Thursday, April 12, 2007

Confederate "Heritage" Month, April 12: the "Dred Scott" decision

There is a new paper available from two of the bloggers/law professors at the Balkinization blog that gives us
13 Ways of Looking at Dred Scott (blog post); the full paper of the same name is also available online: Balkin, Jack M. and Levinson, Sanford V., "13 Ways of Looking at Dred Scott" . Chicago-Kent Law Review, Vol. 74, No. 800, p. 101, 1999 Available at SSRN: (page down to "Download the document from: Social Science Research Network, etc. )

The paper's abstract says:

Dred Scott v. Sanford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who American belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound torespect.

Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it.

Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. One the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine. (my emphasis)
Dred Scott is a favorite citation of the anti-abortionists as an example of a Supreme Court decision that was bad law and produced bad results. They viewed the Roe v. Wade decision that legalized abortion in the US in the same way.

The authors draw on Chief Justice Taney's infamous decision itself to describe the basic facts of the case, whose full name was Dred Scott v. Sandford:

Roger Taney’s opinion in Dred Scott ... begins with a relatively lengthy “agreed statement of facts," from which we can glean a fair amount about the actual people at the heart of the case. We learn that

Dred Scott himself, as of 1834, “was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States.” Dr. Emerson traveled from Missouri to a military post across the Mississippi River in Rock Island, Illinois, and took Scott with him, “[holding] him there as a slave until the month of April or May, 1836.” Dr. Emerson then went back across the Mississippi, traveling north to a military post at Fort Snelling (near present day Minneapolis). Again, he took Scott with him and “held the plaintiff in slavery at said Fort Snelling” until 1838.
The case had to dowith whether Scott's presence in free states had made him free and also with whether he as a slave had legal standing to bring the case before the courts. The decision went much beyond the straightforward question of Scott's claim to freedom, which was rejected. As Balkin and Levinson write:

Indeed, chief among the reasons why Dred Scott is the most reviled opinion in the history of the United States Reports is its abject racism and devotion to white supremacy.

Dred Scott connected four ideas: race, status, citizenship, and community. It connected race to status by arguing that blacks were necessarily and properly of lower status — and that whites should enjoy higher status — because of their respective races; indeed, it assumed that blacks could be enslaved because of their race. It connected race to citizenship by arguing that by virtue of their race blacks could never be citizens. It connected race to community by associating the people of the United States with its citizens, so that those who could not be citizens were forever outside the political community. According to Dred Scott, the members of one race “owned” the United States; it was “their” community and “their” country, and all other races were permitted to remain only on its terms.
Their "13 ways" of looking at the case include the following, each of them explained at some length in the paper:

1. The facts of Dred Scott

2. Dred Scott, race, and citizenship

3. Are there people with no rights that "we" are bound to respect?

4. Dred Scott and whether the Constitution is a "suicide pact"

5. Dred Scott, originalism, and the living Constitution

6. Dred Scott and "substantive due process"

7. Dred Scott and Constitutional evil: does the fault like in the judges or in the Constitution itself?

8. Dred Scott and the "internal" and "external" perspectives on Supreme Court decision making

9. Is there anything good about Dred Scott?

10. Dred Scott and the counter-majoritarian difficulty

11. Dred Scott as an example of "partisan entrenchment"

12. Dred Scott and responsibility for the Civil War

13. Dred Scott and the importance of courts
Their article is in a legal journal, intended for use by legal scholar, attorneys and judges. So it's not written in a "popular" style, and it deals with various issues of law and legal philosophy that don't appear in the headlines every day. But it is certainly an informative look at the case and its continuing significance, both in history and in law.

Balkin and Levinson in their work give particular attention to the broader political and social context of court decisions. And one of their points in this essay is that American historical and legal scholarship may tend to elevate the importance of courts and court decisions in historical events to a level of significance that may be exaggerated.

But they aren't claiming that Dred Scott was insignificant. I found their thoughts about the consequences and potential alternative scenarios especially interesting:

The problem with Dred Scott may have been not merely that it made the law more unjust - a judgment that people in 1857 would clearly disagree about, but that it made it more difficult for many people to believe that the law could get more just from their particular perspective. Dred Scott made it far more difficult to reach legislative compromise, because it simultaneously outlawed the Republican Party platform and split the governing Democratic Party coalition, which helped elect Abraham Lincoln. Lincoln’s election, in turn, pushed the South toward secession. If Dred Scott was a bad example of judicial statesmanship, it was not because the Court reached out to decide an issue unnecessarily, but because it reached out to decide an issue in a way that made peaceful politics impossible. Under this line of criticism, Dred Scott was a bad decision if one thinks that war is generally a bad thing, even if it sometimes leads to good things like the abolition of slavery, and if one thinks that keeping the peace - even with slavery intact - is usually more desirable than justice.

The argument that peace is better than justice is, we think, a more plausible version of the familiar criticism leveled at Dred Scott. But it too faces considerable difficulties. Even if Dred Scott had been decided differently, it is not clear that it would have forestalled the Civil War. A decision refusing to give the South constitutional protection from the Republican Party - and, even more to the point, a decision actually freeing Scott - might have led to civil war more quickly and on terms far less favorable to the North. In 1857 the White House was inhabited by the feckless James Buchanan, who, although he believed secession illegal, read the Constitution to prohibit the national government from actually doing anything about it. With Buchanan at the helm in the early years of the Civil War, the South might well have succeeded in breaking away with slavery intact. So if Dred Scott did lead to war by causing Lincoln’s election, that is presumably all to the good if one supports the maintenance of the Union and the emancipation of the slaves. To criticize Dred Scott on consequentialist grounds, therefore, one has to be certain that the consequences of an alternative decision would, in fact, have been better. (my emphasis)

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