Confederate "Heritage" Month, April 20: More on the Dred Scott decision

There have been a number of posts recently at Jack Balkin's Balkinization blog related to the Dred Scott decision. The posters there are law professors and they don't always explain the cases they mention for us lay people. But there is a lot of interesting informtion there. Here are some of the posts:

Andrew Jackson and the Constitution by Mark Graber 04/09/07:

The University of Kansas Press has just published Gerard Magliocca’s, Andrew Jackson and the Constitution, a wonderful study of the constitutional politics of Jacksonian America. ... Jackson was our first imperial president and fashioned precedents that still structure separation of powers struggles in the United States. Persons seeking to understand President Bush must understand Andrew Jackson, and this book is the place to start.

Any suggestion of kinship between Andrew Jackson's Presidency and Dear Leader Bush's regime make me want to retch. But we'll leave that aside for now, even though my keyboard may need to be cleaned now.

... Magliocca details how the antislavery turn to immediacy was inspired by the treatment of the Cherokees during the 1830s and that one central purpose of the 14th Amendment was to prevent a repeat of the Trail of Tears. He further explains how Marshall’s understanding of national sovereignty and the rights of tribal members were core commitments of the National Republic[an] regime and would become core commitments of the Reconstruction Republican regime as well. There may be a bit of a romance here, but John Bingham’s repeated references to both Worcester and the fate of the Cherokees during his 1860 speeches make clear that the revival of Worcester was (almost) as central to the Republican constitutional universe as the repudiation of Dred Scott. The latter, Magliocca points out, was (almost) as much an expression of Jacksonian constitutional commitments as an expression of proslavery constitutionalism.(my emphasis)

Taney as Imperialist (and Racist) by Mark Graber 03/26/07:

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty.

Should The Civil Rights Cases be cited? And can Roger Taney get an honest hearing from Justice Breyer? by Sandy Levinson 03/26/07

Apologizing for Slavery by Mark Graber 03/20/07:

More broadly, the contemporary historian consistently finds that you smell slavery’s influence no matter where you scratch in antebellum America. To take an example from the Dred Scott text, the House of Representatives, Presidency, and federal court system were structured in ways thought to magnify the influence of slaveholders. Similar studies have been done of South Carolina and Virginia.

Is Dred Scott uncitable? by Jack Balkin 03/26/07

Why Would An Inferior Court Judge Ever Cite Dred Scott? by Jack Balkin 03/27/07

Those previous two Balkin posts have to do with this article: A deplorable citation by Gregory Wallance The National Law Journal 03/26/07. Wallance writes:

A few weeks ago, in Parker v. District of Columbia, a federal court of appeals struck down as unconstitutional a gun control law prohibiting possession of "functional firearms" in the owner's home. In its opinion, the majority cited the U.S. Supreme Court's disastrous Dred Scott case of 1857. Whatever the merits of its opinion on gun control, the majority's undoubtedly well-intentioned citation resurrects a shameful ruling.

Not surprisingly, the Parker v. District of Columbia ruling broke new ground, as explained in this statement from the Bradey Center to Prevent Gun Violence: Parker v. District of Columbia, 311 F.Supp.2d 103 (D.D.C. 2004); statement undated but was apparently released in March 2007. The statement observes:

The ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that "reasonable restrictions" to promote "the government's interest in public safety" are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia.

Wallance also summarizes Dred Scott and its effects at the time:

In a country that was a tinderbox, the Supreme Court had struck a match. Dred Scott hurled the nation down the path to the Civil War. The Dred Scott case was reversed only by the deaths of 600,000 American soldiers. ...

In fact, there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court. By 1857, according to Don E. Fehrenbacher, in The Dred Scott Case: Its Significance in American Law and Politics, Taney, a former slaveholder from Maryland, was a "bitter sectionalist, seething with anger at Northern insult and Northern aggression." Although the case should have been resolved on narrow, technical grounds, Taney went out of his way to write a sweeping opinion that resolved every issue affecting slavery in favor of the South. In doing so, he mischaracterized outright provisions of the Constitution that addressed slavery.

A cascade of Northern anger descended on Taney after the first newspaper accounts of the ruling as read out loud by Taney in the Supreme Court. Taney instructed the clerk of the Supreme Court not to release the written opinion to anyone, even the dissenting justices. He then rewrote the opinion to respond to his infuriated critics, expanding its length by nearly a third. We will never know if the passage cited by the Parker majority was written when a bitter, resentful chief justice found himself besieged in a political firestorm. One Northern newspaper editorialized that Taney's opinion deserves no more respect than "what might be obtained in a Washington City barroom." That observation is still true. (my emphasis)

Tags: civil war, dred scott decision, jack balkin, mark graber, sandy levinson, us civil war

Confederate "Heritage" Month, April 4: Slavery and antebellum American politics

Mark Graber raises an interesting historical point in The Election of 1800 Balkinization blog 03/14/07. He refers to the historical tradition that sees hositility to the repressive Alien and Sedition Acts under the John Adams administration as the main reason for the victory of Jefferson's Republican Party in 1800. (Don't get confused; Jefferson's party was called the Democratic-Republican Party but was commonly referred to as the Republican Party. It was during Andrew Jackson leadership that it became known as the Democratic Party.)

Graber writes:

The influence of the Alien and Sedition Acts on the election of 1800 has become academic folk wisdom, passed down from one law professor to another without much review of the original evidence. Perhaps the voting data provide support for this claim, although I am skeptical. More to the point, I am reasonably certain that contemporary scholars who make this claim are not very familiar with the actual data. It's just a good story that portrays the ratification generation in the best possible light. The only problem is that slavery and race cast a broad shadow on that generation and by not being aware of just how pervasive slavery was in early American politics, we may fundamentally misconstrue the nature of that political regime and our own. Perhaps instead of blithely apologizing for slavery, states and universities ought to look more deeply at the myriad ways in which white supremacy and human bondage structured American political developments that, at first sight, seem to have little to do with the peculiar institution.

The "peculiar institution" was slavery, still a commonly used reference.

Graber is the author of Dred Scott and the Problem of Constitutional Evil (2006).

Graber also posted last week on Justice Roger Taney, who headed the Court at the time of the notorious Dred Scott decision of 1857, which is often called the most disastrous Court decision in American history, though Bush v. Gore (that decided the 2000 Presidential election) may wind up being considered even more damaging in its long-term effects: Taney as Imperialist (and Racist) 03/26/07. This one is particularly interesting to me because it talks about the variety of Jacksonian political thought that Taney followed. Taney (pronounced like "Toney") had served as Old Hickory's Attorney General and then as his Secretary of the Treasury, where he was the administration's point man in the fight against the Bank of the United States, and was considered a democratic radical for that role. Jackson appointed him Chief Justice.

See my post of 04/09/04 from my first annual Confederate "Heritage" Month postings, for more on the Dred Scott decision.

Graber writes about the sometimes surprising and contradictory effects that Jacksonian democratic egalitarianism had in the context of a republic that held million of its people in chattel slavery:

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty. Whig anti-expansionism was often as racist. Expansion was bad, many argued, because expansion increased the number of nonwhites in the United States (and Whigs were not quite [emphasis on "not quite"] as comfortable as Jacksonians with the doctrinal moves necessary to fence persons of color out of citizenship rights).

While Taney’s thought was not all of on[e] piece (whose thought is), his premises were not utterly disconnected. Taney was not simply a racist pro-slavery advocate, he was a Jacksonian racist pro-slavery advocate. How he understood race and slavery was in part structured byJacksonian commitments (Austin Allen's new book is very good on this). (my emphasis)

Also at the Balkinization blog, which features legal scholars focuses on legal issues, the blog's namesake Jack Balkin has made a couple of recent posts on the Dred Scott decision, which was just recently cited by the D.C. Circuit Court as a precedent in a decision: Is Dred Scott uncitable? 03/26/07 and Why Would An Inferior Court Judge Ever Cite Dred Scott? 03/27/07. The recent case involved a federal gun control law. Balkin also talks about the way anti-abortionists use the Dred Scott decision in their argument against the validity of the Supreme Court's Roe v. Wade ruling. I cited its appearance as anti-abortion code in Second Bush/Kerry debate (1) 10/08/04.

Tags: civil war, dred scott decision, jack balkin, mark graber, us civil war