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Were a person to have violated a court order directing the return of a runaway slave when
Dred Scott was the law, would a genuinely held belief that a slave was a human person and not an article of property be a matter the Court could not consider in deciding whether that person was guilty of a criminal contempt charge?
Anyone remember
Dred Scott... having the Court legislate hasn't worked well in the past, and now we do repeat it.
The notorious
Dred Scott decision (1837) asserted that because slaves were their masters» property Congress could not ban slavery anywhere in the United States — a holding that ignored the Framers» compromise of tolerating slavery temporarily but allowing eventual measures against it.
(Roe's theory of «substantive due process,» which was also the basis for
Dred Scoff and Lochner, has always landed the court in trouble, because it strikes down properly enacted laws that interfere with whatever the justices conclude is an important «liberty»)
Pretty strong language, but no stronger than the metaphor Daniel Mitchell of the Heritage Foundation used, in an op - ed article in The Washington Times, to «describe a bill designed to prevent corporations from rechartering abroad for tax purposes: Mitchell described this legislation as the «
Dred Scott tax bill,» referring to the infamous 1857 Supreme Court ruling that required free states to return escaped slaves.
By ruling that slaves had no rights that white men were required to respect, the infamous
Dred Scott decision of 1857, said Lincoln, was responsible for «blowing out the moral lights.»
Lincoln really was guided by his view of what the Constitution required of him: to fight secession; flout the Supreme Court's fabrications in
Dred Scott; and in these great causes deploy all his lawful powers as commander - in - chief — including that «seizure» of enemy «property» called the Emancipation Proclamation.
Defiance of
Dred Scott thus would be futile, as long as the courts were open.
Having in mind the shameful jurisprudence inaugurated by the Court in
Dred Scott in the mid-nineteenth century, Lochner v. New York in the early twentieth, and Roe v. Wade and numerous other partisan decisions in our own time, one might say: «I'm sorry, but that is, to say the least, not persuasive.»
It would be interesting to know as a matter of history whether President Lincoln's desire to limit the binding force of
Dred Scott ever found its way into a practical legal argument.
In thinking about them, we should bear in mind that Lincoln refused to accept the ruling of
the Dred Scott Court that blacks — even free blacks — could not be citizens.
Had the matter not finally been settled by the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments, this pressure might well have resulted in a gradual dismantling of
Dred Scott.
Defenders of the Supreme Court's infamous pro-slavery decision in
Dred Scott v. Sandford, for example, advanced precisely this view of judicial power.
Hey
dred — Do you realise that Belfast — in Northern Ireland is built on seven hills?
This happened, for example, when the Supreme Court of the United States, in a ruling that helped to precipitate the Civil War, held in
Dred Scott v. Sandford that blacks were noncitizens» and, for all practical purposes, nonpersons» possessed of no rights that white people must respect.
To call what the Court has done, from
Dred Scott to Lochner to Roe, «natural law reasoning» is to confer unwarranted dignity on a series of results resting on nothing more than assertion.
Congress has not defied the Supreme Court, as it ultimately did in
Dred Scott.
There are, of course, a great many cases, beginning with
Dred Scott, that use the same due process technique to reach results Ball abhors.
Roe and the decisions reaffirming it are equal in their audacity and abuse of judicial office to
Dred Scott v. Sandford.
Just as
Dred Scott forced a southern proslavery position on the nation, Roe is nothing more than the Supreme Court's imposition of the morality of our cultural elites.
As many others have done, the religious leaders point to the ominous parallels with the infamous
Dred Scott decision about slavery in 1857.
I think the Supreme Court got it wrong in 1857 in
Dred Scott v. Sandford, when it held that an African - American whose ancestors had been brought to the U.S. as slaves could not be a citizen and thus had no legal standing.
He was given the presidency in a Supreme Court decision that rivaled
Dred Scott for stupidity.
Our archonocracy has arisen... not from the intent of the Framers but from the claim of the Court, first enunciated and implemented in
Dred Scott, that it has the duty (hence power) to void Federal law it deems unconstitutional.
The conference finally adopted several arguably peripheral constitutional amendments such as forbidding acquisition of new U.S. territory without approval by a majority of both slave - state and free - state senators, guaranteeing federal compensation for fugitive slaves when failure to return them was due to anti-slavery violence or intimidation, and restoring and perpetuating the Missouri Compromise line that once satisfied both regions but had been struck down by
the Dred Scott decision.
The famous
Dred Scott decision of 1857 well illustrates his status during slavery.
Justice Antonin Scalia declares in Stenberg v. Carhart that he is «optimistic enough to believe» that the decision constitutionally protecting partial «birth abortion will «one day... be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu [validating internment of Japanese «Americans during World War II] and
Dred Scott [holding white supremacy and racial slavery as fundamental tenets of American constitutionalism].»
The Justice labored mightily only to produce an intellectual and moral embarrassment, one that will shadow him forever in much the same way and for much the same reason that
Dred Scott haunts the reputation of Roger Taney.
And occasionally, as with the infamous
Dred Scott decision or with Roe v. Wade, a case is decided so wrongly that it is or eventually will be overruled.
Sandford (whose name was actually Sanford), acting on behalf of his sister who was
Dred Scott's owner, injected into the litigation the question whether any black person, free or slave, could be a citizen of the United States, and he directly challenged the constitutionality of the Missouri Compromise of 1820, which forbade slavery in the Louisiana Territory north of latitude 36 ° 30».
With the specter of civil war looming, the new President, who had denounced
the Dred Scott decision repeatedly in his senatorial campaign against Douglas in 1858 as well as in the presidential campaign, turned attention to it in his remarks to the nation.
'» To Lincoln
Dred Scott was an abomination, but for reasons of principle going even beyond those set forth by the dissenting Justices in the case.
For Lincoln, then, the evil of
the Dred Scott decision was not merely the expansion of slavery.
In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat
the Dred Scott decision as creating a rule of law binding on the executive branch.
Whatever Marbury was supposed to mean about the scope of the power of judicial review, it is a notable fact that the Court declined to exercise that power to declare another act of Congress to be unconstitutional until 1857, when it ruled in the case of
Dred Scott v. Sandford.
McPherson points out that «so thoroughly did
the Dred Scott decision pervade and structure the Lincoln - Douglas debates [in 1858] that in one of those debates a Douglas supporter shouted from the audience to Lincoln: «Give us something besides Dred Scott.»
Does the Supreme Court's ruling striking down state prohibitions of abortion in the 1973 cases of Roe v. Wade and Doe v. Bolton belong on the plus side of the Court's ledger with Brown v. Board or on the minus side with
Dred Scott?
His mature and most profound reflections on the scope of judicial power and the role of the judiciary in the American constitutional system came in relation to the debate over
Dred Scott.
If we like what the Justices did in Brown v. Board, let us not forget what they did in
Dred Scott.
The Taney Court that decided
Dred Scott might well have decided, if the issue had been presented to it, that the South had a constitutional right to secede.
This happened, for example, when the Supreme Court of the United States, in a ruling that helped to precipitate the Civil War, held in
Dred Scott v. Sandford that blacks were noncitizens — and, for all practical purposes, nonpersons — possessed of no rights that white people must respect.
During the nineteenth century, the Court often made up its own Constitution, most notoriously in the 1857 decision in
Dred Scott v. Sandford.
The Act barred both free and enslaved blacks from the rights of citizenship, laid the foundation for the 1857
Dred Scott Decision, and triggered more than a century of Supreme Court cases like Takao Ozawa v. United States (1922), where Ozawa argued that as a Japanese man, he was white.
If
Dred Scott had gone against the South, do you think it would not have seceded?
The final word on slavery and secession did not come from the Supreme Court's decision in
Dred Scott v. Sandford.
In other words, most today hold the Stephen Douglas view in which
Dred Scott was accepted.
The Court had a Southern majority, and Chief Justice Roger Taney, the author of
Dred Scott, was firmly committed to state - sovereignty and proslavery positions.
It was
the Dred Scott case that President Abraham Lincoln had in mind when he said in his First Inaugural Address:
Plessy v. Ferguson, the case where the Court in 1896 embraced segregation as constitutional, was the ugly, illegitimate stepchild of
Dred Scott in 1857.