U.S. Constitution
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 )Ron Paul, secession, and twisting history
Yesterday on the radio show Talk of the Nation (click that to see the transcript we’re working from) Republican Representative Ron Paul was a guest, along with independent Senator Joe Lieberman, talking about what lies ahead after their respective retirements from Congress next year. The host of the show brought up comments Paul made about secession after President Obama’s re-election in November. Some Texans have been talking about their state seceding from the union as a result of this election, and Paul joined in to confirm the right of any state to secede, comparing it, as people defending secession so often have, to the Revolutionary War. Paul made the comments the show was referring to on Fox News’ Cavuto program on December 1 (the lead-in for which was a host saying “Well, President Obama’s in, now more states want out”—surely an exaggeration, given that the number of people signing secession petitions in all of the states involved but Texas range in the low ten-thousands out of populations of millions). Paul began by saying he did not support secession, but averred that secession is allowed in the U.S. He couldn’t say it’s constitutional, of course, because secession is not provided for there, but called upon those ever-flexible Founders to say that secession is a non-extreme idea that they would have supported.
The states which have residents signing petitions are strangely familiar as a group: Texas, Arkansas, Louisiana, Tennessee, Alabama, Georgia, Florida, South and North Carolina (and Arizona, the odd man out here).
On Talk of the Nation, Paul offered this bizarre scenario when asked about his statements: “What if today, Greece, seceded from the European Union? The European Union got together, invaded Greece and killed about 50,000 people? We would frown on that.” One can only extrapolate that Paul is comparing the U.S. Civil War to this EU scenario, and criticizing the U.S. decision to fight the Civil War against the Confederacy (though one can’t figure out where the 50,000 number comes from).
Paul went on to say: “I think the freedom to leave is the description of whether or not you’re free. The Soviet system was so bad you could not leave. If you left, you got shot. So you have to have the right to leave. In secession, leaving—coming together is voluntary, so once you can’t leave, you lose your right of independence and self-determination becomes a very bad situation.”
This is a constant argument that Americans touting the right of secession use and, except for the Soviet reference, of course, the argument proslavery southerners made before the Civil War. The idea is that the United States are united by choice, not force, and therefore are free to leave the union whenever they want. This is simply untrue. Joining was voluntary; continued participation in the union is not. There is no protocol in the Constitution for states to leave the union, because if any state could leave at any time, it would be impossible to maintain a functioning nation. The only attempt by states to leave the union was answered by war. Being required to continue within the union is not equivalent to being imprisoned in a police state. The difference between the Soviet Union and the United States is that citizens of the states are able to participate in politics and create the change they desire.
Referring to the Revolution is also invalid, because the situation of colonies within an empire is not the same as states within the U.S. Colonies are goverened as satellites, without full rights as citizens. Colonies that break away from an empire know they must fight a war to do so, because they have no representation within the government of the empire, and are controlled for profit alone, a profit the empire will not want to lose. The states of the U.S. are not in that situation, as the American colonies once were, and so secession since the War is not the same as fighting for independence from an imperial government.
So far in the radio interview, Paul had only toed the usual misinformed line on secession that aligns it with the Founders and 1776, just as proslavery secessionists did in the late antebellum period. But then he veered into even more myth, claiming that during the War of 1812, New England tried to secede: “If you study history carefully, I think you’ll recognize that it was well accepted and recognized north – the New England states, you know, were much more into secession than South was, you know, early on in the 19th century.”
Unfortunately, host Neal Conant affirmed this myth. The facts, however, are that during the War of 1812, which, like the Revolution, hit New England harder than other regions of the country, some New England Federalists threatened to call a convention to discuss secession. Like all Americans who call for secession, they claimed that they were “defending the true principles of the Constitution and of the nation itself” (Disunion! The Coming of the American Civil War, by Elizabeth Varon, 37). This Federalist fringe was immediately attacked by Democratic Republicans north and south, and by the time of the Hartford Convention in December 1814, any support New England secessionists had had withered away to almost nothing, and attendees of the Convention did not even discuss secession. Southerners, however, would hold the Convention over New England’s head for decades, at first chastising the region for its treason, and, in the 1850s, using the incident as proof that secession was legal (Ibid., 38-9 – for more on the changing nature of secession talk between 1787 and 1861, see Disunion: the battle over slavery before the Civil War).
So secession was never “well accepted and recognized” in the north, nor is it true that “New England states, you know, were much more into secession than South was”. New England was shamed and humiliated for decades afterward by its brief and very partial interest in threatening to secede, and most of that shame and humiliation was heaped on by the south—until the south wanted to defend secession as patriotic, at which point it praised New England for its early bandwagoning.
Paul went on to add to his misinterpretation of history by saying, “they recognized that it wasn’t like – it wasn’t evil, that they weren’t evil people because they wanted to separate themselves”. But of course New Englanders were made to feel evil because of the actions of a small fringe group, and New England in general did not want to separate itself.
Paul then wrapped up by dragging out the tired horse of states’ rights, saying “just having the right to secede or nullify would restrain, you know, the advancement of the central state. Now, if you lean towards saying, well, no, we need a stronger, more centralized control, then, of course, you don’t want that. But those of us who are strict constitutionalists and libertarians and all, we want government, local and at home, and not at the central level because we don’t believe in the central economic planning, whether it’s social planning or economic planning.”
The idea here is that if all the states were individual, not bound in a federal union, each would just have its state government, and we would not be subject to the horrors of big federal government. How “strict constitutionalists” could hold this position,which is clearly not part of the U.S. constitution, is unclear. But the idea that state governments are all good and pure, and would never trample the rights of state citizens like the federal government, and that the states are locked in an eternal battle with the evil empire in Washington, is not only an old one but one that is patently false. If the complaint against the federal government is that power corrupts, and absolute power corrupts absolutely, and so states must strip the federal government of its power, what happens when states have all the power? Then each absolute state government will become absolutely as corrupted as the federal government is believed to be, because each will be the only government for its citizens. If the idea is that a state government is more responsive to its constituents because it is closer to them, and answers only to the people of its own state, that would surely be undone if the state government became the only government, with absolute power, and no outside, federal power to monitor its fairness.
The moral of the interview is: follow whatever political course you like—that’s the premise of the United States. But get the details right, and don’t ignore, or remain ignorant of, historical facts that interfere with your preferred world view. …and if you’re going to advocate “studying history carefully”, make sure you lead by example.
Read Full Post | Make a Comment ( None so far )Puritan law, oligarchy, and the Body of Liberties
Part the last of our series on the 1641 Massachusetts Body of Liberties, the first codification of law in Puritan New England, in which we wrap up our look at this groundbreaking American political document with some thoughts on its meaning in its own time, and in ours.
This first codification of Massachusetts law was, as we saw in part 1, not easily drafted, as the people of the colony resisted doing so for two reasons: first, they felt a body of laws should develop naturally over time, as it had done in England, allowing precedent rather than law-makers to rule the day; and second because their colonial charter forbid them to create any laws “repugnant” to the laws of England, and they were not certain whether the laws they drafted would violate that tenet.
The uncertainty sprang, of course, from the fact that there was no written code of law in England at that time—its famously unwritten constitution was composed of centuries of local custom. But the Puritan leaders, and a growing number of freemen, in Massachusetts were worried about following that tradition in the New World. They worried that legal and court decisions would be made based on opinion, prejudice, or personal agenda rather than an objective striving toward justice. Just four years after landing in America, the Puritans began the lengthy process of drafting a code of laws with input from all the towns, and after six years of canvassing, drafting, reviewing, and revising, the Body of Liberties was published, with copies sent to all the towns to be read aloud and voted on.
The Body was only the first of many Massachusetts codes of law. In 1660 the Body was updated and enlarged (and renamed “Laws and Liberties”), with addenda added each year from 1662-6, and again in 1668. The Laws were revised and rewritten again in 1672, and would evolve over the decades into the state law of Massachusetts.
In its own time, the Body of Liberties was daring and innovative. Daring in that it established an independent government for the colony, with laws clearly not part of English law. The Puritans broke their charter to create their laws, and this is just one example of the commitment the Puritans of the Massachusetts Bay Colony made to independence almost from the moment of their arrival. As we’ve seen elsewhere in Puritan New England on the Edge, 1637, the people of the MBC feared a royal takeover of their colony, expecting warships from England to arrive in Boston harbor at any moment. Their response was to build forts overlooking the harbor and arm them with cannon, making the decision to fight to the death to preserve their religion, their laws, and their liberty.
The Body was innovative in that it set out a relatively brief yet comprehensive set of laws that reinforce a) the rights of freemen; b) the principle that no one is above the law; c) the right to a fair day in court; and d) the need for buy-in from the people themselves, who first helped draft and then voted to approve and accept these laws. This was proto-democracy, and it was not being practiced in any other American colony—or many other places anywhere else in the world.
Today, the Body is mostly unknown to Americans. Most Americans, if asked what they think Puritan laws were like, would come up with the most repressive, draconian, irrational suggestions imaginable. (One example: on a recent tour of sites along the Freedom Trail in Boston, an acquaintance was told by the tour guide that Puritans put people in the stocks for sneezing on a Sunday. The Body, as readers of this series will note, contains no references to sneezing.) Modern-day Americans think of Puritans as witch-crazy religious nuts whose only goal was to oppress people. But we see from our study of the Body that to say this image is unfair is an understatement.
Why the Puritans continue to get such a bad rap is fairly clear: very few people actually read their documents. They read The Scarlet Letter in high school, hear the term “city upon a hill” used to refer to smug arrogance, and learn that Anne Hutchinson was persecuted, along with Quakers, for trying to spread religious tolerance. The overall effect is a rejection of the Puritans as unpleasant and even evil people, a fleeting example of intolerance that was stamped out by later Americans who created a fair Constitution.
Those who actually read what the Puritans wrote, and know what their beliefs and ideals and goals were, may not always come away happy and approving, but they have a much more accurate understanding of these revolutionary people, whose laws, and ideas of justice, in having shaped the political consciousness of Massachusetts, played an important role on the road to American independence and the Constitution we revere today.
Read Full Post | Make a Comment ( 4 so far )Supreme Court ruling on Arizona anti-immigration law: show us your papers
On June 25, the Supreme Court ruled on the provisions of the Arizona state laws meant to prevent illegal Latino immigration and find hidden illegal immigrants already in the state and deport them. Police in the state can stop anyone if they have a “reasonable suspicion” that the person is, or is with, an illegal immigrant. Lyle Mann, Executive Director of Arizona Peace Officers’ Standards and Training Board, created an instructional video for police officers outlining what they should look for when they are assessing whether someone is an illegal immigrant, including “dress, demeanor, unusual or unexplained nervousness” and trouble speaking English.
There are no guidelines given on what illegal immigrants dress like, or what their “demeanor” is. I have never seen a category of clothing online or in a store called “Illegal Immigrant.”
It’s hard to believe that the Court would uphold a provision of the law that allows police officers to act on their sixth-sense, that enshrines “reckoning” as a process upheld by law. But the most controversial provision of the Arizona law was upheld: the “show me your papers” provision requires state law enforcement officials to determine the immigration status of anyone they stop “if there is reason to suspect that the individual might be an illegal immigrant.”
Again, what anyone “suspects” is usually hard to defend in court, but in this case those ”suspicions” were supported. The three provisions blocked by the Court were: (quote from the NYT) “making it a crime for immigrants to fail to register under federal law, making it a crime for illegal immigrants to work or to try find work, and allowing the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law.” This third provision means that the police could arrest a person they think committed a crime that could get them deported. Again, what an officer “suspects” is the core of this provision. Why it was not upheld while the other “suspicion” was is unclear.
Those who say this will not validate and encourage racial profiling are almost certainly fooling themselves. When an officer is asked to look at someone’s clothes that officer is being told, “Illegal immigrants dress a certain way because they all come from Mexico and they all wear this or that kind of jeans, shirts, hats, etc.” When an officer is asked to look for people who can’t speak English well, that officer is naturally going to look for people s/he considers to look “foreign”—a white person is very likely to be overlooked in favor of a darker-skinned person, a person with black hair, etc.: in short, a Mexican.
Because that’s what this law is about in Arizona: stopping Mexican people from crossing the border illegally. It is a law about Mexican immigration, and therefore a law about Mexican people: identifying them and deporting them.
One can only point out that the U.S. only has a problem with illegal immigration because we have made it very difficult to emigrate here legally. This is a policy adopted after WWII. Throughout its long history, the U.S. has often tried to prevent certain people from entering the country—Italians, Chinese, Eastern Europeans, to name a few—but it has never had a blanket policy of trying to stop immigration itself. Today immigrants from any nation face an uphill battle of many years to become citizens that includes having to get an employer to sponsor you for multiple years, tests on American history and government, and paperwork, paperwork, paperwork (which also adds up to money, money, money).
We now make it much harder to become a legal immigrant than we have ever done before. That’s it. It’s not that today’s immigrants are more criminal. It’s not that our own sainted immigrant ancestors were more law-abiding. It’s simply a matter of changing the law to make it harder to become a citizen. What were the “rules” for immigrants coming through Ellis Island for so many years? Look healthy and have your name listed on the register of the ship that brought you. That was it. “If the immigrant’s papers were in order and they were in reasonably good health, the Ellis Island inspection process would last approximately three to five hours. The inspections took place in the Registry Room (or Great Hall), where doctors would briefly scan every immigrant for obvious physical ailments. Doctors at Ellis Island soon became very adept at conducting these ‘six-second physicals.’”
When I visited the Ellis Island museum in 1991, I saw a film that said you also had to provide the address of a friend, sponsor, or family member who would take you in. And off you went. Those rules were pretty easy to follow. If that’s all we asked of Mexican immigrants today, we wouldn’t have illegal immigrants.
Each generation looks back to earlier immigrants as “good,” and views current immigrants as bad. In the 1880s, the Irish were angry at the incoming Italians. In the 1900s, the Italians were banning the Chinese from coming in. As each immigrant group settles in, it tries to keep the next group out.
It’s really time we ended this cycle. Here are some quick pointers:
1. Latin American immigrants are not qualitatively different than previous European immigrants.
2. Spanish-speaking immigrants do NOT refuse to learn English; in fact, the children of Spanish-speaking immigrants are less likely to speak the old language than the children of other groups (that is, more children of Chinese immigrants speak Chinese than children of Mexican immigrants speak Spanish).
3. Your European immigrant ancestors (and mine!) honored nothing when they came to the U.S. but their desire to be here. They didn’t anxiously adhere to “the rules.” They did the bare, bare minimum that was asked of them, which was easy to do.
4. If we reverted to our earlier, extremely simple requirements for entering the country and becoming a citizen, we would not have illegal immigrants. If we choose not to go back to the earlier requirements, we have to explain why.
The usual explanation is that if we made it as simple now as it once was to enter this country and become a citizen, the U.S. would be “flooded” with “waves” of Latin Americans, poor and non-English-speaking, ruining the country. Which is exactly the argument that has always been made against immigrants, be they Irish, German, Italian, Chinese, Jewish, etc. Each group is going to destroy the country and American culture and society. It never seems to happen.
But it might happen now, with Latin American immigrants, not because they will destroy the country but because those in the U.S. who are so afraid of them will rip the country—and the Constitution—apart trying to keep them out. Taking the long view, I can say there’s hope that that won’t happen. But it will take a good fight to get all Americans to realize that the key to this nation’s success has always been the open-door policy.
Immigration will always be with us—thank goodness! The only informed position on the challenges it poses is a historically informed position.
Read Full Post | Make a Comment ( 2 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 )Barriers to your right to vote: 2012
Let’s take a look at the laws currently in place and being introduced every year requiring ID to vote. I’m indebted for much of my data here to the NCSL Voter Identification Requirements webpage. Go there to see a great map (that unfortunately will not let itself be pasted here).
Strict photo: There are currently five states that require you to have a photo ID before you can vote—Kansas, Pennsylvania, Indiana, Tennessee, and Georgia. Mississippi, South Carolina, and Texas have strict photo laws pending. Wisconsin’s strict photo law was declared unconstitutional by its state legislature but is being appealed and could be put into effect by November 2012. So that would make 9 states with strict photo requirements by the end of 2012. At the start of 2011, only Georgia and Indiana had these requirements, so the number has shot up quickly.
What constitutes a photo ID is defined variously in the different states; some do not give examples but merely say it must be issued by the federal government (passport), state government (driver’s license), city government, or military. Pennsylvania includes IDs from “an accredited PA private or public institution of higher learning (student ID) or a PA care facility”. Kansas specifically names ”government-issued concealed carry handgun or weapon license”, so if you own a gun, you get to vote. In Mississippi, if you have a religious conviction against being photographed you can sign an affidavit instead of presenting a photo ID.
Photo: There are currently six states requiring a photo ID—Hawaii, Idaho, South Dakota, Michigan, Louisiana, and Florida. Alabama has a photo ID law pending. The photo ID law, as opposed to “strict photo,” asks voters to show a photo ID but allows other proofs if they don’t have one, such as a voter with a photo ID vouching for you, giving your birth date, or signing an affadavit swearing to your identity.
Non-photo: Eighteen states require non-photo ID—Alaska, Washington, Montana, North Dakota, Utah, Arizona, Colorado, Texas, Oklahoma, Missouri, Arkansas, Alabama, Kentucky, Ohio, Virginia, South Carolina, Delaware, Connecticut, and Rhode Island. Rhode Island is filing for a change to a photo requirement. Non-photo ID includes bank statements, utility bills, and other items mailed to your local address.
No ID: That leaves 30 states with no ID requirement for voting.
What happens if you show up and attempt to vote but you don’t have your state’s required ID? It varies—and here’s where the fundamental emptiness of these laws comes through. In some states, if the local election official knows you, s/he can waive the law. In others, you sign an affidavit. In others, you fill out a provisional ballot which will be counted if you provide ID before the close of voting, or if the county board of election officials decides to accept it. In short, you go ahead and fill out your ballot in most states and if you plead your case it will be accepted.
The kicker here is that in many states, your case is accepted if your name is on the poll list. Which takes us back to square one: in the U.S., all you need to vote is to register. When you register, you are asked to produce ID saying that you are a citizen of the U.S. and have residency in your state. Once you’ve registered, your name goes into the poll list—that big book the election officials find your name in when you go up to them on election day. If your name is on that list, you have already fulfilled the requirements for voting in the U.S., and you should not be forced to show ID. You have already been verified as a U.S. citizen and state resident, and those are the only requirements. Adding photo ID requirements, then, is the equivalent of a poll tax or literacy test, tactics used during the lowest years of Jim Crow to prevent the poor and black Americans from voting. Forcing people to pay a fee to vote, or prove their English literacy, has been declared illegal in this country. Forcing people to show photo ID should be illegal, too.
Who are the people without valid photo IDs in this country? The elderly, who often no longer drive or use a passport; the poor (who are often non-white); and, importantly, illegal immigrants. It is this last group who are the real targets of photo ID laws. Americans have been told there is an epidemic of voting fraud in this country, and that it is being carried out by illegal immigrants. But independent inquiries have turned up no such epidemic, and illegal immgrants are the last people to willingly risk having their status found out by attempting to vote. If you think about it, describing voter fraud in 2012 as someone amassing millions of names, getting them into the list of registered voters, then getting those millions of people to go vote illegally is absurd. Any voting fraud carried out today would be a hacking of the computer systems that tabulate votes, not a hacking of your local registered voters database at town hall.
Photo ID laws are blatant attempts to restrict voting rights. They impact the poor, the non-white, and the elderly—groups assumed to vote Democratic, which may explain the strong Republican backing for these laws. If your name is on the poll list there is no constitutional law requiring you to show more ID than that. Until the accusations of voting fraud are proved, we should all be fighting on our local state level against these laws.
Read Full Post | Make a Comment ( 1 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 )The Slaughterhouse Cases, or, corporations are actually people
Hello and welcome to this post on the 1869 Slaughterhouse Cases, legal decisions that changed the nature of business in the United States forever. It’s hard to believe that such a ground-breaking series of legal cases can be so invisible to the general American public today, but it’s sadly true. So we’re going to take a good look and see how we started down the path of legal rights for corporations and corporations being given the rights of individual citizens.
America, and then the U.S., had been viewed as a land where everyone had the right to rise by working hard from the start of European settlement. The immigrant, the poor person, the obscure and uneducated could always better their lot and improve themselves by working. Only in the U.S. was land freely available and relatively cheap, so anyone could farm if they really worked at it. Only in the U.S. were factories abundant, so anyone, even the unskilled laborer or the city poor, could earn a living wage. One of the most persuasive arguments anti-slavery groups made in the antebellum period was that slave labor robbed free men of the chance to work; the Free Soil political party made right-to-labor its main plank. The U.S. could only be great so long as its citizens had the opportunity to contribute their honest toil to the economy and improve both themselves and their nation.
But until 1869, no official body had made the claim that individuals had a legal right to pursue their occupation, no matter the consequences to others. Everyone had the opportunity to work, but no one had the legal protection to work in any way they saw fit. That would all change with a group of butchers in Louisiana.
In the mid-1800s, many butchers worked just north of New Orleans, throwing their offal into the Mississippi River. The end result was that low tide meant the reek of rotting animal carcasses filled the city, and the city’s drinking water was irredeemably polluted with blood and feces. To remedy this situation (at least for New Orleans), the city government requested that the butchers move their shops south of the city. But this wasn’t the simple offer it seemed: the land south of the city that the butchers were to remove to was owned by the state, which demanded a high rent for the new space. The butchers, fearing bankruptcy if they had to pay the high rents, sued the state and the corporation it had set up to administer the land.
Their claim was not just that the rents were unfair and that the state-owned company had no competition and could therefore raise the rents as high as it liked. That would be simple extortion. Instead, they took their argument to a new level by saying that they had a constitutionally protected right to pursue an occupation, and that forcing them to move deprived the butchers of their right to do their work as they saw fit. If they felt that working upriver from the city of New Orleans was good for their business, then any attempt to remove them—for any reason, even the disease their offal brought to the residents of the city—was an unconstitutional attempt to deprive them of the right to work.
The lower courts which heard this case found in favor of the state, but the butchers persisted, and in 1873 they took their case all the way to the Supreme Court. They also came up with an argument worthy of that highest of courts: the lawyers for the butchers actually went so far as to bring in the newly passed Fourteenth Amendment to support their case. This Amendment was meant to extend federal protection to formerly enslaved black Americans by overriding any possible state or local laws that would deny them due process and basically re-enslave them. The Slaughterhouse lawyers applied it to say that the state was depriving the butchers of their right to work and make a living while denying them due process under the law. You can’t just tell people to move because they’re poisoning a city’s water supply, the lawyers said; you have to take into consideration those people’s right to make a living, and if moving their business will harm that living, they can’t be made to move. People have a constitutionally protected right to work.
The Court found in favor of the state once again, but only by a 5-4 margin. It did not reject the butchers’ claims that they had a constitutional right to practice their profession in the way that seemed best to them. It decided, rather, that the Fourteenth Amendment was only about federal protection of citizenship; it was meant to preserve the citizenship of formerly enslaved people against state laws. Slavery was now illegal, and could not be reinstated by state laws. The butchers had not been deprived of their citizenship. The right to work could be managed by each state as it saw fit, and in the case of the butchers, the state had a clear right to uphold the common good by removing a clear threat to the public health—New Orleans had suffered nearly a dozen cholera outbreaks since 1832, which were clearly related to the offal in the drinking water. The state has a right and a duty to protect its citizens, stated the majority opinion, and the butchers must go.
But the minority opinion latched on to the idea that businesses themselves had a right to exist. Justice Stephen Field wrote in the dissenting opinion,
“It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.
…It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. ” [my italics]
The subtle change going on here is evident, first in the phrase “the just rights of the citizen”. While Field most likely meant it to refer to the men who worked at their jobs, later corporate lawyers and big business owners would morph “citizen” to mean the business itself—the corporation. If a person has the right to work, then doesn’t a business have the right to exist, so it can provide that work? And if a business has a right to exist, it has the right to operate in any way it sees fit. Successful business was determined by profits, and if a profitable company pursued certain business tactics like monopoly or price-fixing or child labor, who could tell that company it had to stop? It was providing work for thousands of people, creating jobs, and fueling the economy. What outside body could decide that those profitable tactics were wrong? How could anything that made money, jobs, and materials be wrong? The law as people knew it simply did not apply to business. Business was a new class of citizen.
Secondly, the right of a government to impose restrictions in the name of the common good and public health and safety is unimpeached only when it is “not in conflict with any constitutional prohibitions”. But if corporations have a constitutionally protected right to exist and conduct business as they see fit, then no government can impose any restrictions on them.
Field went even further, invoking the spectre of “involuntary servitude” and using language [in italics] that seemed to refer to the forced removal of the butchers and the restriction that they work only in one allotted location:
“[It is] clear that [the words "involuntary servitude"] include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. …A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.” [my italics]
(It is bitterly ironic that slavery would come up in this case, as one of the lawyers for the butchers was John A. Campbell, who had resigned from the Supreme Court to serve the Confederacy at the start of the Civil War and spent his post-war career thwarting black Americans’ attempts to enjoy the protections of the Fourteenth Amendment.)
The door was now open to other lawyers representing much bigger clients than the Louisiana butchers to claim that any restrictions on big business was tantamount to slavery. Price-fixing, monopolies, hostile takeovers, graft, child labor, inferior-grade materials (including foodstuffs), corrupt trusts, and other practices would all be protected or ignored by the law on the grounds that these were the necessary components of successful corporations. The U.S. government was particularly susceptible to this argument in 1873. Determined to grow the economy after the Civil War, and devastated by the financial panic of 1873 itself, the government was more willing to let profitable corporations do whatever it took to build the economy.
So corporations began to take on the rights of citizens, and very protected citizens at that, while workers, small businessmen, consumers, and others were relegated to second- or third-class citizens. It would take decades of Progressive reforms, beginning in the late 1800s and lasting into the mid-20th century, to undo the damage and make corporations accountable to the law.
We are seeing a pendulum swing now, though, in the early 21st century, as corporations have gained the status of private citizens so far as political campaign contributions go, and the federal government is loathe to tax corporations appropriately. Who knows what the next Slaughterhouse Case will be?
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.
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