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.
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