Today in Supreme Court History: March 17, 1777

3/17/1777: Chief Justice Roger Brooke Taney's birthday.

Comments

[Krychek_2]

A famous originalist.

[Dan Schiavetta]

Indeed.

He was ten years old in 1787 and in his most (in)famous decision perhaps wanted to call everyone back to what certain words meant at that time.

[Cal Cetín]

Slavery in 1787 was an institution which most Founders found embarrassing and which they vaguely hoped would go away in the course of time.

Slavery by 1857 was defended by Southern slaveholders as a good thing.

So if you want the Constitution to evolve based on what "we" (in this case, a slave-state majority on the Supreme Court) thought it should mean, then sure, Dred Scott is what you get.

Of course, judges weren't expected to let the cat out of the bag and admit they were making stuff up - that came later, during a more enlightened age. Back then the judges at least faked adherence to the Constitution, even if the fakery was risible and obvious.

[Krychek_2]

The issue in Dred Scott was not slavery, but citizenship: Could a free black be a citizen of the United States. There is zero question how the founders would have answered that question. Taney was many things, many of them bad, but he did not make it up when he said the original intent was that blacks could not be citizens.

[Cal Cetín]

Curtis' dissent, and Don E. Fehrenbacher's analysis, show the nonoriginalist nature of the citizenship argument.

To take just one example - at the time of the founding free blacks could vote in North Carolina if they met the same qualifications (sex, property) as whites. Being citizen doesn't automatically you can vote, but being able to vote is generally an indication of citizenship. So even a Southern state allowed that free blacks were citizens - and yet the Court said that *no* blacks were citizens at the time of the founding, and could not subsequently become citizens.

[Krychek_2]

OK, you're not distinguishing federal citizenship from state citizenship. They may have been citizens of North Carolina but that did not make them citizens of the United States. Especially under an originalist approach. And the Dred Scott decision was limited to federal citizenship; I don't think anyone seriously disputed that the states were free to set their own citizenship requirements.

Candidly, I think you're engaged in some pretty breathtaking revisionism. The idea of most Southern states joining a federal union that included citizenship for blacks strikes me as absurd, Curtis' dissent notwithstanding.

[Cal Cetín]

"Candidly, I think you’re engaged in some pretty breathtaking revisionism."

Just picking at random from Don E. Fehrenbacher's The Dred Scott Case: Its Significance in American Law and Politics (Oxford University Press, 2001), 67 -

"In 1820, Justice Benjamin Mills, speaking for the Kentucky Court of Appeals, ruled against the validity of a statute that subjected free negroes to a summary punishment of thirty lashes for lifting a hand against a white person. Free persons of color, said Mills, in some measure 'parties to the political compact' and entitled to many - thought not all - of the benefits it provided. The law, accordingly, was contrary to the state constitution."

Aliens and stateless persons would not be considered, even in part, parties to the political compact.

Candidly, you seem to have this unusual moment of rare agreement with Taney for the specific purpose of using him as a battering-ram against originalism - or for that matter any interpretive philosophy which relies on the amendment process to change the Constitution.

But if the Constitution were really interpreted as a living, breathing document, then Taney's opinion represents the evolution of Southern thought (and the Court was majority Southern white) away from Jefferson's "naive" conceptions and toward a "new improved" view.

[Cal Cetín]

To be clear, I'm not even sure I'm an originalist myself - I'm open to other schools which respect the amendment process. But if I want to debate an originalist, I'll take a real originalist, not some Taneyesque strawman.

[Krychek_2]

I agree with Taney that his opinion was an accurate reflection of what most if not all of the framers would have believed about blacks having federal citizenship, so there was no need for anything to evolve. Since I don't have Fehrenbacher's article in front of me, was Judge Mills' opinion based on the state constitution or the federal constitution? Again, the issue is federal citizenship, not state citizenship.

And aliens and stateless persons are partial parties to the political compact. If I'm an alien, the police will (at least in theory) protect me from criminal activity, just as they do for citizens. If I myself am arrested for criminal activity, I get a jury trial and a lawyer; they don't just string me up in the public square. If my house catches fire, the local fire department will come put it out. I don't have all the rights that citizens have, but I have some, for the very obvious reason that that the state wants me to respect the rights of others, even if I'm here as a guest.

You're trying to create an issue where none exists. Taney's opinion was an originalist opinion. Madison would have signed on to it.

[Cal Cetín]

Madsion? Who knows? But consider this:

"A large group of Northern founders, especially “Yankees” from New England, were deeply uncomfortable with the *new-fangled racial ideology* [emphasis added] being pushed by their Southern brethren, including Thomas Jefferson and Andrew Jackson. In Boston and New York, leaders like John Hancock and Aaron Burr actively recruited “electors of color” after the American Revolution. By James Madison’s administration, his supporters spoke derisively of black Federalists in port towns like Salem and Portland, Maine, where they began gaining minor patronage positions. In 1813, Manhattan’s black voters were blamed for Federalists retaking the State Assembly."

https://www.bostonglobe.com/ideas/2015/03/12/fight-for-black-voting-rights-precedes-constitution/VM0V8vsrIFHXxPb1Qv9kAJ/story.html

[Krychek_2]

Madison owned slaves; the safe bet is that he would have signed on to Taney's opinion.

You've not yet stated an essential element of your argument, which is that the "new fangled racial ideology" was in fact new fangled, rather than being what people in the South had believed all along. At the time the Constitution was written, it explicitly permitted the continued importation of slaves until 1808. Since there was no serious talk of black equality -- or federal citizenship -- there was nothing for them to be up in arms about. Later, when it began to look like the slaves might actually gain their freedom at some point, that latent racism simply became patent. There was plenty of anti-Semitism in Germany long before Hitler, too.

Do you have anything that explicitly says that anyone at the time considered blacks to be federal citizens? Because if your position is correct, there should be something somewhere that actually says so.

[Cal Cetín]

"Do you have anything that explicitly says that anyone at the time considered blacks to be federal citizens?"

I'm going to undertake the somewhat easier task of deconstructing Taney's opinion, which you claim is originalist.

Consider the proposition you're defending - Taney's opinion (at least as you describe it) is that the Founders were in many cases willing to accept free blacks as *state* citizens, sometimes including the right vote, but that they drew the line at federal citizenship with the right to sue in diversity jurisdiction, etc.

That's the burden you've assumed. That states (including some Southern states) would let free blacks vote because that's just state citizenship stuff, but *definitely* wouldn't want them to have federal citizenship.

[Cal Cetín]

Again, here are the "originalist" propositions you are defending:

"In the opinion of the court, the legislation and histories of the times, 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. But the public history of every European nation displays it in a manner too plain to be mistaken.

"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"

How do you reconcile that with the examples I've cited from North Carolina and Kentucky? You can't.

[Cal Cetín]

Again, not the phrase "social *or political* relations." Yet you've acknowledged some southern states allowed political relations with some free blacks.

[Cal Cetín]

*note* the phrase

[Krychek_2]

"I’m going to undertake the somewhat easier task of deconstructing Taney’s opinion, which you claim is originalist."

But the task I suggested, of finding someone who explicitly stated in or around 1789, that blacks were federal citizens, should be doable with a five minute google search if such someone actually existed. So the far simpler task would have been to do a five minute google search and find me the guy who said that.

That aside, as for Taney's opinion, its is perfectly possible to simultaneously believe (a) that blacks are inferior to whites; and (b) if Kentucky and North Carolina nevertheless want to treat them as citizens for state law purposes, that's their business. At worst, Taney was mistaken as to his history.

Find me someone from around the time the Constitution was ratified who said that blacks were federal citizens.

[Cal Cetín]

I'm going to nitpick a little and suggest that since you began by Taney was an originalist - which you later clarified as meaning that his opinion was not only an originalist opinion, indeed the only possible originalist opinion - then the burden is on you to prove what you asserted. I'd like to clear the Founders of the specific accusation you made against them, then with the rubbish of Taney's opinion cleared away, we can discuss whether citizenship in the United States, before the Civil War, was distinct from state citizenship which admittedly included blacks.

"At worst, Taney was mistaken as to his history."

...and at worst, Anne Boleyn only got her neck cut.

Once you concede Taney was wrong with his history, how can you support your claim that he wrote an originalist opinion?

Taney's opinion said the founders found descendants of African slaves "altogether unfit" to have "political relations" with the whites. This is wrong, as you seem to acknowledge, given the states (including Southern states) which allowed free black voting.

Are you still going to defend Taney's originalism?

[Krychek_2]

But I didn't say Taney was wrong with his history; I said "at worst" Taney was wrong with his history. I don't think he was.

Few opinions are ever unanimous. Virginia just abolished the death penalty but that doesn't mean the South is anti-death penalty. Illinois legalized gay sex in 1961, but that doesn't mean that in 1961 the nation as a whole was pro gay. California legalized abortion in 1967 but that doesn't mean that in 1967 the whole country was pro-abortion. You're always going to find individual states here and there who are not reflective of where the nation is as a whole.

From other conversations we've had, you seem to think that so long as you can find an exception, a general rule doesn't apply, and that's not so. Taken as a whole, the founders would not have thought that blacks were citizens. Taney reflected the views of the founders.

[Cal Cetín]

"From other conversations we’ve had, you seem to think that so long as you can find an exception, a general rule doesn’t apply, and that’s not so."

What? I quoted Taney's own language - "altogether unfit" for "political relations" with whites. That's an absolute claim that the Founding generation categorically ruled out "political relations," which is false.

You undertook to defend Taney's opinion, not simply his conclusion, as originalist. Taney chose to speak in absolutes, so I can absolutely rebut him by finding exceptions.

[Krychek_2]

Where does Taney say that there are zero exceptions to his general statements? Not in the passage you've cited. In fact, he talks about prevailing public opinion; "prevailing" and "unanimous" are two different things.

The thing with general statements is that they're generally true, not that you can never find an exception. It's generally true that I have oatmeal for breakfast, although once in a while I'm in the mood for eggs. It's generally true that Anchorage is cold in January but you can probably find an occasional warm day. And it's generally true that Republicans are anti-abortion, although there is Susan Collins.

No, a few exceptions do not change the validity of general statements.

[Cal Cetín]

Taney said “altogether unfit” for “political relations."

What does "altogether" mean? According to Samuel Johnson, it means "completely; without restriction; without exception."

https://johnsonsdictionaryonline.com/page-view/?i=118

So if there were exceptions, as you acknowledge, they were not deemed *altogether* unfit for political relations.

[Cal Cetín]

And Noah Webster's dictionary of 1828? Glad you asked:

"Wholly; entirely; completely; without exception."

http://webstersdictionary1828.com/Dictionary/altogether

[Krychek_2]

Dude, "altogether unfit" is modified by the previous paragraph's "prevailing public opinion." The majority public opinion -- he doesn't say unanimous -- is that they were altogether unfit.

I don't know why you're so determined that Taney not be an originalist, but at this point you're grasping.

[Cal Cetín]

A "public opinion" which somehow did not "prevail" in the southern slave state of North Carolina, or in other states with black voting rights. These are not outliers, and they do not fit with Taney's language despite your efforts.

You've narrowed down Taney's absolutist language until it says "blacks had no political rights except when they did." Which is frankly not what Taney said at all.

I'm not sure why you are trying to rehabilitate not only Taney's conclusion, but his reasoning - which met with criticism at the time, not simply today in hindsight, and which is rebutted by the evidence except by twisting Taney's absolute language into pretzel shapes.

[Cal Cetín]

The paragraph about prevailing opinion, which I've quoted above and will quote again, doesn't help you or poor Roger:

"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. But the public history of every European nation displays it in *a manner too plain to be mistaken*."

Seriously? You're going to say that the absolute language about political rights is contextualized and relativized by the reference to a public opinion displayed by "every European nation...in a manner too plain to be mistaken"?

Nothing relative there. Nothing there about "political rights except where there aren't." Try again.

[Krychek_2]

No need to try again since your only argument at this point seems to be "la la la I can't hear you."

You've failed to distinguish state citizenship from federal citizenship, and the two states you cited involved state citizenship. You've failed to find anyone who said, back in 1789 that federal citizenship included blacks. In short, you haven't come up with anything that actually supports the point you're trying to make.

Going on to other things now.

[Cal Cetín]

"the point you’re trying to make"

...is that you and Taney are wrong. You didn't support his claims or show that he was a true originalist.

You simply want to praise Taney as writing an originalist opinion, then when I show the reasoning is wrong, expect me to prove the *result* was wrong (which I think I did anyway).

Bye.

[Cal Cetín]

Taney made some assertions in his opinion which I showed to be wrong. You tried to twist Taney's words to make his statements true, but your effort was risible.

[Cal Cetín]

To rescue your lame efforts, you try to shift the burden of proof. You start with the assumption that the Founders agreed with Taney, and Lincoln and others who criticized Taney were simply wrong, and insist that I stop picking apart Taney's opinion, which you tacitly admit you can't defend.

"Leave Roger alone!"

[Cal Cetín]

"Since I don’t have Fehrenbacher’s article in front of me"

Book. His book.

[Cal Cetín]

...and the part I cited, I found by looking at Amazon excerpts online. I'd read the book before, but I don't have it on me right now.

[Dan Schiavetta]

You’re quite right about the change in attitude on the part of slave owners between the Washington generation and the Calhoun generation. It was probably a result of the cotton gin and the growth of “King Cotton”.

Krychek is also correct though.

[Cal Cetín]

You're one of the few people today who still believe what Taney said. What else of his opinions do you believe?

He said he was carrying out the intent of the Framers, but Curtis' dissent showed him wrong.

[Alpheus W Drinkwater]

No it didn't. It showed that determining the intent of the Framers to any degree of certainty is just a subjective exercise. And they were over 150 years closer to the framing.

[Dan Schiavetta]

This is quite correct.

If you could go back in time and ask all 39 signers of the Constitution as to what various provisions meant, you'd probably get 39 different answers.

[Cal Cetín]

"It showed that determining the intent of the Framers to any degree of certainty is just a subjective exercise."

Well, Krychek thought he got the intent of the Founders down pat: "The idea of most Southern states joining a federal union that included citizenship for blacks strikes me as absurd, Curtis’ dissent notwithstanding."

[Dan Schiavetta]

He is correct about that.

Slave states would not have joined a federal union where blacks could have citizenship in that union.

[Cal Cetín]

Also, "Taney’s opinion was an originalist opinion. Madison would have signed on to it."

[Alpheus W Drinkwater]

Yeah, I'm not sure I agree with Krychek on that. But I don't really disagree either. I don't think there's any way to know. It's the main reason I can't really buy originalism as the sole source of constitutional interpretation.

[Cal Cetín]

Once we've got Taney's misguided opinion out of the way, we can consider afresh whether the antebellum Constitution *categorically* denied U. S. citizenship to the free descendants of African slaves.

They obviously had *state* citizenship in some states - was there a hard and fast distinction (at least as far as native-born free persons are concerned) between state and federal citizenship such that blacks were not U. S. citizens but could be state citizens.

It's, at the very least, not intuitively obvious, and one doesn't have to be a "pure" originalist to say that a more economical reading of the Constitution, one more faithful to our republican (small-r) aspirations, is that American freeborn persons, not owing allegiance to foreign powers or born to parents who owed such allegiance, were American citizens. Certainly it's the interpretation which causes least difficulty from the standpoint of both internal coherence and justice. And nothing in the text forbids it.

[Krychek_2]

The preamble to the Constitution talks about "our posterity" and I think it's a fair question who the "our" is.

But I think your premise is wrong. I think that in 1789, it likely would have been thought too obvious that blacks were not citizens that there was no need to talk about it. And because there were certainly a lot of people who would have taken that position in 1789, had the framers intended that blacks be included I think they would have said something. (If they had said something, it probably would have guaranteed no Southern state would ratify the Constitution.) They also didn't say anything about Indians being citizens. Or about women being able to vote. Given what we know about the mores of the time, I think it's because they thought there was no reason to state what was already assumed.

[Cal Cetín]

"had the framers intended"

I can't speak for "pure" originalists, but I'm talking about the text that was adopted, not what was in the minds of the Founders - and Madison, whom you mentioned above, wrote (I believe) that the intent of the ratifiers, not of the Constitutional Convention members, was what counted in looking to intent.

[Cal Cetín]

"The preamble to the Constitution talks about “our posterity” and I think it’s a fair question who the “our” is."

When constitutional standing was *explicitly* extended to former slaves and descendants of slaves, after the Civil War, they didn't think the preamble needed updating - presumably because they thought it was fine as it was, if you give "our" a broad historical interpretation.

[DaivdBehar]

OMG. Lawyer, Democrat, white supremacist, traitor, appointed by Jackson.

Dred Scott violated Article I Section 1 by cancelling a law that had prevented war for 30 years. It violated a ratified international treaty with Canada. It was the first expression of judicial review, a lawless catastrophic lawyer doctrine. The Civil War it caused killed 600000 people, like 2 million for today's population.

Lincoln issued his arrest warrant for treason. A lawyer in the room persuaded Lincoln to take it back from the hand of a Federal Marshall. Instead of being hanged, Taney died a slow horrifying death over several more years.

You fucking lawyers are a trip. You need to be stopped. You may say, the past. No, the slaughter of innocent babies by judicial review continues today (2020) and in the millions, not in the thousands.

[SMP0328]

Hyperbole much? As for judicial review, it was first recognized by the Supreme Court in Marbury v. Madison (1803).

[DaivdBehar]

All lawyers are deniers. They do not argue in good faith.

[DaivdBehar]

Marbury was unethical and lawless.

John Marshall is the greatest Chief Justice of the Supreme Court, Marbury v. Madison, 1803, the most important case. These are accepted dogma down to grade school. Arcane lawyer textbooks mention ethics problems, but quickly gloss over (1,2). Critical reviews go unread, not even referenced (3).

Facts

1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).

2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.

3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.

4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.

5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.

6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).

7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)

Judge Disqualification in 1803

In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.

Judge Disqualification Today

28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).

Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
is involved.

No waiver from the party adversely affected is permitted (Section 455 (e)).

Recourse.

There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.

Exclusionary Rule II

What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.

Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.

Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.

Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.

Footnotes

1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.

[Alpheus W Drinkwater]

"Marbury was unethical and lawless."

I guess you mean the opinion, and not the guy. Marbury just wanted his commission. He was being used by opposing sides in a bigger conflict. He was the Little Sisters of the Poor of the 1800s.

[DaivdBehar]

I agree.

[Cal Cetín]

Happy birthday to you
and if my calculations are true
when you were 52
your life was 3/5 of the way through

[Alpheus W Drinkwater]

Judging Taney's entire career by Dred Scott is a bit unfortunate. He had a distinguished record before he joined the court, and he was a pretty good CJ on the whole, I'd argue. He certainly didn't go out at the top of his game.

[Cal Cetín]

"I gave extensively to charity, but do they call me McTavish the Generous? Nooo."

Well, those of you who've heard similar jokes can fill in from here.