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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, October 13, 2015

Scott v. Sandford

The first Democratic debate is tonight in the midst of a possibly clinching Dodgers/Mets game while last night's game was in the midst of the second segment of the C-SPAN Landmark Cases. This is less important since not only am again pretty familiar with this case (reading more than one book on it etc.), but once it is on, we can view it online along with a bunch of other stuff. The same for the last segment.  There are not only extras but other C-SPAN segments including a lecture by Breyer (saying "Taney" wrong) and a talk by a descendant of the losing parties. 

I only watched the first part of the episode but there was an excellent segment at the historical site where the Scotts once served as slaves to a military doctor that in an effect started it all (he died and his took over but then her brother is the "Sandford" of the case).  I did listen to a talk (looks to be one of the additional video) by a historian who wrote a book on Harriet Scott that helped provide a personal look at not Roger Taney, but the actual ordinary slaves involved.  But, such a personal look at the lives of the people was not covered much in most of the accounts I have read.  And, what of the other side?  A traveling military doctor, a woman that ultimately married a Republican politician and her brother who ultimately wound up in an asylum are prime material historical fiction.  This stuff, along with the issues, is why these cases are such good fodder.

This case is infamous, the "self-inflicted wound."  It should be noted that Congress and others wanted the question of slavery in territories settled by the Supreme Court.  Congress provided an accelerated process of review if some case arose in land obtained out of the Mexican War.  It might not have thought the question would arise as it did, but "whatever the courts say" was repeatedly said as a sort of dodge.  The new President was glad they settled the question and the Democratic Party as a whole was too.  The problem was more the reach there -- wait ... you are saying that even the Douglas popular sovereignty approach, where territories have the power to decide for themselves if slavery is legal is constitutional? A bit much.  It split the party in the end.

The portion of the opinion that struck down the Missouri Compromise could still be a problem even if people wanted them to decide the question. Be careful what you wish for.  It also is an example of a court reaching farther than necessary and doing so using a theory that some accept but was but one of various beliefs held.  This is why it's useful to rule more narrowly, find a ground that is a sort of least common denominator. After all, even not every person in the majority agreed with the reach of Taney's comments on congressional power over the territories.

But, the bad taste that the opinion leaves is more a result of the main opinion (joined by only three justices though on this point others either joined the sentiment or didn't challenge it) saying blacks don't have any rights government need respect under the federal Constitution.  This went beyond even the immediate question since all blacks weren't slaves or even the immediate children or grandchildren of slaves.  The basic problem here is shown by Missouri practice alone -- if blacks had no rights, how could they go to court at all for freedom suits?  Once you have a right to go to state court, diversity jurisdiction (the source of this case) seems apparent. This is so even if, as many courts at time did so hold, blacks did not have rights under the Privileges and Immunities Clause, except perhaps in a few cases (such as in Massachusetts, where blacks had full rights).

To be clear, the problem is not that slavery itself was upheld. The dissents do provide a means to show how the parties here could have won their freedom suits personally.  The case probably was debatable given the law at the time regarding what happens when you take a slave into free territory and then take them back to slave states. The matter of the Missouri Compromise, especially as applied to the federal territory they traveled to, added a special complication. No, the problem was the reach of the language. Blacks (or even slaves -- cited as "persons") having no rights is not required by the Constitution.  In fact, quite the opposite.

A final issue here is again the problem of misguided judicial activism. One target here is the due process component of the opinion, one that actually is minor and a bit confused. The opinion is a lot more concerned with the reach of the Territory Clause and blacks not having rights under the Privileges and Immunities Clause (and one such privilege will be access to diversity jurisdiction -- there is a limited approach there and corporations having only the latter showed it).  But, the opinion did add that people have a right to bring a slave into the territory without seizure improperly applied.  Slaves are "property" and cannot be deprived without due process.

Meanwhile, some radicals on the other side were saying the "liberty" of the black "persons" could not be deprived in federal territories. This shows that we shouldn't throw the baby out with the bathwater here.  The opinion held that allegedly the Constitution cites no power to Congress to invade the rights of slaveholders. The rejoinder being the Territory Clause does and property for that matter is regulated in numerous ways, particularly certain types like shown by gambling laws or slavery codes. The basic germ of an idea of a packet of rights that people have a substantive right to is not wrong.  The opinion handled the question wrongly but such will happen, at times horribly so.  But, the due process gotcha is lame at some point.

The case is interesting for the people involved, as an expression of big questions of the day and as a matter of judicial parties at work. I will end on that point and it is also nicely touched upon in the episode. We even see a copy of the Scotts handwritten petition with their mark ("X") for freedom. And, that was a common thing in slave states, over three hundred freedom suits on record by the number cited in Missouri alone.  Taney's opinion is at times cited to show how originalism is a bad approach but then we got here because the Missouri Supreme Court altered long policy and no longer recognized the rule that residence in free territory even once you come back to Missouri will make you forever free. Why? Changing times warranted a new rule given those darn Northerners were abusing the comity applied.  Was that "living constitutionalism" approach tainted too now? 

No, the devil is in the details. Same here and there are so many, making it a quite fascinating and educational case to continual to examine. Oh, I'll toss in one more thing. Justice Breyer in his talk naturally focused on Justice Curtis' dissent as a well written rejoinder to the plurality opinion recognized as the opinion of the court.  And, though Curtis turned out to be a pretty conservative sort that denounced the Emancipation Proclamation and so forth, it was.  This is perhaps particularly so because it was not a grand proclamation of rights of blacks -- it put forth a limited view on citizen's rights in fact.  But, we should also honor Justice McLean's dissent too, as I noted on this page ten years back. 

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