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Unhappy Anniversary:

Today marks the 150th Anniversary of Dred Scott v. Sandford. Tony Mauro comments at BLT here.

Anderson (mail):
A lollipop to the 1st person who finds a seriously intended comparison of Scott and today's Libby verdict as twin examples of judicial injustice.
3.6.2007 12:56pm
jim:
I recall once reading a lengthy exchange between Robert Bork and Harry Jaffa that made clear that the critique of Dred Scott is important to some conservative legal thinkers, but that didn't do much to unravel a confusing legal issue. I would be interested to hear commentary on the questions in the case from any of the conspirators. Obviously the broad dicta was wrong, but what about the narrower questions?

Under the antebellum constitution, did Scott, residing in a state that didn't consider him a citizen, really have any chance at suing in Federal Court? Was the Federal government granted the power to permanently remove the property interest Scott's master held in his person when they entered Wisconsin territory? And could it do so without first convicting Scott's owner of a crime — say, transporting illegal property into Federal jurisdiction?

And does the way these questions are answered have important effects on the interpretation of the post-Reconstruction Constitution, particularly the amendments targeting the decision?
3.6.2007 1:34pm
y:
"Unhappy anniversary"? Why? It's the day marking the birth of evolving American rights, unbounded by the cold, outdated text of the constitution! A day that safeguarded every individual's right to own property, to maintain his intimate personal affairs, and observe his own morality without imposition from religious fanatics!! And it undoubtedly succeeded in its mission of calling the contending parties together to observe a reasoned truce grounded in the Constitution.

Sarcasm aside, whether Scott was constitutionally a person and able to sue is a fascinating point debated between the dissent and majority view. Perhaps the "right" decision at the time would have been to quietly dismiss the claim. But the stuff about property rights (though much sturdier than "privacy rights" because property is at least mentioned and protected in the due process clause, takings clause, etc, and slavery is hinted at) and invalidating Congressional Acts was incredibly overreaching. Due process just can't reach the substance of laws that try to eliminate certain "property."
3.6.2007 2:13pm
Enoch:
Unhappy for who? The Widow Sandford was happy to get her property back.
3.6.2007 2:15pm
Hebrew Atheist:
The Dred Scott decision: A fitting monument to legal positivism.
3.6.2007 2:29pm
donaldk2 (mail):
I seem to remember a comment from Robert Bork, answering a question from the imbecile Teddy Kennedy (actually a diatribe stating that if Bork were an S.C. Justice, we could expect a replay of Dred Scott). Bork responded that the Scott decision reflected an assertion of substantive (as against procedual) due process - a principle that Bork had always opposed. Being right did not help him, as we know.
3.6.2007 2:30pm
Rattan (mail):
Scott had the intent to stay in the State so his domicile was in the State. Slave he may have been due to no fault of his own, but he was no fool seeking to rush back to be enslaved and abused. Under the Antebellum Constitution arguably as far as citizenship of a State is concerned, there is no room for a state to grant or deny citizenship under the facts. The inquiry begins and mostly ends with the domicile issue.

As to the property interest, Scott's master knew of (should have known) the common law rule (Lord Justice Mansfield's decision about freedom in England etc.) and the resistance to slavery in free states. To the extent the owner compromised his contractual rights (amounting to slavery by owning the fruits of labor of the slaves) by crossing state lines, the risk lies with the owner.

As an example, if I were to drive my car into a lake hoping that it would resist water damage- and it does not, the loss is to be borne by me even if it means I cannot retrieve the car or use it unless it willingly comes out of the lake. I still have ownership, but can only exercise it if the car is in a state where I can profitably use it. The owner of Dred Scott was in a similar position. Indeed, the law about ownership of a wild animal is closer in that if you cede control by releasing it in the wild, then unless you can figure out a way to capture it again, you have no dominion or title to it. In a free state, Dred Scott could not be caught as he had been brought there willingly by his owner- he was not an escapee.

Cutting owners a lot of slack for casual treatment of disputed rights over the labor of others was a mistake by the Supreme Court that diminished it as much as Lord Mansfield's decision distinguished him. Indeed, the Supreme Court by judicial fiat denied and abrogated citizenship of all blacks-free or not- a rather weird application of Justice Marshall's strategy of pleading no jurisdiction while actually settling the underlying case or controversy.

I may have to give up claims on the lollipop, much as I like my sugar high, for there is little injustice in Libby's case. I think the case against Libby should not have been brought in the first place for it is too much like selective prosecution. The only parallel I can draw is that by punishing Libby alone, the sins of others may have been excused. As a citizen I rely on open and accurate information from the government in making my decision to vote/lobby/not vote. To the extent the government seeks to deny accurate information, I am not happy or sympthetic. Indeed, the punishment should have been harsh to discourage the sort of thing that went on in the build up ot the war and afterwards.

I supported the Iraq invasion and I still beleive it was the right thing to do- notwithstanding the management debacle. The uranium deal was really unimportant to the decision and should have been treated as such. However, there is no excuse for being less than prepared or being devious in cooperating with an inquiry as apparently Libby was. Mere cooperation and care to ensure no defensiveness can be even inferred would have killed the inquiry of its own accord. This may incidentally provide a parallel in that if the owner(s) of Dred Scott had been careful, there would have been no case to tempt the judicial process.
3.6.2007 2:31pm
Spitzer:
There's an interesting Supremacy Clause issue in the case: the Court holds that individual states can make a person a "citizen" and member of that commonwealth, and in so doing give such a person all privileges and immunities enjoyed by citizens of that state within that state, but that the state's act cannot bind the federal government. The latter point is relatively obvious; what's interesting is is the former issue - could a state, even today, grant a kind of territory-delimited citizenship to people who are not United States citizens? This is an issue that touches on things such as eligibility for state benefits and state drivers' licenses, and voting in state (but not federal) elections. I would have thought the foreign commerce clause or the citizenship clause would have dormantly preempted the exercise of state sovereignty in that arena, but what do people think? Could a state constitutionally grant voting privileges to illegal aliens in state and local elections?
3.6.2007 2:34pm
Rattan (mail):
donaldk2 said

I seem to remember a comment from Robert Bork, answering a question from the imbecile Teddy Kennedy (actually a diatribe stating that if Bork were an S.C. Justice, we could expect a replay of Dred Scott). Bork responded that the Scott decision reflected an assertion of substantive (as against procedual) due process - a principle that Bork had always opposed. Being right did not help him, as we know.


Judge Bork was not right and this case was all procedure - little or no substance except in that it abrogated the contractual property rights of free blacks who earned their freedom from their slavery contracts by denying them even their citizenship. It is a popular strategy to imagine contractual or property rights only on one side as seems to be the case in Judge Borks careless and incoherent comment.

The record is overwhelmingly clear that the procedural trick of pleading no jurisdiction based on a fresh denial and abrogation of citizenship of all blacks based on unsubstantiated presumptions (assumptions that most of us now know are not only wrong but poisonous) that directly conflicted with the equitable powers vested in the Court by the Constitution. This was a tainted case at many levels in which the Justices were putting in place a political request by the President in waiting instead of doing their job.

Judge Bork would have distinguished himself if he had the guts to cite this decision as being one that qualified many of the justices in the majority for impeachment for high crimes . . . . But Judge Bork did not have or meet such minimal standards.
3.6.2007 3:49pm
Just Dropping By (mail):
"Could a state constitutionally grant voting privileges to illegal aliens in state and local elections?"

Not only is that a theoretical possibility, but a number of state and local jurisdictions did allow such voting at one time. See the discussions here:

www.immigrantvoting.org/statehistories/statelist.html
3.6.2007 3:59pm
donaldk2 (mail):
I would not want to lumber Judge Bork on the basis of my recollection, which could be entirely mistaken.

I appreciate the correction.
3.6.2007 4:07pm
y:
"Judge Bork was not right and this case was all procedure - little or no substance except in that it abrogated the contractual property rights of free blacks who earned their freedom from their slavery contracts by denying them even their citizenship. It is a popular strategy to imagine contractual or property rights only on one side as seems to be the case in Judge Borks careless and incoherent comment."

I don't understand. Aren't you looking at it only one way? I think it's an intriguing question to ask what Scott meant for slaves who fulfilled a contract promising to free them, but whose contract wasn't honored.

But slaves in territories who could not work to free themselves had to be freed by Congressional Act. And the Court argued, among other things, that such an Act denied slaveholders of property without due process. This would have held even if the Court claimed blacks could be citizens. And that's the substantive part.
3.6.2007 4:22pm
AC:
Dred Scott v. Sandford is usually said to be the second case where a federal statute was declared unconstitutional, with Marbury v. Madison being the first. What was the third? The Civil Rights Cases?
3.6.2007 4:55pm
Rattan (mail):
y said:

But slaves in territories who could not work to free themselves had to be freed by Congressional Act. And the Court argued, among other things, that such an Act denied slaveholders of property without due process. This would have held even if the Court claimed blacks could be citizens. And that's the substantive part.


Interesting issue. It was not before the Court. Dred Scott was not such a slave. He and his kin were brought into a free state by a willing owner, who now was resisting the logical consequences. Substantive error was in conflating this with all sorts of strange property rights being imagined at the expense of basic freedom, the declaration of independence, common law, principles of equity, common sense and the property rights of all blacks (may be non-whites, although the terms 'white' and 'black' as a racial descriptors are inaccurate and meaningless because most of us are both white and african/black with the exception of albinos maybe- but they are not white, being pink and african instead). All this to please slave owners and a President in waiting, who was actively trying to interfere in a pending case using private communications.

A striking feature of the decision is the ignorance and lack of curiosity that drips from most of its description of what the Justices hopefully thought were lofty principles (rather than defiant admission of corruption at the top).

As to cultural factors underlying this mistake, even a cursory familiarity with the Bible could have set the Court straight for not even the Book, which is not exactly shy about respecting slavery and other such institutions, comes to such drastic conclusions for humans of any particular shade of color. For example, Adam is not described as having dominion over all beasts, plants etc. and blacks. Assuming some minimal adherence to the New Testament by many of the Justices, it is even more difficult to understand the tortured logic that led to the assumptions made in the case unless understanding the written word was not their strong point.

The case is an extreme example of misbehavior by Justices with conflicts of interest who bet they were safe in furthering their own ownership interest in slaves and the political protection they assumed would be there for them. They were right in their assumption about political protection.

Interestingly, the Origin of Species was published soon after the Dred Scott decision with the Civil War to be followed by publication of Descent of Man. So, to be fair, knowledge of these tomes cannot be expected on part of the Justices.
3.6.2007 5:16pm
Colin (mail):
Interestingly, the Origin of Species was published soon after the Dred Scott decision with the Civil War to be followed by publication of Descent of Man. So, to be fair, knowledge of these tomes cannot be expected on part of the Justices.

Did I miss part of the discussion, or is that a non sequitur?
3.6.2007 5:41pm
Ship Erect (mail) (www):
I think Rattan's point was that both Origin of Species and the Bible contradict, from opposing ends of the historical spectrum, the property rights claims underlying the Dred Scott decision. So does the Communist Manifesto, published nine years before Dred Scott was handed down.
3.6.2007 6:41pm
PaulB (mail):
Anyone with interest in this subject should read "The Dred Scott Case: Its Significance in American Law and Politics" by the late Stanford historian Don Fehrenbacher.
3.6.2007 8:42pm
Mark Field (mail):

Anyone with interest in this subject should read "The Dred Scott Case: Its Significance in American Law and Politics" by the late Stanford historian Don Fehrenbacher.


I second that recommendation.
3.6.2007 9:50pm
Rattan (mail):
AC said:

Dred Scott v. Sandford is usually said to be the second case where a federal statute was declared unconstitutional, with Marbury v. Madison being the first. What was the third? The Civil Rights Cases?


Actually it is the first case. Marbury avoided doing anything including upholding the property right claimed by Marbury in his request for Mandamus to perfect his Justice of Peace commision. Marbury is similar to the dismissal of the claims of the kidnapped German citizen (by the CIA), who was released after allegedly being tortured. The cause offered was State Secrets instead of no jurisdiction. In these cases the property right claims of plaintiffs were extinguished without compensation of any sort.
3.7.2007 12:11pm
Mark Field (mail):

Actually it is the first case. Marbury avoided doing anything including upholding the property right claimed by Marbury


It's my understanding that MvM struck down a law granting jurisdiction to the Court to issue mandamus. The US government also thinks this was the holding.
3.7.2007 1:44pm
Rattan (mail):
Mark Field points out that the US government thinks the holding of Marbury was that the statute was unconstitutional.

The statute in question had the qualifier "in cases warranted by the principles and usages of law," (emphasis added) which I understand allows it to survive the decision and limits it to appellate cases. Thus, it is a question of statutory construction to determine the type of jurisdiction actually conferred by the statute.
However, the opinion is not so clear because it conflates the "bar" argument that the statute did provide original jurisdiction with the statute itself. Thus, the rule not adopted seems to me to be the interpretation urged on the Court, but it could be the statute to as many others seem to think.

It seems the briefs need to be consulted to figure out why the case is interpreted to require invalidation of the statute? I may just have forgotten the law school details about this aspect. Any help?
3.9.2007 2:40pm