HOW BAD THE DRED SCOTT decision was is seldom if ever laid out in even university level history courses. If most high school and college completing people have more than a vague notion of it, I'd be surprised. That it continued slavery, they might know, some form of Taney's formula that Black People have no rights that white men needed to recognize. Which are true, of course, but the real depth of evil in the decision, the outrageous Court power grab that the special logic of the law made necessary for the "justices" to make things come out the way they wanted it to and the sheer dishonesty practiced in laying out "facts" to base that special logic on makes you understand why someone like Thomas H. Benton would need a couple of hundred pages to condemn it. It is truly an act of sheer judicial dishonesty and, I would contend, self-interested corruption on the part of most of the concurring "justices" that it lays bare some of the continuing and ongoing dangers of allowing the present day court to play by the same rules and from the same logic that Taney invented. Because, it should never be forgotten, that court having made itself the definition of what the law, what the Constitution was - which clearly includes making its dictates into "new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now" to use Benton's apt description of the power it claimed - can only be overturned, in so far as the imperial Court now holds, by its own action deleting that from the judicially amended Constitution. The court has never seen fit to do that, they'd probably claim that the Civil War amendments to the Constitution did it, though, as can be seen in how the Court has used the 14th Amendment, and others, that's hardly an adequate substitute. Though I am sure that any such court repeal would studiously avoid appealing the power that Taney gave himself and his fellow slavery backers in order to reach their preferred outcome of the case.
Before going on with Boudin's text the term "plea in abatement" is important to understanding his first point about Taney's decision. I'll give one of the typical online dictionary definitions of it.
The term “plea in abatement” refers to a plea which, without disputing the merits of plaintiff’s claim, objects to the place, mode, or time of asserting those claims. A plea in abatement permits the plaintiff to refile the suit in another place or form, or at another time.
I will break into the text to make a few points and I have also put some breaks in a long paragraph that Boudin didn't because I think the points made in it deserve individual consideration.
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Chief Justice Taney begins his opinion with a discussion of the first question mentioned by us above, namely, whether or not the question raised by the plea in abatement is open for the consideration of the Supreme Court after the case had been tried upon the merits in the court below; and he comes to the conclusion that that question is open for the consideration of the Supreme Court. Two of the Judges, Judge McLean in the minority and Judge Catron of the majority, dissented from this position of the Chief Justice; and it must also be assured that Judge Nelson disagreed with that position. On the other hand, Judge Curtis agreed with the Chief Justice on this particular point. We must therefore assume that a majority of the court concurred in deciding this question in a manner which laid the way open for a consideration of the question of citizenship raised by the plea in abatement.
Which begins to support my contention that the power that the Court gave itself was part of a pattern of doing things in order to come to their preferred conclusion, cementing slavery and the "rights" of slave holders into the Constitution and law of the United States more securely than it had been, protecting it from not only possible judicial action but, also, action of the elected branches representing a majority of the population of the country.
In order that we may be able to decide for ourselves whether or not these attacks upon the assumption of authority by the court were justified, we must examine Chief Justice Taney's opinion in order to determine the position of the court. For it is by the logic of that opinion that this question of assumption of authority must be tested - assuming of course that the general power of the court to declare a law of Congress unconstitutional is granted.
Always remember in this that Louis Boudin as a very well trained lawyer is practicing that special logic in which things are granted as a given for the purpose of the argument that I'm sure he would not take as granted. He is, after all, writing a large two-volume book to attack that very contention. I'll forego the temptation to criticize the judicial resort to make-believe and, in the case of so many of the "justices" outright lying to support their consequential decisions out of that habit of thought.
The Chief Justice then proceeds to discuss the question of citizenship under the United States Constitution most elaborately, and comes to the conclusion that under the Constitution free Negroes could not be citizens. This was the first great constitutional question in the decision as finally made and raised the first great point of contention both in the court and in the public prints of the time.
Judge Curtis goes into the subject very exhaustively, and seems to have proven beyond a doubt that the Chief Justice was wrong on this point. Judge Curtis' argument seems to be unanswerable in every one of its branches, general principles, history and adjudicated cases. The Chief Justice's argument is based principally upon historic considerations, and it is in this part of his opinion that he makes the celebrated statement - the subject of so many vehement attacks - that the Negro has no rights which the white man is bound to respect. It has been claimed by the Chief Justice's defenders that in making the statement the Chief Justice was not expressing his own opinion but merely reporting an historic fact. This is undoubtedly true.
I have to break in here to make several points. History is an interpretation of the past, especially if by "history" you mean the contentions and conclusions of historians and not what was actually documented in the primary record. And even the primary record is often a conclusion of someone like John Adams or Thomas Jefferson or, especially surrounding the "framing" of the Constitution, James Madison and even their conclusions are often unreliable and are bound to be biased. History is not physics - if by "physics" you mean only the part of it that is verified through rigorous experimentation and not the degraded present day meaning that includes unverifiable theorizing - "history" doesn't have that level of reliability.
As recently as yesterday I advocated learning lessons from history emphasizing us learning from it in what not to do, what not to continue, what to change, what to improve on for now and into the future.
I was not saying that we were bound by the evils and prejudices and ignorance of even the best of our ancestors. It is an absurdity of how the written Constitution is used that instead of it being seen as a general plan that we use based on further knowledge gained in the history of its use, with all of the disasters that have resulted under it. The Civil War being a direct result of the Constitution in which those who had an aversion to slavery accommodated it to the demands of those who kept people in slavery and stole their lives and labor. That terrible consequence of the words and intentions of "the Founders" should prove that we must rely on our knowledge and conclusions they didn't have access to to guide us away from their mistakes, errors and corruptions in the future. To make their intentions the only means to use the Constitution is to invite a repetition of the disasters they wrought.
But the allure of enlightenment fundamentalism that can't imagine its way out of the insistence that our use of the Constitution must rely their intentions, not on the hard lessons of history that we as People and as a nation have experienced, not on the morals of People less willing to accommodate the law and life of the country to some of the worst among us, including most of those who met in Philadelphia to draft the Constitution, including Jemmy Madison and Alexander Hamilton and John Jay.
The citation of "history" by Roger Taney in crafting the worst decision of the Supreme Court to date should be understood as the definitive proof of how that dishonest conception of the Constitution was dangerous then and is still dangerous now as the Roberts Court destroys the progress made in the Voting Rights Act, civil rights laws, and as it does to previous decisions of the court in civil rights and Roe vs. Wade - repealing, arguably, those Court made revisions to the Constitution while leaving the worst of them in place. That is related to what Boudin means in his next sentences.
As with formal Biblical Fundamentalism created as a tool of racial segregation, the retention of privilege by those privileged through it, holding back the tendencies to change based in hard won experience, constitutional "originalism," "textualism," etc. is a scheme for keeping us in the same unequal, slavery enabling and wage slavery for the most, privileges for the already rich and fortunate, it was when Taney was lying about history of the legendary "founding" of the Constitution, it is today when it's the Roberts Court members who do it to cement inequality and neo-apartheid into the law.
But, on the other hand, it is also undoubtedly true that Chief Justice Taney was not merely reciting an historic record but was making this supposed record the basis of his contention that free Negroes could not be citizens within the provisions of the Constitution. The point of his argument was that Negroes were considered so degraded a race that the Constitution could not possibly have meant them to be included in the word "citizens," when it provided that a citizen may sue in the Federal courts.
We need not discuss here whether as a matter of logic the conclusion at all follows from the premise. The important thing is, that the historic fact of an alleged degradation of the Negro race at the time of the adoption of the Constitution was being made the instrument of continuing that degradation under the Constitution. Which is, of course, quite a different matter from the disinterested recital of historic facts.
But the matter looks even worse after we read in Judge Curtis' opinion the recital of numerous facts that conclusively prove that Chief Justice Taney's statement with respect to the alleged universal degradation of the Negro at the time of the adoption of the Constitution is untrue in point of fact. Under these circumstances the matter becomes rather serious; not only was the Chief Justice reporting history incorrectly and indulging in questionable logic, but he was using these false historical data as the instrument of the questionable logic in order to arrive at a conclusion which would permit the continuance or accentuation of conditions unfavorable to the Negroes at the present day under the Constitution.
I contend that that practice is far more dangerous now than it was during the period of Taney due to the adoption of even more dangerous theories of biological and materialistic determinism, the claim that biological inheritance determines such things as imaginary predispositions to bad behaviors, criminality (forgetting that what is "criminal" is largely an invention of governments and judges and not biological in its origin, something you would think lawyers might understand about their own work but never seem to) and that absurd product of reification and prejudice and class, "intelligence." The part that the pseudo-scientific literature of neo-eugenics informs the prejudices of the sitting Republican-fascist "justices" is something I'd really like to know, I would like to know how many of them have read "The Bell Curve" or its like. That such "justices" rely on other bad science and dishonest history is as true today as it was when Taney was amending the Constitution by judicial fiat in his time. That might happen in Congress and in the Congressional record but Congress being a far larger body, its dangers are probably somewhat mitigated by that fact. And, unlike the Courts today and in most of our past, some of the members of Congress have sufficient understanding of mathematics, science and history so that those are represented in the decision making of those bodies.
But however poor the logic, and however untrue the history, there was the resulting conclusion, joined in by the Chief Justice and a majority of the Court that the word "citizen" as used in the U. S. Constitution did not include free Negroes. And if that be so, the plea in abatement should have been sustained, and the case dismissed in the court below for want of jurisdiction. For if a free Negro cannot be a citizen, Dred Scott could not be a citizen of Missouri; and if he could not be a citizen of Missouri, there could not be the diversity of citizenship within the meaning of the Constitution, upon which Scott relied in resorting to the Federal courts. This legal conclusion led directly to the judgment actually rendered; namely, that the judgment of the court below, which was a judgment upon the merits was wrong, and that the suit should be dismissed for want of jurisdiction.
Which is where you would think it would have ended, but Taney and his colleagues couldn't have cemented slavery into the law and, so, the country without taking extra steps. In order to do that they had to not only elevate themselves to a position of power to do that but they had to demote the role of the First Branch, under the very Constitution that they amended, they had to make Congress subject to that new power in the Court nullification of the Missouri Compromise. So we can see the already appalling Dred Scott decision was even worse than the common-received lore about it leads us to imagine.
