law. They,  we,  reviolated, and, to me, that means the Solicitor General acted illegally.  To me, that is not very difficult to understand. The Office of Special Prosecutor and Independent Counsel is under attack right now.  For you to confirm Robert Bork to the Supreme Court I think sends the wrong message.  I believe that such a confirmation would indicate that it is all right with you for a person to sit on the Supreme Court who has utter disdain for the Office of Special Prosecutor.  I do not think that is the message you want to send. Constitutionalism is a part of the cultural glue of this country. The Supreme Court should be the ballast to keep the ship of state from making wide, unanticipated swings. A new Justice should help us stay the course, not abort the course.  

I want to conclude by reading a quote from a professor at the Yale Law School, at the time this was written, Charles Black. It is a note which he wrote in the Yale Law Journal, 1970. I think it is important. If a President should desire, and if chance should give him the opportunity to change entirely the Supreme Court of the United States, he may do that, and nothing would stop him except the United States Senate. The question is, for the Senate, whether the nominee holds such views, that when transposed into judicial decisions,they are bad for the country.  You have every right to look into the judicial philosophy of Robert Bork, because Mr. Black said at the conclusion of that article: "In a world that knows that a man, a nominee's fitness for office, in this kind of a world, his social philosophy shapes his judicial behavior." You must inquire into whether that philosophy affects his fitness for office.You have a satisfactory basis for voting against this nominee, and I urge you to do that.

There you have it, Robert Bork's remedy for evil through legislation instead of Supreme Court litigation, perhaps the biggest lie of all the numerous lies he told in his evasive, dishonest, oh-so-typical in that, Supreme Court nomination testimony.  And in the Taney created power of the Supreme Court to overturn that very legislation as the Roberts Court did in the two recent gerrymandering cases proves that that remedy is a lie that Republican-fascists on the Supreme Court will mow down by a five to four or a six to three vote no matter what they lied about decided cases of long standing which people depend on as a protection of not only their most basic rights as citizens, the right to vote and to have their vote matter, but even to the ownership of their very bodies as they are doing in their dismantling of Roe vs. Wade.  

The proof of Louis Boudin's contention that it was the Dred Scott decision, overturning the 1820 Missouri Compromise and abolishing the personhood of those decended from Africans under the Constitution is all over the Roberts Court's actions, including their progressive march backwards toward the Dred Scott holdings, they prove every day that it was never overturned by the Civil War or even by the "Civil War Amendments" as can be seen by the Supreme Court blessed de facto slavery and non-personhood of Jim Crow, anointed with Supreme Court approval in the Plessy vs Ferguson, complete with enforcement by terror and lynching.  With those sacred amendments in place and clear in their legislative intent. That is where this court is headed back to no matter what words they might lie into a fig leaf to cover their shame. 

I can't let the "originalism" of Bork pass without comment, or the "textualism" that some of the current Republican-fascists on the court replace that word with.   I'll point out the fact that the very power which they use to annul duly enacted legislation and to do so much else that reinforces inequality and injustice appears no where in the original text or the text as amended.   The whole thing is a fabric of lies.  I have often railed over the Supreme Court created "right" to lie, in the "free speech" "free press" cases starting with that atypically well intentioned, frequently quite clueless Warren Court.   It shouldn't have surprised me considering the very means with which they did that is based on a meta-lie, the one created in Dred Scott.   I think it's time people face that fact about the Court, its holdings and traditions and consider seriously the need to radically change that.

Monday Night Jazz Standard - Peggy Lee How Long Has This Been Going On

 

Direct link to video 

From the Ed Sullivan Show in 1965. 

Monday Night Something Completely Different The Association - Along Comes Mary

 

Direct link to video  

Every once in a while I have an ear worm and I'm shocked to find after a half a century of not thinking about a song I can remember every word and every lick.  One of the reasons I'm so hostile to pop music.  This one actually doesn't bother me because it was unusual for a mid-60s pop song, the lyrics were clever and the vocal harmonies weren't bad, for a change.   When Windy comes to mind, it's another story.

Someone once told me that the one with glasses, Russ Giguere I believe, kind of looked like I did at the time, only I was skinnier than that and my hair wasn't that long yet.  

Don't count on this happening often.  

 

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.