Civil Rights
Why the American Revolution is not a model for gun ownership today
Often one hears Americans on the news saying that the Second Amendment is necessary to us today because we may need to take up arms against an oppressive government in the 21st century, just as we did in 1775, and that those who anticipate doing so in the near future share the motivations of Americans during the Revolutionary War. Our thoughts on the Amendment can be found here; in this post, we will spell out why our situation in this century is not at all like that on the eve of Revolution in the 18th century, although we have the feeling this should be obvious without our intervention.
—During the Revolution, we fought a foreign government and a foreign occupation.
This is the key item to note. Granted, we overstate a little, so let’s go through it and be clear. The American colonies generally had popularly elected legislatures and royally appointed governors, so laws in the colonies came from two very different sources: representatives of the American people, and representatives of the British crown. Our experience of law was mixed. Legislatures generally made life difficult for governors who betrayed the people’s interests, especially in the realm of taxation, and so the influence of royal governors, who technically reported to no one but the king, was limited. Until, that is, the 1760s, post-French and Indian War, when London began direct rule of its colonies in North America. Parliament passed Acts (Stamp Act, Sugar Act, Tea Act, Coercive Acts) which were to be enforced without any input from legislatures. Indeed, even the governors were bypassed eventually as British soldiers were sent to America to make sure Acts were enforced. Americans who disobeyed Acts were to be sent to London for trial. This is the key moment, in the 1760s, when long-standing doubts about how much the American colonies owed to Britain were crystallized for many into clear convictions that London and Parliament did not consider Americans to be British citizens and did not grant them the rights of citizens, and were thus, through these Acts, imposing a foreign government on the American colonies. By refusing to allow American representatives in Parliament, the British government was confirming this. By sending troops to maintain order, the British government was occupying lands it believed to be hostile possessions; Americans were alien combatants.
It’s very clear that we are not remotely in that position today. Any Americans who oppose the government and/or its actions (taxation, immigration, welfare) are opposing their own government, popularly elected by their fellow Americans and even, perhaps, by they themselves. We don’t need to resort to arms to oppose our government because soldiers from another country are not in our streets and homes enforcing foreign laws. We resort to the voting booth, the referendum, and the ratification process to change or oppose our government. U.S. citizens today have rights that their government enforces and upholds—and if it doesn’t, we work through the courts and the political bodies to make it do so.
—Americans during the Revolution did not fight on their own.
They fought in their locally organized militias, which joined the Continental Army led by George Washington. They fought in the army, not as a vigilante group. Individual citizens submitted themselves and their guns to a government-authorized national army. That’s hardly what people today are picturing when they say they need guns to fight the government if it becomes oppressive. In 1775, Americans were fighting a formal war against a formal army. They weren’t sitting in their homes waiting for someone to challenge them and get blown away.
—Americans during the Revolution were fighting to keep their government alive.
Americans who fought in the Revolution were hoping to see the new government, represented by the Continental Congress in Philadelphia, firmly and officially established as the government of their nation. They were not fighting to get rid of government, as so many Second Amendment fans seem to want to do today. They knew that the nation needed a strong government (though not necessarily fully centralized) to survive, and their aim was to make sure that government was fair once it was established—that’s why the Constitution was ratified by popularly elected officials, and why even common people clamored for a Bill of Rights to be added to it. Americans in the 1770s were fighting for government, not against it. They did not believe that armed individuals were a proper substitute for state and federal government.
So we have three good distinctions to draw between ourselves and our ancestors, and hopefully we can put this ridiculous argument to rest. We no longer have to use guns to maintain our freedoms; we have to use our rights as citizens to vote and participate in government to maintain our freedoms.
But what if our government becomes perverted and undemocratic, people ask? What if our political system fails? Then we’ll have to use force to protect ourselves.
it seems clear that the only way this could happen is if the American people fail in their participatory duty as citizens, so we are back to our original argument, which is that as long as we do our duty, the government we elect can never fail to be what we want it to be. It’s only by withdrawing from participation in our democracy that we lose it, and by looking for reasons to rise up in arms that we threaten ourselves with that dire possibility.
Read Full Post | Make a Comment ( None so far )Gay marriage and the tyranny of the majority—no more?
Yes, it’s the seventh appearance of this post, which we run each time the issue of gay marriage comes up in high court in the U.S. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.
Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.
Here is the original post, resurfacing now as we circle back to California. The U.S. Supreme Court is hearing a challenge to that original California ruling that made banning gay marriage illegal in the state:
The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.
A review of the constitutionally described role of the judiciary is in order.
The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.
I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.
The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.
So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.
Read Full Post | Make a Comment ( None so far )The Voting Rights Act under attack
The Supreme Court is currently hearing arguments to strike down Section 5 of the Voting Rights Act of 1965. This has been a top news story, particularly after Justice Antonin Scalia called the VRA itself (not just section 5) a “racial entitlement”. Let’s look at the VRA of 1965 and the debate over it in the Court.
The VRA was passed in 1965 as part of President Johnson’s civil rights legislation. The U.S. Department of Justice website describes it this way: “Pursuant to the Act, the Voting Section undertakes investigations and litigation throughout the United States and its territories, conducts administrative review of changes in voting practices and procedures in certain jurisdictions, and monitors elections in various parts of the country.” This means that voting procedures anywhere in the U.S. can be reviewed, especially when those procedures are changed, and that elections can be monitored to make sure they are fair. Notice the language goes from the entire U.S. and its territories to “certain jurisdictions”—this was originally directed at the southern states, where repression of black voters was well-documented. The Act does not say “southern states” because its authors knew that while it was the south that had a demonstrable problem with fair elections in 1965, the problem could crop up anywhere else at any time. So wherever unfair elections were discovered, those “certain jurisdictions” would come under scrutiny.
Sections 2, 4 and 5 of the Act are the most critical. Section 2 forbids race discrimination in poll worker hiring, voter registration, and redistricting plans. Section 4 sets out the criteria for determining when a jurisdiction is violating fair elections and voting. And Section 5 states that once your state or territory has been designated as problematic and unfair in its voting and election process, any change with respect to voting there can’t be legally enforced until it’s been reviewed by the U.S. District Court or Attorney General. Any jurisdiction with a proven history of voting discrimination had to prove that the change being proposed is not discriminatory—not just another attempt to prevent minorities from voting freely. The jurisdiction has to prove the absence of racial discrimination, and if it can’t, the proposed change cannot be made law. If the suspect jurisdiction can prove that it has gone 10 years without any voter discrimination, it is no longer subject to Section 5.
The key word in all this, of course, is proof. The suspect locale has to prove it is not discriminatory. This represents a rejection of the federal government’s traditional tactic, post-Reconstruction, of listening to southern political leaders say everything was just fine and there was no threatening or lynching of black voters and saying, Great—that’s good news.
The VRA as a whole has been re-approved by Congress several times, most recently in 2006, when it passed by a vote of 98-0 in the Senate and 390-33 in the House. At that time, House Speaker John Boehner (R-Ohio) said the VRA was “an effective tool in protecting a right that is fundamental to our democracy.”
But in the summer of 2012, Shelby County, Georgia, challenged the 2006 reauthorization, saying that Congress had exceeded its authority under the Fourteenth and Fifteenth Amendments and violated the Tenth Amendment and Article IV of the United States Constitution. To quote from SCOTUS Blog:
“…lawyer Bert Rein, representing Shelby County in its challenge to the statute… began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the pre-clearance requirement. But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not. Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it ‘may be the wrong party bringing this’ case.”
In short, Shelby County said the VRA was outdated and permanently labeled the south as racist, violating the south’s right to equal protection and due process under the law. Justice Sotomayor said this was not about the past but about the present, as Shelby County could not prove it was not discriminatory at the moment, in 2012. Between 1984 and 2010, Shelby County underwent a shift from majority Democratic to Republican, and in 2010 100% of all elected county officials were Republican. The county has not proved that this is the result of the free will of all voters, regardless of race, and not election fraud or voter intimidation, and so it must remain subject to Section 5 of the VRA.
The Court began hearing arguments in the case on February 27, 2013. This was the day Justice Scalia made his controversial claim that Section 5 was a “racial entitlement”, but his 2006 run-up to that statement is even more illustrative of how he sees the VRA:
“The comment came as part of a larger riff on a comment Scalia made the last time the landmark voting law was before the justices. Noting the fact that the Voting Rights Act reauthorization passed 98-0 when it was before the Senate in 2006, Scalia claimed four years ago that this unopposed vote actually undermines the law: ‘The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.’
“That was an unusual comment when it was made, but Scalia’s expansion on it today raises concerns that his suspicion of the Act is rooted much more in racial resentment than in a general distrust of unanimous votes. Scalia noted when the Voting Rights Act was first enacted in 1965, it passed over 19 dissenters. In subsequent reauthorizations, the number of dissenters diminished, until it passed the Senate without dissent seven years ago. Scalia’s comments suggested that this occurred, not because of a growing national consensus that racial disenfranchisement is unacceptable, but because lawmakers are too afraid to be tarred as racists. His inflammatory claim that the Voting Rights Act is a ‘perpetuation of racial entitlement’ came close to the end of a long statement on why he found a landmark law preventing race discrimination in voting to be suspicious.” [our italics]
Here is Scalia’s 2013 statement: “[The VRA was] reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.“
Scalia’s point, and that of most of the VRA’s opponents, is that the Act is no longer necessary, for two main reasons: a) the south isn’t racist anymore; b) other regions are racist but not being subjected to the Act. As we’ve seen, the Act is not written specifically for the south, but for any jurisdiction, state, or region that has provable voter repression and unfair elections. Yes, repressive new voting laws in northern and western states, usually strict voter ID laws, should be investigated as well… yet how can they be if the VRA is revoked? If the complaint is that all other regions of the nation should be equally suspect of racial discrimination in elections and should be punished for that, how can they be punished if the Act making that illegal is taken away?
What the push to revoke Section 5 and, one can’t help believing, the VRA as a whole, reveals is not a rejection of Civil War-era prejudice against the south but the very modern push to get rid of “big government”. Anti-VRA activists don’t want the DoJ involved in regulating and investigating state voting procedures. They want voting procedures to be regulated by the states, with no federal oversight, which is exactly the situation that made the VRA so necessary, when states violating fair elections were allowed to do that because there was no federal law to stop them. States with a history of racial discrimination in voting—whether it goes back to 1865 or started in 2012—have to be subject to federal oversight because they will not change their own laws.
We’re not sure if members of Congress voted to re-authorize the VRA in 2006 because they were afraid to be labeled as racist if they didn’t; we’re not sure that’s a bad thing. One would hope that being racist would always be a red flag in the United States, and something politicians would want to avoid. But we do know that there is a new trend in play, in which laws that have outlawed discrimination against minority populations have been called reverse discrimination, or revoked because they were successful. The latter is like saying, “Why do you take pills for your high blood pressure? You haven’t had high blood pressure in years. Why are you wasting all that money taking medicine for something you don’t have?” And if one replies, Well, if I didn’t take the pills my high blood pressure would come back, so the pills are preventive, the other party would say “So you’re paying good money not to fix a real problem, but to make sure a problem doesn’t happen? What evidence do you have that the problem might ever happen?” And one might say, My history of high blood pressure. And the arguer would say, dismissively, “History! You’ve got to respond to conditions as they are today, not spend money based on what happened in the past.”
But we would hold that a history—no matter how long or how short—of racial discrimination is a red flag, and needs to subjected to federal investigation in the present, to ensure the future. The fact that states all over the nation are regularly introducing discriminatory voting laws proves that we need the VRA, and need it to be more stringently enforced than ever, not that it’s time to realize that the south isn’t racist and the government’s too big and everything is just fine with voting in the U.S., and all the other claims being made in the Court and the nation as we follow this case.
Read Full Post | Make a Comment ( None so far )No gay marriage in North Carolina
Yes, I will continue to re-post this article each time the question of gay marriage comes up in the courts or the polls!
Yesterday a majority of North Carolinians voted to amend the state constitution to read that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.” This vote is an example of tyranny, and will likely spawn the same arguments decisions made by voters or state legislatures or state courts in California, Iowa, Vermont, and Massachusetts have, so here is the basic Truth v. Myth post on the role of the judiciary in the United States and the danger of tyranny of the majority in a democracy, which was originally posted in 2009 after California’s Supreme Court decision on gay marriage, once again:
State Supreme Court decisions deeming the bans on gay marriage unconstitutional continue to spawn the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” is the common complaint, as sputtered by one angry man on the radio.
The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.
A review of the constitutionally described role of the judiciary is in order.
The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans, black and white, who wanted to abolish it. The natural rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing an injustice which is fundamentally incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.
I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.
The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.
So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.
Read Full Post | Make a Comment ( None so far )Gay marriage and American Experiment approved in Maryland
When Maryland Governor Martin O’Malley signed legislation to ratify same-sex marriage on March 1, 2012, he made a powerful statement:
“For a people committed to the principle of religious freedom, the way forward is always found through greater respect for the equal rights of all.”
This is at once a great validation of the principle of the American experiment, and a proper reading of the First Amendment, which I heard someone on the radio define as being about freedom of religion. He defined it that way to force the Amendment to support the proposed Blunt amendment, which the Senate narrowly voted down on March 2. The logic is that if religion is protected first, then it’s the most important thing to protect, and therefore needs special protection, or even support. Somehow the First Amendment, which prohibits our federal government from establishing a state religion, or stopping anyone from practicing their religion freely, is really meant to champion certain religious beliefs, and legally protect them.In the cae of the Blunt proposal, a narrow Christian belief about conception would be championed above all other religious beliefs on the same topic, and protected by the federal government.
But the First Amendment protects freedom of speech, press, religion, and right to petition. Each of these is equally important. And the federal government’s role is to protect everyone’s beliefs by refusing to official sanction any of them.
So freedom of religion is about allowing all religious beliefs to thrive naturally, and this means not imposing any one church’s beliefs on others. And the last thing the federal government should do is outsource which beliefs are acceptable or condoned and which are not to the realm of business, where employers would make those decisions.
America has always been great when it extends rights to more people, not when it takes them away. When we allow more people to vote, to go to school, to work, to run for office, to marry, to immigrate here, to speak out, and to worship as they see fit, we’re doing the right thing, the thing America does best—living the experiment of freedom. The way forward is always to enshrine greater respect for the rights of all.
So thank you, Gov. O’Malley, for reiterating that point.
Read Full Post | Make a Comment ( 1 so far )Summarizing the Dred Scott Decision
Here in the final installment of our series on the 1857 Dred Scott decision, we conclude our close reading of Chief Justice Taney’s majority opinion and sum up what the case meant in its own time, and what it means to us today.
Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of citizen to be changed to include black Americans.
Remember that this is Taney’s interpretation; we know that slavery was such a divisive issue amongst the Founders that the new nation was almost torn apart at the Constitutional Convention of 1787. Plenty of Founders did not hold this opinion of black Americans, and even many of those who supported slavery did believe that someday it might be abolished. But we need to stick with Taney’s thinking here to understand his decision.
We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.
Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:
“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”
—So even if not everyone looks down on black people like they did in the past, slavery is law in the U.S., it is supported by the Constitution, and black people are specifically and deliberately excluded from citizenship by the Constitution. You can’t have a liberal interpretation of the Constitution in this regard—it allows no loopholes.
“Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended;”
—At last! Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior?
“…but while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”
—This is an astounding solipsism. Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.
Equally astounding is the next statement, that changing the Constitution (ruling differently on its construction) is not something the judicial branch can do. Taney equates finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.
“And upon a full and careful consideration of the subject, the court is of opinion, that… Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts…”
—After maintaining that the judiciary has no Constitutional role in changing U.S. law, and reiterating that it was no accident that led the Founders to exclude black Americans from citizenship, Taney delivers the actual opinion in Dred Scott v. Sandford: there is no Dred Scott v. Sandford. The case should never have been brought in the first place since black Americans aren’t citizens. Taney is basically saying a) his hands are tied—he could never overturn slavery by amending the perfect Constitution, and b) that option isn’t even open to him since he’s not hearing a case about slavery, but dismissing a wrongful suit.
Now Taney makes a bizarre statement:
“It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a [monetary] or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit.”
—How a judgment in Scott’s favor, which would have made him and his wife free, could make “very little, if any, difference” to that enslaved man is unclear, to put it mildly. Taney seems to be saying, Hey, whatever way we went on this one wouldn’t matter to the slaveholder and the slave themselves, because it’s not about them. The case is about precedent in the law, and if we had ruled at all in this case—either for or against Scott—we would have sanctioned re-interpreting the perfect Constitution, and that would have created a whole new string of precedent that might someday do the “serious mischief and injustice” of outlawing slavery.
“Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no juisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequestly, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.”
—Since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.
And that’s it, for Scott, Sandford, Taney and his Court, and the American people. The Constitution is perfect because it was the work of the Founders who were steeped in the best wisdom of western Civilization, it has been upheld by precedent, and it is not supposed to be amended by anyone, especially not the Judiciary. The Court could amend the Constitution, but until it does that, it won’t do that.
The Dred Scott decision, after close reading, comes across as less a fiery defense of slavery and the idea that black people are inferior than as a lame, panicky, resentful hand-washing by the Court. It does not want to deal with slavery, so it won’t hear the case. It can’t change the Constitution until it does so, and until then the Constitution must be obeyed as-is. Dred Scott is shameful for many reasons, but chief among these, perhaps, is that the highest institution of our Judiciary took a pass on its Constitutionally mandated responsibilities in the name of the Constitution, and doomed its own citizens to slavery without having the guts to admit it.
It would take President Lincoln and his Republican Congress to amend the Constitution to ban slavery, putting that amendment to a vote by the free citizens of the U.S., and finally ending slavery in this country.
Read Full Post | Make a Comment ( 1 so far )Dred Scott: Slavery as “doctrine and principle”
Part three of our look at the 1857 Dred Scott decision comes to the section of Chief Justice Taney’s majority opinion in which he switches from detailing precedent—the ways in which U.S. law has had slavery written into it—to explaining why the Founders did that, why they held racist beliefs about black people, why they had no choice but to respond by writing slavery into U.S. law, and why, therefore, Taney and his Court will have no choice but to uphold that law and to uphold slavery.
Let’s resume the text of the decision; again this is not the complete text, but excerpts taken in order. All italics are mine:
“…[T]he legislation and histories of the time [when the Declaration of Independence was written], and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted….
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery. . . He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”
—Here Taney is not saying, Look at how racist people were back then. He is not just describing a previous time and its beliefs. You have to remember that Taney is writing as the Chief Justice of the Supreme Court, and he is writing about the men who founded our government. This is a civics lesson. Just as we said in the last post, this is not mere private opinion. Because these opinions about black people are in the minds and mouths of the Founders, these opinions literally become the philosophical foundation of our system of government and code of law.
The line that is almost always pulled from this opinion and quoted is the line, “the negro has no rights which the white man is bound to respect”. But notice that this not not a judgment Taney makes; he is describing not his personal opinion or a universal principle but the opinions of the Founders. We know enough by now to recognize that this is citing precedent—Taney is not making a judgment of his own. It’s not Taney saying “the negro has no rights which the white man is bound to respect”, it is the Founders and all U.S. slave law since them. We’ve mentioned in the previous post that the Taney decision actually will be ”this Court has no business even hearing the Dred Scott case because he is not a U.S. citizen, therefore we decline to give a ruling.”
Taney ends that quote by saying none of the Founders ever doubted that their low opinion of black people was correct; he will reiterate this in the next paragraph, in which he expands to say that England, our founding nation, shared the same opinion, and that no one seems to have doubted that it was correct. He then cites some of the slavery laws of the American colonies, and then says,
“[T]hese laws … show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power…
“We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted … in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them [black people], or to give to them or their posterity the benefit of any of its provisions.”
—The first lines give you hope: Taney describes slavery as despotic. He describes a barrier put between black and white and you think, for a moment, that he will describe that barrier as false and wrong. But it is not to be. Remember, the question is not whether slavery is right or wrong. The question is, Is slavery supported and enforced by U.S. law? You may hate slavery, Taney may hate it, but that is not the issue. Support it or hate it, if slavery is enforced by and enshrined in U.S. law, the Court must uphold it. The only alternative is to call slavery unconstitutional.
Why not do just that? Taney is getting to that. Is there an argument to be made that the line “All men are created equal” should now apply to black people? Notice how Taney adds “to black people or their posterity” to the last line above. It’s a quick little clause but it’s important. If the Constitution was not meant to give equal rights to black Americans living at the time of its ratification in 1787, could it possibly be changed to offer those rights to their children and grandchildren?
This is tricky because Taney is asking what the Founders intended for the future. Did they say anything that seems to open the door to freeing black people decades after 1787—i.e., 1857, the year of the Dred Scott case?
“But it is too clear for dispute, that the enslaved African race were not intended to be included… for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appeared, they would have deserved and received universal rebuke and reprobation.”
—Why would including black Americans as equal citizens have exposed the Founders to “rebuke and reprobation”? Because you cannot designate one group of people as inferior, incapable of understanding or law, and then give them full rights of citizenship. That cheapens citizenship, and makes democracy impossible. It’s like making people who can’t swim lifeguards. If you say black people are ignorant and incapable of law, you cannot include them without making your democracy a sham.
“Yet the men who framed this declaration were great men… high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separate from white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.
—It was no accident, it was no oversight. The Founders deliberately excluded black Americans from the definition of citizen, based on the “established doctrine and principles” of the civilized world of their time. They had no choice but to do so—those doctrines and principles demanded it. As “great men”, the Founders could not cheapen and destroy their own democracy by including people who could not live up to it. They could not forsake the judgment of the civilized world (this will be important as we wait to see if Taney will forsake that judgment to overturn slavery). Taney adds,
“This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language…”
—So from 1776 to 1787 there was not change in established doctrine. What about after 1787? Taney nixes the hope that since then there has been any change in doctrine:
“…It would be impossible to enumerate … the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. …The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards… To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given…. “
—Taney then broadens the scope:
“For if [black Americans were] entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.”
—This is complex. Taney is saying that if his Court overturned slavery to make black Americans citizen, two things would happen: a) this would overturn myriad slave laws already in place and serving as part of the precedent of upholding slavery, and b) those laws were put in place for the protection of black Americans. The latter is an example of the popular idea of the mid-19th century that slavery helped black people by protecting them from their own ignorance and other shortcomings.
So overturning slavery as unconstitutional is the only way to break from precedent, but that is hard to do when precedent seems so well-founded in the princples and doctrine of the wisest and best men of western civilization, freedom-loving men who would clearly grant liberty to anyone who deserved it, and compassionate men who put in place laws to help protect those who did not deserve liberty from themselves. Precedent is also enshrined in dozens of state laws.
Taney is moments from his conclusion; we will cover it in the next post. For now, we see that he began by citing precedent in U.S. law supporting slavery. He then reached back to find precedent for U.S. law in colonial and English law. By doing so, he removed racism from the realm of opinion to the realm of principle. Notice again how his own Court, his own decision, has not made an appearance. Taney was not about the make a ruling on the controversial slavery issue. He knew the uproar it would create if his Court found Scott to be free or if it found Scott to be still enslaved. He resented Congress bailing on its duty to write legislation to solve the slavery debate once and for all by throwing the issue at the Court. He therefore turns back to the original legislators, the Founders, to do the dirty work for everyone and uphold slavery.
Read Full Post | Make a Comment ( None so far )Reading the Dred Scott Decision: Precedent, precedent, precedent
Part two of our look at the 1857 Dred Scott decision leads us to do a close reading of the words of its author, Chief Justice Roger Taney. This close reading will show and focus on Taney’s thorough, driving citation of precedent in the question of slavery and race in United States law.
Taney’s citing of precedent serves, as we shall see, two purposes: first, it puts the burden of deciding whether enslaving black people is legal and/or morally justified onto previous generations, removing it from the shoulders or conscience of the Court; second, it makes the question of enslaving black Americans moot, removing the need for the Taney Court to make a decision on this controversial issue.
Let’s begin reading Taney’s majority decision. This is not the full text! It is excerpts taken in order. The full text is far too long for this format. All the italics are my own, to highlight meaning:
“The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution[?]“
—The seemingly meaningless, boilerplate starter “the question is simply this” is actually freighted with meaning. Taney will repeat it later. It serves to say, “We are facing a legal question, as a Court. This means that we must take the issue of slavery as a legal question that has been dealt with in courts before ours, and therefore a thorough examination of precedent—how those earlier courts decided the question—is not only necessary, but will likely answer the question for us.” In our justice system, precedent is very important. If 50 courts before you have decided one way on an issue, you have no legal footing to decide a different way, unless you are going to say the law is unconstitutional and needs to be changed.
The Supreme Court does just that from time to time, of course; there are occasions when it overturns precedent and says an existing law is unconstitutional and therefore all those previous judgments were wrong. But this is rare. So when Taney brings up the definition of “citizen” as specified in the Constitution, you know he is not likely to overturn that definition.
“The question before us is, whether [people of African ancestry] compose a portion of this people [described in the Constitution as citizens], and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
—Again, we have to read this as a description of precedent, not someone’s personal opinion. Yes, Taney says “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution”, but what he is saying is, Because the writers of the Constitution did not intend to include black Americans as citizens, we are forced to think that they cannot now be citizens. Precedent—if the Founders did not specifically include black Americans in the definition of citizen, then that is an important piece of precedent for the Court today to take into consideration.
You may be asking at this point, Where in the Constitution does it say black Americans are not and cannot be U.S. citizens? The Constitution doesn’t say that anywhere. We will deal with that, as Taney does, in our next post. For Taney does, in the second half of his decision, provide and lengthily analyze proofs that the Founders did not include and could not ever have intended to include black Americans as citizens. So for now, let’s continue with his establishment of that precedent.
“On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”
—This is not a burst of personal-opinion racism, but again a description of legal precedent: if the Founders who created our Constitution saw black Americans as inferior, and wrote that into our law, and did not choose to grant them the right and privilege of citizenship because of that perceived inferiority, then we, the Court today in 1857, have to take that into consideration. It wasn’t just a private belief of the Founders; they wrote it into our law. Therefore, racial inequality must be seen as part of our law, and therefore difficult to overturn.
You see how Taney is moving here. He is painstakingly setting Dred Scott up to fail. If racism is not just personal, but legally incorporated into the law of the United States by our Constitution, Taney’s Court is likely going to have no choice but to decide against Scott without even having to think about it, without having to consider Scott’s case. In the eyes of precedent, Scott’s case was heard and decided against him 70 years ago, in 1787, when the Constitution was written and ratified.
“[Therefore Dred Scott] could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”
—This will be the eventual conclusion of this long decision. Since the Constitution says Scott is not a citizen, he has no right to even bring a case into a U.S. court. Again, precedent allows the Taney Court to dodge the controversial bullet of the slavery issue by refusing to even hear the case.
“It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body… And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded…”
—So only those who were deliberately included in the definition of “U.S. citizen” when the Constitution was written in 1787 are citizens today in 1857. And, crucially, people who weren’t included in that definition (immigrants, for the most part) were only able to become citizens if doing so did not overturn the Constitution and “the principles on which it was founded”.
This is important. Taney sees that there are some people who have to become citizens of the U.S., and that they are allowed to do so. How can you give a foreign-born person U.S. citizenship? And how can you give an immigrant citizenship but not a black American, native-born right here in the U.S.? What’s the difference?
Taney is going to answer this question in the second half of his decision, which we’ll look at next time. For now, we see that he has skillfully avoided even dealing with the issue of slavery by using precedent to show that a) you cannot rule against slavery without amending the Constitution; but b) no Court has ever done that, so it’s unlikely that it should be done, and c) the Court couldn’t overturn the Constitution even if it wanted to because Scott, as a non-citizen, can’t bring a case to trial in the U.S. and therefore the case before the Court must be dismissed.
Next time: Why some people could become citizens, but not black Americans
Read Full Post | Make a Comment ( None so far )The Dred Scott Decision: An Investigation
To say that the 1857 Dred Scott Decision is a landmark of U.S. jurisprudence, history, and civil rights is an understatement. It is one of the bare handful of Supreme Court cases and decisions that is regularly studied in U.S. schools (along with Plessy v. Ferguson, Brown v. Board of Education, and the early Marshall decisions). What most Americans learn about Dred Scott is this:
In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.
Chief Justice Taney was firmly pro-slavery and his decision was based on his desire to protect slavery where it existed in the southern states and where it might be outlawed in the west. In his majority decision, Taney said that black Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”
Taney then topped this outrageous statement with the assertion that the Declaration of Independence’s ringing statement that “all men are created equal” did not apply to black people. He wrote, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration…”
Taney’s racism and determination to protect slavery led him to disallow Scott to even present a case to the Supreme Court, since he was not U.S. citizen and to reaffirm not only the legality of slavery but its righteousness. One man’s mission sentenced millions of people to slavery.
This common interpretation of the decision is not quite right. Its outcome was, indeed, that slavery was upheld. But the decision is more a careful avoidance of drawing conclusions about slavery than a pro-slavery manifesto. It is just another in a decades-long series of non-decisions that refused to get the Court involved in the impossibly dangerous slavery debate. The Court had, for years, insisted that Congress fulfill its appointed duty to legislate and create a law to solve the slavery issue once and for all. It would not accept Congress lobbing that hot potato back in its lap.
In the next post, we’ll look briefly at the context of the Dred Scott case, and see why the Court was put in the position of deciding a slavery issue, and why it resisted doing just that so vehemently.
Next time: the slave question in 1857
Read Full Post | Make a Comment ( None so far )Taxation = Slavery
As always, when history is being made in the present, or the present is clearly marked in a historical cycle, we delve into it here on the HP.
In this case, it is the debate in Congress over whether to raise the debt ceiling or default. The main sticking point has been the refusal of a sizable minority of Republicans, mostly belonging to the Tea Party faction, to allow the federal government to collect tax revenue. This group demands tax breaks for the wealthy, including corporations, and the maintenance of tax loopholes that allow millions of dollars of tax revenue to go uncollected.
This is not the place to go into the details of their platform, or the response by moderate Republicans and Democrats. Here, the issue is the extreme instransigence of the Republican minority on the issue of taxation. It has become, to them, a crime for the government to raise taxes or even to collect taxes. To them, there is no compromise on taxation: you are either for it (and therefore un-American) or against it. Again, we’ll leave aside for this post the historical fallacy of anti-tax advocates calling themselves “Tea Party”; read about that here. For now, we’ll focus on the black-and-white issue they have turned taxation into. It’s hard to think of a time when Congress was so completely divided, so unwilling and unable to compromise on an issue; when you look back at our history, only one comparable time comes up—the slavery debates of the late 1850s.
You could not compromise on slavery during those Congresses. You were for it or against it, and this divide worked its way into many other, seemingly unrelated issues, and the uncompromisable issue of slavery could not be resolved. Congress could no longer function to govern the country, and civil war ensued at the 1860 election.
Today, Congress’ refusal to accept compromise on taxation is quite similar to those Congress’ refusal to accept compromise on slavery. But there are two key differences: first, the American people were becoming just as divided over slavery as their representatives; second, slavery really is an issue you can’t seriously compromise on.
Americans in the 1850s didn’t want to fight a war over slavery, but they were rapidly becoming more polarized over it. Even those who didn’t particularly want abolition for morality’s sake blamed slavery for all of America’s ills, and would have gotten rid of it for economic or political reasons. Their representatives’ furor over slavery was not out of line, then, with Americans’ feelings about slavery. It does not seem accurate to make that claim today. Many Tea Party Congress members have said their constituents contacted them to say it’s okay to raise taxes to avoid default, but those members refused to do so out of principle. The extreme polarization in Congress today does not really have its roots in how Americans are feeling.
And taxation is not slavery. It’s not a black-and-white, moral issue that no one can take a moderate stance on. The government raises taxes in order to provide services. It’s a very simple and fundamental tenet of government. We have representation to our government to decide what services and how much taxation, not to stop the collection of tax revenue.
The taxation issue is part of a larger move to reduce the federal government to a negative function: the federal government will not provide social services (no Medicare, Social Security, Head Start, etc.), will not regulate business (protect the environment, police Wall Street, etc.), will not really legislate (instead, Constitutional Amendments will be put in place to handle social issues), amd will not extend civil rights to immigrants, gay people, etc. All it would do under this plan, apparently, is fund wars.
No one really wants to live in that world. It is undemocratic, and unself-sustaining. This experiment with such negative chaos is a dangerous one. The first experiment ended in civil war; it remains to be seen where we are headed in the next 20 years.
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